People v. Enos, Cr. 10586

CourtCalifornia Court of Appeals
Citation34 Cal.App.3d 25,109 Cal.Rptr. 876
Decision Date27 August 1973
Docket NumberCr. 10586
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Manuel T. ENOS, Defendant and Appellant.

G. Kip Edwards, San Francisco, for defendant and appellant, (by appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction of second degree burglary. (Pen.Code, § 459.)

The Substantive Charge

The criminal proceedings against defendant arose from an incident occurring on October 15, 1971. At 9 a.m. on that day the doorbell rang at the home of Dr. and Mrs. Clark Kistler, who resided at 83 Almond Avenue, Los Altos. Mrs. Kistler saw a man through the hall window and went to put on a robe before answering the door. When she opened the door, the man was no longer there, but an orange Volkswagen was parked in her driveway.

Mrs. Kistler then went outside to look around and saw a man standing in the back of the garage, facing a tool chest. She did not see anything in his hands, but when she spoke the man moved and she heard a metallic, clanging sound. According to her testimony the following conversation took place: 'What was it that you wanted?' she inquired. The man responded, 'I was looking for the man who lives here. He told me to pick up some tools.' Mrs. Kistler replied, 'That couldn't be right. There must be some mistake.' The man then asked, 'Mr. Sanderson doesn't live here?' 'No,' Mrs. Kistler said, 'Mr. Sanderson doesn't live here.' The man inquired, 'Isn't this 84?' Mrs. Kistler replied, 'No, this is 83.' The man then left and drove away.

Dr. Kistler's tools were in order when he left that morning. However, when he returned for lunch, he noticed several tools, some in a metal box, in the middle of the garage floor. Nothing appeared to be missing from the garage.

Mrs. Kistler identified defendant as the man she saw through the hall window and as the man standing in the back of the garage with whom she had the conversation above narrated. Mrs. Kistler testified that there was no house numbered '84' on the street where her house was located and that the number '83' appeared on the outside of her home and garage doors.

Defendant testified that on that day he was looking for a friend who lived in a white house. He declined to give the friend's name. He stated that he parked his car in the driveway, knocked on the door, and, receiving no response, returned to his car. As he passed the garage, he noticed a flag on the wall and entered to look at it. He denied moving any tools within the garage or telling Mrs. Kistler that he was there to pick up tools. He stated that the metallic noise heard by Mrs. Kistler occurred when he dropped his key chain which has a large medallion attached to it.

Defendant admitted a prior conviction in 1961 for possession of a narcotic, and the jury was instructed that the jury might consider this conviction in assessing defendant's credibility.

Prior Acts

The prosecution was permitted to introduce evidence of two alleged similar acts committed by defendant over defendant's objection. In his offer of proof the prosecutor outlined the nature of the testimony to be adduced to establish the alleged similar acts but at no time did he indicate to the court the specific issue which would make the evidence of the other acts relevant. In the colloquy between court and counsel the attorney for defendant stated that identity would not be an issue since defendant would admit that he was the person present at the Kistler premises with whom Mrs. Kistler spoke on the date of the instant incident giving rise to the charge of burglary. Upon inquiry of defense counsel by the court as to whether intent was an issue, counsel responded that it was. The trial court then indicated that it would admit the evidence of the alleged similar acts and overruled defendant's objection. The two prior incidents were alleged to have occurred on November 10, 1970 and September 15, 1971. The instant incident occurred on October 15, 1971. No contention is made that evidence of the prior incidents was too remote.

In its instructions to the jury with respect to the prior incidents the trial court instructed, with particular regard to the purpose for which this evidence was received, that it was admitted to show motive, intent, knowledge or possession of the means useful or necessary for the commission of the crime charged, and as a characteristic method, plan or scheme similar to the commission of the offense in this case.

A. Incident of November 10, 1970

Officer Ron Tannehill of the San Jose Police Department testified that on November 10, 1970, he and his partner, Officer Wittenberg, were working as undercover agents in the business area of San Jose. At about 3:55 p.m. Tannehill observed defendant standing on the sidewalk talking with three other people. Defendant then got into a car parked on the street. Tannehill approached the car, and as he did so he saw defendant place his feet on a box located on the floor of the car.

At this point in the officer's testimony defense counsel was permitted to Voir dire the witness outside the presence of the jury. The following facts were disclosed during the Voir dire:

Defendant and the three people to whom he had been talking got into a car legally parked on the street. Defendant was seated in the rear seat on the passenger side, on the traffic side of the car. According to the officer, the two officers approached the car because they suspected that the woman in the car was the subject of a felony arrest warrant. Their suspicion proved to be incorrect.

As they approached the car the officers saw defendant place a leather jacket over an unknown object in the front seat. Tannehill testified that it appeared as if he were trying to conceal something. Defendant was also observed placing his feet on a box on the floor.

The officers learned that the car belonged to defendant and began questioning him. Defendant indicated that the box contained a projector which belonged to his wife. He further indicated that he was attempting to sell it at a pawn shop. The persons in the car were ordered out of the vehicle and Officer Wittenberg questioned defendant. Identification and warrant checks were run on all four persons and no warrants were found to exist.

Tannehill testified that he saw his partner make a 'pat' search of defendant. He stated that he believed defendant to be armed because of the nature of the area, the people he was with and 'circumstances.' Tannehill stated that he had knowledge of two of the people with defendant and knew that they had arrest records. The officer stated that he did not know defendant. The search of defendant produced what appeared to be a narcotics kit and defendant was arrested.

During further conversation with defendant Tannehill concluded that he changed his story as far as ownership and possession of the property in the car. The officers then suspected that the property was stolen and arrested defendant for possession of stolen property and confiscated the property in the car.

Tannehill testified that defendant was given the Miranda warning (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) but the record is unclear as to when it was given. Tannehill stated the warning was given before the conflicting statements were allegedly made by defendant, but his testimony seems to indicate that no further questioning took place after the Miranda warning. The officer then stated that the search of defendant's person took place after defendant had given different versions as to his possession of the property.

The defense contended that the 'pat' search and detention were unlawful and moved to suppress the evidence that resulted from these occurrences. The motion was denied.

The jury returned and Tannehill testified as to the discovery of certain articles during the vehicle search after defendant had been arrested. These articles consisted of a projector, two electric drills, an electric drill bit set, a lawn mower, a projector table, and an electric razor. The projector was found in the immediate area of defendant and the remaining articles were found in the glove compartment and the trunk and the back seat.

After the officer's testimony Christopher Jahnsen testified that his garage and home had been broken into on the morning of November 10, 1970, and that a Kodak projector, an electric shaver, a power saw, and some tools were missing. As to the property seized by the officers as a result of the search of defendant's automobile Jahnsen identified the electric razor and the box in which his projector had been contained.

Mr. Thomas Waller then testified that on the morning of November 10, 1970, he discovered that a lawn mower and a drill motor with drill bits had been taken from his locked garage. Waller identified the lawn mower, the drill motor, and the drill bits among the property seized by Tannehill in the search.

With respect to the items found in his car by the police officers, defendant testified that he purchased them from a person who needed money. He denied knowing that the items were stolen, and testified that he had never seen Jahnsen or Waller and had never been to their residences.

Defendant admitted that with respect to these items of property he was charged with receiving stolen property and that he entered a plea of guilty to the charge. He stated that because of the plea the crime was determined to be a misdemeanor and that he entered a plea of guilty in order to avoid a conviction which possibly could result in a state prison sentence.

B. ...

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