People v. Derango

• Decision Date: 29 January 1981
• Docket Number: Cr. 20031
• Citation: 115 Cal.App.3d 583,171 Cal.Rptr. 429
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory John DeRANGO, Defendant and Appellant.

Page 429

171 Cal.Rptr. 429

115 Cal.App.3d 583

The PEOPLE, Plaintiff and Respondent, v. Gregory John DeRANGO, Defendant and Appellant.

Cr. 20031.

Court of Appeal, First District, Division 1, California.

Jan. 29, 1981.

Hearing Denied April 1, 1981.

Richard A. Zitrin, San Francisco (court-appointed), for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Ronald E. Niver, Robert R. Granucci, Michael I. Mintz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ELKINGTON, Acting Presiding Justice.

Defendant DeRango's appeal is from the superior court's "judgment, verdict and sentence ... denying probation ...." We treat it, as obviously intended, as an appeal from an order of commitment to the California Youth Authority.

The appeal's critical issue concerns the validity of the superior court's ruling permitting evidence of an uncharged earlier burglary against DeRango, upon his trial for burglary by use of an acetylene torch in violation of Penal Code section 464.

At the trial, from evidence adduced and reasonable inferences derivable therefrom, the jury could reasonably, and presumably did, find the following to be true. (See People v. Green, 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468; Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 427 P.2d 805.)

DeRango had been employed by Marin Car Wash/gas station for about one and a half years. The business premises contained a safe with two separate compartments, one above the other. The floor of the upper compartment was furnished with a slot through which money and credit card slips might be passed into the lower compartment where the greater part of the cash receipts was ordinarily kept. Each of the safe's two doors had a separate and independent four-digit combination lock. About 7, including DeRango, of the 25 to 30 employees of the business had access to, and had been given the combination of, the upper compartment. When the combination was occasionally changed it was "given out" to the various employees who were entitled to it, including DeRango. Entrance to the safe's lower compartment, and knowledge of its combination, was restricted to the owner and two higher-level employees.

The Marin Car Wash/gas station was kept open for business seven days a week, but its Saturday and Sunday cash receipts, known to many if not all of its employees, were not banked until the following Monday.

DeRango was familiar with the use of acetylene torches for cutting metal. He had studied the technique in high school and had operated such equipment in the course of his employment. On one occasion he had borrowed his employer's "torch," with its "entire assembly," for almost two weeks. Such a torch, as is well known, will be activated by matches.

DeRango had previously worked for "Motorcycles Unlimited, Inc.," a "motorcycle sales, parts and a repair shop" which he continued to frequent "virtually every day."

One evening during the month of January 1978, the business premises of Marin Car Wash/gas station were burglarized. The burglar, operating the combination of the safe's upper compartment had stolen about $300. The safe's lower compartment had not been molested. The building had been entered by someone who had gone in under a "locked" sliding door; "The locking mechanism (had) been made inoperative because the sliding bars can be moved out of place and the door can be opened."

The combination of the safe's upper compartment was changed May 4, 1978. DeRango "quit" his employment the next day, May 5, 1978. The safe's upper combination was not again changed until June 14, 1978. DeRango kept returning to the business premises after he had quit, at least "twice a day" to visit his "good buddies ...." He stated: "I had a lot of friends that worked there that I met over the two years. I would go back and see them and pick them up when they got off work, ..."

On the evening of Sunday, June 11, 1978, while the safe's upper door's combination remained unchanged, the Marin Car Wash/gas station was again burglarized. Entry had once more been made under the premises' defectively locked sliding door. The safe's upper door was again opened by someone with knowledge of its combination. A large quantity of water had then been poured through the slot to the lower compartment, apparently to retard the burning of its contents. The lower combination was then "cut" out by means of the premises' acetylene torch. Entrance to the safe's lower compartment was thus gained and the weekend's receipts of about $7,000 were stolen.

Upon discovery of the burglary on Monday morning, sheriff's officers called to the scene found a used "Motorcycles Unlimited, Inc." matchbook on the floor near the safe, and DeRango's palmprint was found upon the freshly cleaned, white-painted surface of a cabinet in which the safe was enclosed. The palmprint's location was about 16 inches from the floor.

In the months following the burglary DeRango paid $1,600 down for a $2,800 1972 Toyota and $500 down for a new motorcycle. The money, he testified, was borrowed; the loans themselves were uncorroborated.

During DeRango's trial, the People offered in evidence a purported admission by him that he had committed the earlier, January 1978, burglary. Following a hearing, the trial court ruled that the evidence was admissible and would be allowed. It is that ruling, and the ensuing evidence, upon which the several claims of error on DeRango's appeal are founded.

(It is significant that at no time during the trial did DeRango, who testified on his own behalf, deny that he had made the subject admission.)

The criticized ruling was founded upon Evidence Code section 1101, authorizing admission of such evidence "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts."

Evidence Code section 1101 codifies long-existing rules followed by the courts of California.

"As a general rule evidence of other crimes is inadmissible when offered solely to prove criminal disposition or propensity to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect.... However, evidence which is otherwise relevant 'is not excluded because it reveals the commission of an offense other than that charged' ... where 'it tends logically, naturally, and by reasonable inference, to establish any fact material for the People or to overcome any material matter sought to be proved by the defense' .... It is settled that evidence of other crimes is ordinarily admissible despite the prejudicial effect where it tends to establish guilty knowledge, motive, intent, or presence of a common design or plan." (People v. Hill, 66 Cal.2d 536, 556-557, 58 Cal.Rptr. 340, 426 P.2d 908 (cert. den., 390 U.S. 911, 88 S.Ct. 838, 19 L.Ed.2d 884); emphasis added.)

"When ... a primary issue of fact is whether the defendant rather than some other person committed the charged offense, evidence of uncharged offenses is ordinarily admissible if it discloses a distinctive modus operandi common both to the charged and uncharged offenses.... A modus operandi gives rise to a reasonable inference that the charged and uncharged offenses were committed by the same person when the marks common to those offenses set them apart from other offenses of the same general variety." (People v. Matson, 13 Cal.3d 35, 40, 117 Cal.Rptr. 664, 528 P.2d 752.)

Thus evidence of an uncharged offense will ordinarily be permitted where it "tends to show ... a peculiar or characteristic behavior pattern ... which is manifest in the conduct of the transgressor in both crimes" (People v. Cavanaugh, 44...