People v. Johnson

• Citation: 104 Cal.App.3d 598,164 Cal.Rptr. 69
• Decision Date: 28 March 1980
• Docket Number: Cr. 19077
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd S. JOHNSON, Defendant and Appellant.

Page 69

164 Cal.Rptr. 69

104 Cal.App.3d 598

PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd S. JOHNSON, Defendant and Appellant.

Cr. 19077.

Court of Appeal, First District, Division 4, California.

March 28, 1980.

Quin Denvir, State Public Defender, Kay Kohler, Deputy Public Defender, San Francisco, for defendant and appellant.

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

CALDECOTT, Presiding Justice.

Appellant Floyd Steven Johnson was convicted, following a jury trial, of a violation of Penal Code section 496 (possession of stolen property) with a finding by the jury that he inflicted great bodily injury upon the person of Joyce Moseman, within the meaning of Penal Code section 12022.7, and violation of Penal Code sections 242-243 ¹ (battery with serious bodily injury).

On November 17, 1978, appellant was sentenced to state prison for five years and four months one year and four months for possession of stolen property; three years for infliction of great bodily injury; and one year for the prior felony conviction. Sentence on the battery conviction was stayed pursuant to section 654.

The appeal is from the judgment.

Joyce Moseman and Stephanie Shivers entered the Boston Disco and were seated at a table. They put their purses on the backs of their chairs. Moseman noticed appellant and another male standing at the bar. Appellant then sat down at a table directly behind Moseman's table and the other man asked Moseman to dance. When Moseman declined the invitation, the man, dressed in beige pants and dark sweater, ² left the disco through the door leading to the bowling alley. Moseman observed that appellant got up from the table and exited the same way. After they had gone, Moseman reached for a cigarette and realized that her purse was gone. She told Shivers, who had just returned from the bar, that their purses were missing. She also informed Harold Welch, the manager of the disco, about the theft of the purses, and that the two suspects went through the door to the bowling alley.

Welch accompanied Moseman outside into the causeway where the two men had gone. Welch looked into the closed bowling alley, but saw no one. Moseman and Welch then entered the men's restroom. On entering the place, Moseman saw her purse on the floor of one of the stalls. She could also see the legs of two men. Welch kicked open the door of the stall and found two men searching two purses. Welch then left the restroom to call the police. As Moseman followed him she was grabbed from behind by her hair and forced to the ground. The two men in the stall ran from the restroom. One was wearing a beige outfit, the other light-colored pants and a dark top.

Moseman rushed to the locked door leading to the Boston Disco and pounded on it asking to enter. She observed the two men go to the other end of the bowling alley to leave, but the doors were locked. One of them tried to break the glass with a chair. Just as the door to the disco was about to be opened, Moseman was hit with a fist, fell, and briefly lost consciousness. She testified the person who hit her was wearing a light-colored shirt. When she gained consciousness she called the police. Moseman was taken to Valley Medical Hospital. She sustained bruises on her arms and left leg and also a fractured jaw. The diagnosis in the medical records described the injuries as multiple contusions and fracture of the left jaw.

Shivers lost sight of Moseman for about 10 minutes. Then she heard someone knocking on the door to the disco. When she went to open the door she saw one of the men punching Moseman in the face. Shivers stated that the man who struck Moseman was appellant. Shivers kneeled to help her unconscious friend. "That's when I guess I tangled with Mr. Johnson and my head hit the wall." Shivers' next recollection was that she was taken to the hospital. Her purse, minus a few dollars, was returned to her before she left.

The rest of the prosecution's evidence may be stated as follows: after Welch returned to the disco, he asked his disc jockey to telephone the police and told Charles Gibson, his assistant manager, to run outside because there was trouble in the bowling alley. Finding no disturbance in the parking lot, Gibson returned to the building and entered the bowling alley, where he saw Welch, Moseman, Shivers, and two black men, one of whom was appellant. Gibson observed the two men attempt to break through the glass doors and then return to the entrance of the disco. Gibson testified that appellant's companion hit Moseman with his fist; shortly thereafter, appellant slapped Shivers with an open hand, causing her to fall upon the supine Moseman. ³ Gibson then telephoned the police from the front desk of the bowling alley and returned to the disco to summon help.

