People v. Martin

• Decision Date: 30 July 1969
• Docket Number: Cr. 669
• Citation: 275 Cal.App.2d 334,79 Cal.Rptr. 769
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Mack MARTIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 769

79 Cal.Rptr. 769

275 Cal.App.2d 334

PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Mack MARTIN, Defendant and Appellant.

Cr. 669

Court of Appeal, Fifth District, California.

July 30, 1969.

Rehearing Denied Aug. 28, 1969.

Hearing Denied Sept. 24, 1969.

[275 Cal.App.2d 335] H. W. Bailey, Fresno, under appointment by Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Robert A. Fowler, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

GARGANO, Justice.

Appellant appeals from the judgment of conviction entered on the jury's verdict finding him guilty of second degree burglary in violation of Penal Code, section 459. He presents three main contentions for reversal: that there was insufficient evidence to justify the jury's verdict, that it is inherently improbable that he committed the burglary, and that during the trial errors of law occurred which resulted in a miscarriage of justice.

The facts upon which this appeal is predicated are essentially these: On July 7, 1968, at approximately 10:25 p.m., the police dispatcher of the City of Fresno received a report that a burglary was in progress in a medical building located in the vicinity of North Fresno Street. A patrol car was dispatched immediately, and a few minutes later several policemen arrived at the scene. They discovered that a window in Dr. Robert Lusk's office had been smashed, and a ball peen hammer was found lying close by in the shrubbery.

A short time later one of the officers who was checking outside heard someone crashing through the bushes at the rear of the building. Then he saw two men running from the back of the building. The officer ordered the men to halt, and when they failed to heed his command gave pursuit. One of the subjects, appellant, slipped and fell; the second subject stopped to help appellant get up and then took off running. However, appellant slipped again and was apprehended. The other subject eluded arrest.

An examination of the doctor's office disclosed that the rear door to the office was unlocked. Microfilm and pills were scattered about the floor in the interior of the office, and a drug cabinet was found open. A pair of gloves and a smoked cigarette were also found on the floor. Later, Dr. Lusk stated that he locked the door when he left earlier during the day and that the gloves and smoked cigarette were unfamiliar.

At the trial appellant denied burglarizing Dr. Lusk's office. He testified that he was in the vicinity of the medical building to visit a woman named Evelyn Blevins who lived in a nearby apartment, and as he walked down the driveway of the medical complex, he saw a man suddenly run from one of the offices and heard someone shout, 'There he goes.' He said that he also ran but fell when he reached the street and that the other man did not stop to assist him when he slipped but, rather, paused for a car or for some other reason.

Turning first to the alleged errors, the record indicates that after appellant admitted that he had been convicted of a felony involving possession of narcotics in 1962, the prosecutor forced appellant to also admit that the narcotics were demerol, morphine sulfate tablets and opium and belladonna suppositories. Then the following transpired:

'MR. PITTS: * * *

Isn't it a fact, Mr. Martin, at that time in 1962 you were addicted to the use of narcotic drugs?

A No, sir, that is not a fact.

Q Did you have possession of these drugs, because you were selling them, you were a peddler?

A No, sir, I was using these drugs, but I wasn't addicted to them.

Q Now, isn't it a fact that you obtained possession of these drugs that you were found with on February 7, 1962, by burglarizing the Village Drug Company on the night of February 5?

A No, that's definitely not true.

Q Isn't it a fact these bottles, these drugs that were found in your possession matched the serial numbers of the serial numbers of the drugs in the Village Drug Company?

A I don't know. I don't know where they came from.

Q Isn't it a fact you had a cut on your leg that had been recently sutured when you were arrested on February 7, 1962?

MR. KAZATO: Again, your Honor, the fact if the defendant had possession of these bottles doesn't mean he burglarized this Village Drug Store.

THE COURT: Well, Counsel, I'll disallow this line until you have connected the cross-examination on the problem at hand, the case that happened.'

Thus, while appellant concedes that it was proper for the prosecutor to ask him whether he had been convicted of a felony and, if so, the nature of the felony, he argues that the prosecutor was not entitled to ask for the details. Appellant also argues that the prosecutor's questions concerning the alleged burglary were irrelevant and highly prejudicial.

We conclude that it was proper for the prosecutor to show that appellant's 1962 narcotics conviction involved possession of demerol, morphine sulfate tablets, opium and belladonna. Appellant was accused of burglarizing a doctor's office, and the fact that he was previously convicted of possession of dangerous drugs commonly found in a doctor's office was relevant to prove that he was familiar with, and possibly even addicted to, the use of such drugs. This in turn was relevant to establish appellant's motive for breaking into Dr. Lusk's office, and hence to prove his intent to steal, an essential element to the crime for which he was charged in the information. And, since the court thoroughly and accurately instucted the jury on the limited purpose for which the jury could consider appellant's narcotics conviction, no error was committed in this respect. It is...