People v. Davis

• Decision Date: 21 January 1958
• Docket Number: Cr. 5929
• Citation: 157 Cal.App.2d 33,320 P.2d 88
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Donald DAVIS and Manuel Escarrega, Defendants, Bruce Donald Davis, Defendant and Appellant.

Page 88

320 P.2d 88

157 Cal.App.2d 33

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Donald DAVIS and Manuel Escarrega, Defendants Bruce Donald Davis, Defendant and Appellant.

Cr. 5929.

District Court of Appeal, Second District, Division 3, California.

Jan. 21, 1958.

Thomas H. Greenwald, Los Angeles, for appeallant.

Edmund G. Brown, Atty. Gen., and Herschel T. Elkins, Deputy Atty. Gen., for respondent.

VALLEE, Justice

By information defendant was accused of carrying concealed within an automobile under his control a .38-caliber revolver in violation of section 12025 of the Penal Code. He was also accused of having been convicted of two prior felonies and with having served a prison term for each. He pleaded not guilty, denied the first prior conviction, and admitted the second. A jury trial was duly waived. On stipulation of counsel for the People and defendant, the People's case was submitted on the testimony taken at the preliminary examination. Additional evidence was taken. Defendant was found guilty and the first prior conviction was found to be true. He appeals from the judgment and an order denying his motion for a new trial.

First it is defendant's contention that the court erred in basing his conviction in part on the evidence in the preliminary transcript for the reason he did not personally waive his right to be confronted by the witnesses against him. The point is not meritorious. Defendant's counsel and the district attorney in open court in the presence of defendant stipulated that the People's case be submitted on the evidence in the preliminary transcript. It is well settled that the right of a defendant to be confronted with the witnesses against him may be waived, and that such waiver is accomplished when counsel for the defendant stipulates that the evidence taken at the preliminary examination may be considered by the court as evidence at the trial. People v. Hart, 121 Cal.App.2d 301, 262 P.2d 865; People v. Donnelly, 95 Cal.App.2d 595, 597-598, 213 P.2d 502.

The revolver alleged to have been concealed in the vehicle under defendant's control was received in evidence. Defendant urges that it was error to admit it in evidence. He argues there was no showing that the police had a warrant or probable cause to search his automobile and that therefore the search was unlawful and the fruits thereof should not have been admitted as evidence. Defendant did not object to the introduction of the revolver in evidence. Having failed to object at the trial, he may not complain on review. People v. Kitchens, 46 Cal.2d 260, 262, 294 P.2d 17; People v. Howard, 150 Cal.App.2d 428, 310 P.2d 120.

Lastly, defendant contends that evidence is infufficient to sustain the finding that he was guilty of the offense charged. On October 25, 1956 Officer Dunham saw defendant, one Escarrega, one Pompey, and a gril named Dolores Simmons driving in an automobile south on Figueroa Street at 42nd Street in Los Angeles. Defendant was driving the automobile, the gril was sitting in the center on the front seat; Pompey was on the right in the front seat; Escarrega was on the rear seat to the left. The vehicle was stopped and searched. Under the driver's seat a .38-caliber revolver was found loaded with five rounds of .38-caliber short ammunition.

On the same day, Officer Smart talked to defendant, Escarrega, and Pompey together. Each denied ownership of the gun. Then Escarrega said, 'Pompey knew nothing of the gun; that he was clean.' Defendant said, 'Pompey knew nothing of the...