People v. Gant, Cr. 5564

CourtCalifornia Court of Appeals
Citation57 Cal.Rptr. 413
Decision Date14 March 1967
Docket NumberCr. 5564
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Wesley Roy GANT and Louis A. Romero, Defendants and Appellants.

Hearing Ordered and Transferred to this Court on its own Motion and Retransferred to Court of Appeal May 10, 1967.

Richard M. Bryan, Elke, Farella, Braun & Martel, San Francisco (under appointment of the Court of Appeal), for appellant Wesley Roy Gant.

Lindsay M. Mickles, Mickles & Betzenderfer, San Francisco (under appointment of the Court of Appeal), for appellant Louis Romero.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, John T. Murphy, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Associate Justice. *

In a Grand Jury indictment, defendants Gant and Romero, together with Patrick M. Buckman, Salvatore S. Polani and Winston Major, were charged with conspiracy (§ 182, Pen.Code) to commit burglary and also with burglary (§ 459, Pen.Code). The indictment charged that all were armed with deadly weapons during the commission of the alleged crimes. 1

A jury acquitted Buckman on both counts; found Polani guilty on both counts and that he was armed with a deadly weapon; found Gant and Major guilty on both counts and that they were armed. Romero was found not guilty of Conspiracy but guilty of burglary and being armed. All defendants moved for new trials, which motions were denied. Defendants Gant and Romero appeal from the judgment entered on the jury verdicts. 2

A. Alleged Error.

1. In denial of defendants' motions for severance.

2. In refusal of severance of the burglary and conspiracy charges.

3. Instruction on circumstantial evidence.

4. Admission of evidence of Gant's character.

B. Was the evidence taken from Romero's car the result of an illegal search and seizure?
C. Was Romero's acquittal of the conspiracy charge factually inconsistent with his conviction of the burglary charge?

In early 1965, Robert Worthington, a Marin County contractor who had been employed to perform certain construction work at Sally Stanford's restaurant in Sausalito, 'The Valhalla,' met with Polani, a San Francisco police officer whom he had known for several years. Polani showed Worthington a stolen diamond watch bracelet which he said was worth $15,000, and asked him to ask Miss Stanford if she would pay $1,000 for it. While the two men were in the Valhalla, Polani noticed a safe in the liquor room and told Worthington he had some men who could get into it in 30 seconds. Worthington replied that Miss Stanford did not keep much in the safe.

Following this meeting, Worthington informed Mr. Midyett, the chief criminal investigator for the Marin County District Attorney's Office, of Polani's remarks. Worthington showed the bracelet to Miss Stanford, who declined to purchase it. He then returned it to Polani.

At a later meeting, Polani told Worthington that he knew two safecrackers who could 'take' Sally Stanford's residence. 3 Several meetings between Polani and Worthington followed concerning the robbing of the residence by these men, one of whom was named 'Bill' (presumably defendant Major).

In the meantime, Worthington had conferred with Midyett and two San Francisco police officers and had agreed to cooperate with Polani and attempt to learn who his confederates were.

Worthington told Polani that the residence would be vacant on April 6. Polani stated that another policeman (presumably Buckman) would work with Polani the night of the burglary and would drive in a car behind the safe men to be sure that they did not cheat on the count. It was agreed that Worthington and two subcontractors would enter the building on the night selected, ostensibly to estimate certain construction work. Before leaving, Worthington would jam the door lock with cotton and Scotch tape. When Polani's men entered, they were to remove the cotton and tape. Polani and his partner would be waiting outside.

On the evening of April 6, the residence was under police surveillance both inside and outside. About 7:30 p. m. Worthington and another man arrived at the residence, having previously obtained the key from Miss Stanford. On leaving, Worthington jammed the door lock with Scotch tape and cotton.

Police officers observed defendant Major walk past the residence to the corner and then disappear from view. Shortly thereafter, a car driven by Buckman passed the residence, returned and parked nearby. Another car then drove past two or three times and stopped. Major entered and it drove off. Shortly thereafter Major, Gant and Romero walked toward the house, Major and Romero carrying grips. 4

Officers inside the residence heard a telephone ring for a long duration. They did not answer. After the telephone stopped ringing the front door was opened and two men carrying grips entered. One of the men walked toward the stairs and the other, Romero, put down his grip and walked toward the front door. At this point an officer called to the man carrying the grip upstairs, 'Halt, we are the Police.' Romero started running for the front door and was apprehended. Gant ran out the front door and was caught by the police in front of the house. Gant was wearing cloth gloves.

