People v. Lancellotti, Cr. 1097

• Decision Date: 21 January 1957
• Docket Number: Cr. 1097
• Citation: 147 Cal.App.2d 723,305 P.2d 926
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony Thomas LANCELLOTTI, Defendant and Appellant.

Page 926

305 P.2d 926

147 Cal.App.2d 723

The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony Thomas LANCELLOTTI, Defendant and Appellant.

Cr. 1097.

District Court of Appeal, Fourth District, California.

Jan. 21, 1957.

Hearing Denied March 22, 1957.

Edward L. Bracklow, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., William E. James and Bonnie Lee Hansen, Deputy Attys. Gen., for respondent.

GRIFFIN, Justice.

Defendant and appellant was originally charged in a criminal complaint with grand theft in violation of Penal Code, §§ 484 and 487, in that on March 16, 1956, he feloniously took personal property of Jordan Marsh Company, consisting of a pastel mink stole valued at $235. He was arraigned on the charge in the Municipal Court. Evidence was received and the committing magistrate held the defendant to answer on the charge of receiving stolen property as defined by section 496 of the Penal Code.

The information was filed in the Superior Court on May 9, 1956, charging defendant in count one with grand theft, as originally charged in the complaint. In count two he was charged with feloniously receiving the same property for which he was held to answer. In a third count it was charged that on March 16, 1956, he violated section 496 of the Penal Code by feloniously receiving stolen property, to wit, one dark grey plaid suit and one blue suit, the personal property of Walker Scott Corporation.

A motion was made before a judge other than this trial judge to dismiss the information and particularly count three, on the basis that there was no evidence before the committing magistrate to substantiate the charges. The motion was denied. Subsequently, a writ of prohibition under section 999a of the Penal Code alleging defendant was committed without reasonable or probable cause, was denied by this court on June 6, 1956, and this order became final. Just before the trial, counsel for defendant again raised the same question by a similar motion, and after considerable discussion, it was denied. On this appeal defendant again questions this ruling as well as the former ruling. After receipt of the prosecution's evidence defendant moved for an advised verdict or for dismissal of each count. The motion was denied.

A trial by jury resulted in a conviction on the first and third counts. Subsequently, the trial court dismissed the second count. Defendant was sentenced to state's prison, sentences to run concurrently.

On March 16, 1956, the Gardena police officers received a telephone call from one of their informers that two men, one resembling this defendant, were attempting to sell some clothing at a certain club in that city. They went there and saw defendant and his partner, Pastore. One Thompson, manager of the club, had purchased from defendant two suits of clothes and two pairs of slacks for $80 in cash. Defendant denied such a sale and he was searched. A set of car keys was found. Defendant stated he had no car since he left it at home and the keys were then returned to him. Shortly thereafter, the officers found these same keys, partially exposed but hidden in a sandfilled ash tray. Search was made on an adjoining lot and a Buick car was found. The keys fitted it. Defendant was taken to the car and several boxes of clothing, a hanger labeled 'Dutch Smith' and a mink stole were found in the trunk. After questioning, defendant changed his story and said he had acquired these articles in a trade with another unknown peddler near Los Angeles. He later changed the place and indicated it was Long Beach. The trousers and slacks purchased by the manager were found in a club locker in a separate bundle. Defendant then admitted to the officers he had brought these articles into the club and had been in San Diego the week before, but later, when he was told of the thefts in San Diego that particular week he changed his story and claimed it was the week before that he was in San Diego.

The manager of the Jordan Marsh Company sufficiently identified the mink stole marked No. 515 as being one of two found missing from his store in La Jolla on March 16, 1956. He also identified two pairs of new uncuffed pants which bore the label 'Macgregor' in them, a brand carried by his store, and also the tan slacks with the label 'Kentkraft', which articles were exclusively handled by this store in that area. (The next closest store was Eugene, Oregon.) He testified that his store carried trousers of the description of those found in defendant's car; that they carried the label 'Jordan Marsh' written on them and that at that time he could not tell whether these particular slacks and pants were stolen or were sold from his store, but it was unlikely that they were sold because it was an unusual thing to sell a pair of uncuffed pants.

