People v. De Leon

• Decision Date: 16 August 1965
• Docket Number: Cr. 10235
• Citation: 46 Cal.Rptr. 241,236 Cal.App.2d 530
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Raul DE LEON, Defendant and Appellant.

Page 241

46 Cal.Rptr. 241

236 Cal.App.2d 530

The PEOPLE of the State of California, Plaintiff and Respondent, v. Raul DE LEON, Defendant and Appellant.

Cr. 10235.

District Court of Appeal, Second District, Division 1, California.

Aug. 16, 1965.

Charles A. Kent, Santa Barbara, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William L. Zessar, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was charged with three counts of burglary--on December 10, 18 and 26, 1963--and the following prior felony convictions: burglary, second degree (1950), burglary, first degree (1944), forgery of government check (1942), and possession of marijuana (1941). He admitted all four felony convictions; it was stipulated that if defendant was convicted of any burglary charged in the information it be fixed at second degree. A jury returned its verdict of guilty on Count I and not guilty on Counts II and III. He appeals from the judgment, order denying motion for new trial and order denying motion for new trial upon reconsideration. The purported appeals from the two orders are dismissed. (People v. Bernhardt, 222 Cal.App.2d 567, 571, 35 Cal.Rptr. 401.)

The burglaries charged in Counts II and III, of which defendant was acquitted, allegedly were committed with an accomplice, Joe Villegas. No accomplice was involved in the Pandolfi burglary (Count I) of which defendant was convicted. The following facts refer only to Count I. Twenty-six items of the value of approximately $3,500 were stolen from the home of Everett Pandolfi on December 10, 1963; they included a small portable radio, a man's electric razor and all of his and his wife's jewelry, among which were a gold angel pin (Exh. 1), a string of pearls (Exh. 2), a pair of gold earrings (Exh. 3), and a narrow baguette-type diamond platinum watch with a diamond bracelet. Mr. and Mrs. Pandolfi had left their home at 8 a. m. to work at their jewelry store, and arrived home between 8 and 9 p. m.; during the day entry into the house had been made through a den window which had been forced open. Defendant had worked for the Pandolfis as a gardener with another man for one week earlier in the year. On December 24 defendant gave the gold angel pin (Exh. 1) to a friend, Jennie Luera; twelve days after the burglary (December 22) defendant gave Mary Miyorga a string of pearls (Exh. 2) and a pair of gold earrings (Exh. 3); and sometime in December he showed Amelia Sarinana a narrow watch with diamonds which he said he intended to give to his daughter. The watch was almost identical to Exhibit 7. Defendant neither testified nor offered a defense.

Appellant argues that there is nothing in the record to connect him with the burglary other than the possession of the stolen property. While mere possession of property stolen in a burglary is not of itself sufficient to sustain the possessor's conviction of that burglary, possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition, slight corroboration in the form of conduct of the defendant tending to show his guilt; 'and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary. People v. Lang, 142 Cal. 482, 484-485, 76 P. 232; People v. Taylor, supra, 4 Cal.App.2d 214, 217, 40 P.2d 870.' (People v. Citrino, 46 Cal.2d 284, 288-289, 294 P.2d 32, 35; People v. McFarland, 58 Cal.2d 748, 754, 26 Cal.Rptr. 473, 376 P.2d 449.) Appellant's argument that this rule forces him to testify is without merit. While the rule requires that defendant either 'show' that his possession of recently stolen property was honestly obtained, or have his failure to do so be considered a strong circumstance tending to show his guilt, it does not compel him to take the stand to explain his possession. He may 'show' that possession was honestly acquired by producing as a witness the person from whom he received the stolen property, if such a person exists, or by any other evidence that may explain it. (See People v. Citrino, 46 Cal.2d 284, 289, 294 P.2d 32.) Here defendant put on no defense--he offered no evidence to show how or under what circumstances he came into possession of the Pandolfi jewelry, nor did he testify. This is analogous to the effect of two federal statutes held to be constitutional in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658. Therein defendant was convicted of carrying on an illegal distillery business; he did not testify. An instruction informed the jury of the two statutory provisions which authorized it to infer guilt of the substantive offenses from the fact of a defendant's unexplained presence at the site of an illegal still. The Supreme Court held that the statutory inference does not violate due process and is constitutionally permissible. The purpose of the provisions is to meet the practical impossibility of proving actual participation in such illegal activity except by inference drawn from the accused's presence when the illegal acts were committed.