A .38 caliber revolver found lying on the floor where Romero had been standing was identified as one which had been given to Major the day before. During a search of Romero, one of the officers felt bullets in his pocket. Romero was taken upstairs and searched. He was wearing one black leather glove. In his pocket were found six .38 caliber bullets and a small amount of cotton

In the meantime, Polani and Buckman were apprehended in a car parked at the corner.

At the Stanford residence, after having first been advised of his constitutional rights, Gant was questioned. He stated that he had obtained the tools in the grip at Sears Roebuck at 4:00 p. m., was picked up by Romero in a Cadillac at 6:00 p. m., and had parked a block from the Stanford home. An electric drill had been brought in case they ran into trouble on the safe. Major had arrived separately and had met him at the corner. Gant stated that he did not know the identity of the two men who had been arrested outside. He said the job was Major's and he had just been called in that day. Gant had two drills in his pocket. The grips which Major and Romero had carried contained safecracking tools.

At the Hall of Justice, Romero was questioned after being advised of his constitutional rights. He stated that he came to the residence in a cadillac borrowed from a friend named Haines and parked the car. He refused to say anything further. Three vehicles parked in the vicinity of the residence were towed to the Hall of Justice and impounded. Subsequently the trunk of Romero's car was searched. It contained a box of cartridges of the same brand, caliber and size as those found in Romero's pocket and in the gun found at the scene.

Buckman denied all knowledge of the burglary and stated that on the day of the burglary, he and Polani, who was his partner in a private detective agency, were working on a divorce case and a case involving guarding an individual who had been released on bail.

Polani testified that the burglary was Worthington's idea and that Polani pretended to cooperate with him for the sole purpose of apprehending him in the commission of the crime.

Major's defense was that he was entrapped by Polani and Worthington; that it was not until April 6 that he agreed to participate in the burglary and that he had done so while under the influence of alcohol and as a result of Polani's repeated urgings. After he had agreed to participate, he contacted Gant, who agreed to participate. Gant in turn persuaded Romero to drive him but assured Major that Romero had not been told any of the details of the burglary and that there was no danger of his saying anything.

A. Alleged Error.

1. Severance.

Both defendants moved for a severance of the trials, which motions were denied. Both defendants claim that the joint trial was highly prejudicial to them primarily because of the conversations between Polani and Worthington in which Polani was shown to be a vicious and lawless individual, and Buckman and the two safecrackers were described by Polani as being hardened and experienced criminals. Both defendants contended that in separate trials most of this evidence would have been inadmissible.

Section 1098 of the Penal Code provides in pertinent party that 'When two or more defendants are jointly charged with any public offense, * * * they must be tried jointly, unless the court order separate trials.' It is settled that the trial court has full discretion in determining a motion for severance and that an appellate court will not ordinarily disturb that discretion and will look only at the facts existing at the time of the motion and will not consider events that occurred afterwards. (People v. Clark (1965) 62 Cal.2d 870, 883, 44 Cal.Rptr. 784, 402 P.2d 856; People v. Eudy (1983) 12 Cal.2d 41, 82 P.2d 359.)

Defendants rely on People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, which held in effect that a severance must be granted on request where the extrajudicial statement of one joint defendant which implicates the other joint defendant or defendants is to be used in the trial, unless the portions of the statement implicating the other defendants can be eliminated. However, it is clear from a reading of that case, in which it was held that the case was dealing with a rule of evidence and not due process (p. 530, 47 Cal.Rptr. 353, 407 P.2d 265), that its rule is intended to have a prospective application only. It has been so held in People v. Williams (1965) 239 Cal.App.2d 42, 45-46, 48 Cal.Rptr. 421, People v. Haynes (1966) 244 A.C.A. 660, 665-666, 53 Cal.Rptr. 530, and People v. Culp (1966) 241 Cal.App.2d 352, 356, 50 Cal.Rptr. 471. The...

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