Another witness, Smith, testified he was in business in La Jolla under the name of 'Dutch Smith'. He testified that a certain camel's hair jacket, size 40, found in defendant's car on a hanger labeled 'Dutch Smith, La Jolla, California' was one which he had received in a shipment to his store on March 15, and which he found to be missing.

A buyer for Walker Scott Company testified that on March 19 he went to Gardena and identified certain items found there, including a new grey pin-striped suit with uncuffed pants, carrying the Walker Scott label on it; that at that time his store carried suits of that make, model, style and size; that it is a rare occasion when uncuffed pants like those are sold in that condition. Another blue suit was similarly identified. He testified he did not know of his own knowledge that these exact pants were stolen from his store but they carried the store's label and it would be an unusual occasion to sell uncuffed pants from his store.

The prosecution offered testimony of a store detective from Bullock's indicating that on August 11, 1953, defendant and one other person were caught shoplifting and carrying a large paper bag and were removing a coat from that store. The court properly refused the proffered evidence. (8 Cal.Jur. p. 58, sec. 167.)

Defendant testified he was a peddler who purchased merchandise at wholesale and sold it at retail from his car; that although he was in San Diego one or two weeks before March 16th, he did not know where the Jordan Marsh, Walker Scott, or Dutch Smith stores were located, and that he had not been inside those stores; that he acquired all these articles described from an unknown peddler by trade in Gardena; that each told the other he had acquired the respective articles through a mistake in the order from the house with which they did business and did not want to take them back. The defendant said this was just sales talk, and if he could steal from his employer 'so can I', because he had a license to steal because he had a peddler's license; and that he did not believe the 'stuff' was stolen although he did see the Walker Scott store label on some of the articles.

On this appeal from the judgment of conviction he first contends that the trial court erred in denying his motion to dismiss counts one and three of the information because the evidence taken at the preliminary examination did not show reasonable or probable cause to justify the district attorney filing an information on the offenses charged; that since defendant was originally charged with grand theft of the mink stole and he was held to answer on the charge of receiving stolen property, the district attorney was unauthorized to again charge grand theft, and that the evidence taken at the preliminary examination did not support the charge of receiving stolen property set forth in the third count since the two suits alleged therein were not received in evidence at the preliminary examination but were returned to the district attorney for disposition after being marked only for identification, and that the several charges were not shown to be so connected in their commission as to be chargeable in separate counts in one information

We see no merit to this argument. The committing magistrate heard the testimony of the witnesses pertaining to the charge in the third count and they properly identified the exhibits which were marked for identification, although they were not received in evidence. That testimony was not stricken and remained in the transcript. The district attorney was authorized to include this offense in the information. Penal Code, § 739. The charge of grand theft was not expressly dismissed as was done in Parks v. Superior Court, 38 Cal.2d 609, 241 P.2d 521, upon which case defendant relies. The evidence was sufficient to allow the district attorney to not only charge defendant with receiving stolen property, but, in the alternative, to charge him with grand theft of the same property. People v. Bird, 212 Cal. 632, 300 P. 23; Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250. Defendant was found in possession of all of the property charged in the information in the same place and it was adequately shown that all of the charges were sufficiently related or connected with the transaction which was the basis for the committing order and the charges alleged and would authorize their inclusion in one information. Penal Code, § 739; Parks v. Superior Court, supra; People v. Bird, 212 Cal. 632, 300 P. 23, and cases cited. Irrespective of this conclusion, defendant presented the question of the sufficiency of the evidence to show probable cause for the commission of the crimes charged to the Superior Court on a motion to dismiss the information. It was fully considered and denied. It was again presented on a writ of prohibition to this court under Section 999a of the Penal Code and denied. This judgment became final and the question should not again be made subject to review on an appeal from the order denying the new trial or from the judgment of conviction. People v. Dutton, 27 Cal.App.2d 364, 80 P.2d 1003; ...