People v. Goodman
| Decision Date | 31 March 1958 |
| Docket Number | 6080,Cr. 6079 |
| Citation | 159 Cal.App.2d 54,323 P.2d 536 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Morris Harris GOODMAN, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Claude Vibart Worrell, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow and John A. Vander Lans, Deputy Attys. Gen., for respondent.
Appeals in two cases, numbers 6079 and 6080. In number 6079 defendant was charged by information in Count I with grand theft 1 in that he took personal property of Maurice Bailey valued at more than $200, in Count II with attempted extortion 2 in that he attempted by wrongful use of force and fear to obtain $5,000 from Maurice Bailey by posing as a law enforcement officer and without legal justification accusing Bailey of a crime and threatening to arrest him unless $5,000 was given him, and in Count III with burglary 3 in that he entered the apartment occupied by Bailey with the intent to commit theft. It was alleged the offenses were committed on January 27, 1957. It was further alleged that on April 6, 1955 defendant was convicted in the superior court for the county of Los Angeles of violating section 337a of the Penal Code.
In number 6080 defendant in 1955 pleaded guilty to a violation of section 337a, proceedings were suspended, and he was granted probation for three years.
In number 6079 defendant admitted the prior conviction. The cause was tried before a jury. Defendant was found guilty on all counts, and all to Count III the jury found the offense to be burglary of the first degree. On conviction in the present action the order granting probation in the 1955 action for violation of section 337a was revoked and defendant was sentenced to state prison for that offense. In number 6079 judgment was pronounced and defendant sentenced to state prison, the sentences as to Counts I and II to run consecutively, the sentence as to Count III to run concurrently with the sentences as to Counts I and II, and the sentences as to Counts, I, II, and III to run consecutively to the sentence in number 6080. Defendant appealed from the judgments and orders denying a new trial in both actions.
The specifications of error in number 6079 are: 1. The evidence is insufficient to support the verdicts. 2. The court erred in admitting a purse and its contents in evidence. 3. The court erred in admitting evidence of a telephone conversation. 4. The court erred in refusing to instruct the jury with respect to the burglary count.
On January 27, 1957 Maurice Bailey, a furniture designer, lived at 968 North La Cienega, Los Angeles. Arminio Lozzi, who worked for Bailey, was in Bailey's home working. Bailey used the lower part of the building as an exhibition place for his work and lived in the upper part. He was working on a model of an office building. About 3 o'clock in the afternoon Ev and Marilyn Jackson, husband and wife, arrived at the house. Lloyd Crane arrived shortly thereafter. Bailey had met the Jacksons through Crane about six weeks earlier.
Shortly after the Jacksons arrived Ev made a phone call, then left for about 2 1/2 hours, returning about 5:30 or 6 p. m. About 7:30 p. m. Bailey was in the hallway when he first noticed that three unknown and uninvited men, one of whom was defendant, were in the house. One of the three unidentified men had a badge in his hand and a gun in a holster on his hip. The third man had a pair of handcuffs in his hand. The man with the badge showed it to Crane and stated he was a policeman. The badge had the word 'Patrolman' on it. Defendant told Bailey he was the sergeant in charge and he was there on a marijuana 'rap'. In the meantime defendant told the other two men to 'shake' the apartment down. Lozzi and Crane were ordered to empty the contents of their wallets, which they did. One of the men told Bailey, Lozzi, and Crane to go into the bedroom. When they entered the bedroom Marilyn was lying upon the bed nude. Bailey, Lozzi, and Crane were each forced to be photographed with Marilyn. Crane at first refused to sit upon the bed with Marilyn and was struck on the jaw by defendant.