Appellant's defense was that he was an innocent bystander to Leroy Lewis' theft and attempted escape.

Leroy Lewis presented testimony which, although generally exculpating appellant, was to a certain degree, inconsistent with appellant's testimony. Lewis admitted taking the two purses from the back of the chairs and carrying them into the stall of the men's room. He testified that he entered the restroom before appellant, who did not come into the stall. ⁴ While Lewis was examining the contents of the purses, from which he took $4, others entered the restroom and accused him of taking the purses.

Lewis testified that he hit both women and that appellant tried to prevent the assault. ⁵ He acknowledged that he could not be prosecuted criminally for the offenses which he admitted because juvenile proceedings against him had been completed.

I The Evidence Is Sufficient To Support The Conviction Of Receiving Stolen Property

Appellant first contends that the evidence introduced at trial was insufficient to sustain the conviction for receiving stolen property. We disagree.

Since appellant challenges the sufficiency of the evidence supporting the judgment, initially we set out the basic principles governing the appellate review in such instance. As has been emphasized time and again, the appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.) If the circumstances reasonably justify the findings of the trier of fact, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of a judgment. (People v. Hillery (1965) 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382.) The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

Turning to the substantive issue before us, it is well established that the elements of receiving stolen property are: (1) that the particular property was stolen; (2) that the accused received, concealed or withheld it from the owner thereof; and (3) that the accused knew that the property was stolen. (People v. Vann (1974) 12 Cal.3d 220, 224, 115 Cal.Rptr. 352, 524 P.2d 824; People v. Martin (1973) 9 Cal.3d 687, 695, 108 Cal.Rptr. 809, 511 P.2d 1161; People v. Kunkin (1973) 9 Cal.3d 245, 249, 107 Cal.Rptr. 184, 507 P.2d 1392; People v. Osborne (1978) 77 Cal.App.3d 472, 475, 143 Cal.Rptr. 582; People v. Katz (1975) 47 Cal.App.3d 294, 299, 120 Cal.Rptr. 603.)

In the case at bench, appellant concedes that the property was stolen and also that he knew it was stolen. He insists, however, that the second element of the crime was lacking and that there is insufficient evidence to show that he possessed the stolen property. Appellant's argument is not unmeritorious.

While it has been stated that the mere presence near the stolen property and/or access thereto by itself is not sufficient to sustain a conviction for receiving stolen property and that in order to convict the defendant dominion and control must be shown (People v. Martin, supra, 9 Cal.3d at p. 696, 108 Cal.Rptr. 809, 511 P.2d 1161; People v. Myles (1975) 50 Cal.App.3d 423, 429, 123 Cal.Rptr. 348; People v. Zyduck (1969) 270 Cal.App.2d 334, 336, 75 Cal.Rptr. 616), it is well settled that the possession of the stolen item need not be exclusive and that possession may be established by both direct and circumstantial evidence and reasonable inferences drawn from such evidence. (People v. White (1969) 71 Cal.2d 80, 82-83, 75 Cal.Rptr. 208, 450 P.2d 600; People v. Prieto (1961) 191 Cal.App.2d 62, 71, 12 Cal.Rptr. 577, overruled on other grounds in People v. Butler (1966) 64 Cal.2d 842, 844-845, 52 Cal.Rptr. 4, 415 P.2d 819; People v. Nelson (1959) 171 Cal.App.2d 356, 361, 340 P.2d 718.)

In the case at bench, the evidence establishes that after taking the purses in question, both appellant and Lewis went to the men's room; that they occupied the same stall behind closed doors; and that when the door of the stall was kicked open, eyewitness Welch observed that both appellant and his cohort were bending over and going through the stolen items. This evidence and the reasonable inferences to be drawn therefrom, sustain the proposition that appellant had a larger role than being merely in the vicinity of, or having access to, the stolen property, and that he, in fact, was a joint possessor (at least for a short while) of such items with Lewis. (Cf. People v. White, supra; People v. Prieto, supra.) Needless to say that this evidence is clearly sufficient to...