However, there are other circumstances tending to show defendant's guilt which are sufficient corroboration of his possession of the stolen property to support his conviction of the burglary of the Pandolfi home. Defendant was in possession of the property twelve days after the burglary; he had not one, but four items. He not only had lived in the same town as the Pandolfis, but had actually worked for them as a gardener earlier in the year and as such was in a position to know that they were not at home during the day. After the burglary defendant left the state and went to Texas where he was finally apprehended.

After testifying that defendant's statements were freely and voluntarily given, Officer Thompson read a written statement of a conversation had with defendant at the jail in Los Angeles after his arrest in and extradition from Texas. Appellant now contends that the 'admission by silence' contained in the statement was received in evidence over his objection that he did not have a fair opportunity to reply. While it is true that defense counsel made several objections to specific portions of the statement read by Officer Thompson, the record fails to bear out appellant's claim that he interposed any such objection to the 'admission by silence.' He objected to the words 'in the joint' with reference to his statement that 'he learned not to admit anything'; the three words were deleted. He then objected to other specific portions of the statement on the ground that they implied other unlawful acts; they were delated. Finally he objected to 'the last statement on the next page, the last five words,' on the ground that defendant had 'no fair and reasonable chance to reply'; the trial judge sustained the objection by declaring 'they are out,' and they too were deleted. Defendant interposed no objection that he was not given a fair opportunity to reply to any other part of the statement; most certainly, he made no such objection to Officer Thompson's testimony that defendant remained silent after being told that Villegas (alleged accomplice in the burglaries alleged in Counts II and III) and the two ladies would testify against him. Whether defendant was given a fair and reasonable chance to reply is a matter for the trial court's determination. When an accused stands mute in the face of an accusatory statement it is for the trial court to determine in the first instance whether the accusation has been made under circumstances calling for a reply, whether the accused understood the statement and whether his conduct or response was such as to give rise to an inference of acquiescence or guilt consciousness. The it is for the jury to decide on any statement properly admitted, whether the accused did reply to it, and whether if he did not do so, or his reply was evasive or equivocal, it showed criminal intent or a consciousness of guilt or acquescence. (People v. Simmons, 28 Cal.2d 699, 712-713, 172 P.2d 18; People v. Millum, 42 Cal.2d 524, 528, 267 P.2d 1039.) The objections made in the court below were pinpointed to specific parts of the statement; they are not now available to other parts of the statement not objected to at the trial. (People v. Romano, 197 Cal.App.2d 622, 627, 17 Cal.Rptr. 399.) Having made no objection in the trial court defendant cannot now raise the same for the first time on appeal. (People v. Pickens, 190 Cal.App.2d 138, 148, 11 Cal.Rptr. 795; People v. Romano, 197 Cal.App.2d 622, 627, 17 Cal.Rptr. 399; People v. Millum, 42 Cal.2d 524, 528, 267 P.2d 1039.)

Appellant argues that the 'admission by silence' was improperly admitted in evidence because he was not advised of his right to counsel and right to remain silent before the officers talked to him. The entire statement read by Officer Thompson ¹ relates primarily to Counts II and III which involved Villegas and of which defendant was acquitted. Appellant therefore centers his attack on the following to which he refers as an 'admission by silence': 'I told him we knew that Villegas would testify against him, and that the two ladies would testify that he gave them the jewelry.

'De Leon did not answer. I told him that we knew that he had pulled a lot of burglaries and asked him to clear up all those he pulled.

'De Leon said that he would tell all about them after court. He said that it looked like they had a good case against him, but he learned not to admit anything.'

There is considerable doubt that defendant's silence constitutes an admission--admission of what?--at most, that Villegas and the two ladies would testify against him. Also it appears that in remaining silent defendant may have been asserting his privilege against self-incrimination. In response to the officer's statement that they knew he had 'pulled a lot of...