After Bailey had been photographed with Marilyn defendant told him to go to the kitchen, that he had a very young girl in there in a very compromising position, and 'it was going to really be rough,' if he took Bailey in and booked him it would take $50,000 bail to get him out, and it would cost Bailey at least $5,000. Bailey said he did not have that amount of money. Defendant said 'How much can you raise tonight?' Bailey said he could not raise anything, that possibly in the morning he could raise part of it. Defendant asked Bailey if he had a checking account; Bailey said he had; defendant asked where the checks were; Bailey told him they were downstairs in the studio. Defendant told Bailey he would have to clear the matter through his superiors; he would have to split, so a small amount would not do any good because he would not get all of it. Defendant and Bailey went downstairs where defendant told him to write five checks for $1,000 each payable to cash. Bailey wrote the checks. He did not have that much money in his checking account. He told defendant he possibly had $700 to $900 in the account and that the checks would be worthless. Defendant asked Bailey if he could raise some money the next day to cover the checks. Bailey said he probably could get part of it. Defendant told him he would give him until 11 o'clock the next morning to raise the money and make the checks good. Defendant told Bailey the two men upstairs were not to be told of the transaction. Bailey handed defendant the five checks and asked him what his name was. Defendant said, 'When I call you, I'll--it will be George.' Bailey gave defendant the number of his private, unlisted telephone.
Defendant and Bailey went back upstairs. Defendant said to the two unidentified men, One of them said, 'Well, I'm still looking,' to which defendant replied, 'Never mind, come on, we have got enough.' Defendant, the two unidentified men, and Ev and Marilyn Jackson left the place together. At defendant's direction one of the men took Bailey's motion picture camera, lens, case, and some film, all of a value in excess of $200, with him.
The next day Bailey contacted the police. He returned to his apartment at 5 p. m. accompanied by two police officers. Shortly after his return his private phone rang. He picked up the receiver, as did one of the officers on an extension. Defendant, who was calling, said, 'This is George,' and asked Bailey where he was at 11 o'clock that morning. Bailey said he had been out all day trying to raise the money; he had raised $3,500; and asked if defendant had his camera. Defendant said when Bailey raised the difference between 3,500 [159 Cal.App.2d 59] and 5,000 he could get the camera, said he would call back, and hung up. Some time later defendant called Bailey and said, 'This is George again.' The officer was on the extension. Defendant told Bailey to meet him in five minutes, to walk up to a bowling alley a block away, to walk back to the rear to the telephone booths, to walk into the rear booth, wait until he arrived, and bring the money with him. Bailey went to the bowling alley. An officer had preceded him and had placed defendant under arrest.
One of the officers took a key to room 9 in a motel from defendant's pocket. A few days before January 27 defendant had gone to the motel with a woman, had registered as John and Mary Wayne, and had paid the rent for room 9. Ev and Marilyn Jackson occupied room 9 on the 27th.
The argument with respect to the contention that the evidence is insufficient to support the verdicts is that the testimony of Bailey and Crane is inherently improbable, confusing, and inconsistent; that 'Bailey's hands are not clean since 'he admitted prior contributions to 'Marilyn's' delinquency'; Ev and Marilyn were not produced as witnesses; neither the check book not the check stubs were produced; no stolen property was introduced in evidence; and no unlawful entry was proved. These were all matters for the consideration of the jury, not this court. The test on review is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt has been established beyond a reasonable doubt. People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Cahan, 141 Cal.App.2d 891, 897, 297 P.2d 715. Manifestly there was substantial evidence to support the conclusions of the jury with respect to the three offenses charged. People v. Case, 49 Cal.2d 24, 313 P.2d 840; People v. Jones, 25 Cal.App.2d 517, 519-522, 77 P.2d 897; People v. De Nava, 119 Cal.App.2d 82, 83-84, 258 P.2d 1073.
It is argued the entry was before sundown and consequently the burglary was of the second, and not of the first, degree. The point is without merit. The entry was on January 27. Bailey testified it was about 7:30 p. m. when the three men entered the apartment and that it was dark. Further, there was evidence that one of defendant's associates was armed and that defendant struck Crane on the jaw. Every burglary committed in the daytime or nighttime by a person armed with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree. Pen.Code, § 460. The evidence supports the finding that the burglary was of the first degree.
Defendant asserts the three offenses charged constitute a single individual act and that the conviction of one offense only may be sustained. Section 654 of the Penal Code provides:
'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either...
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