People v. Massie

• Decision Date: 04 May 1966
• Docket Number: Cr. 9967
• Citation: 241 Cal.App.2d 812,51 Cal.Rptr. 18
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cecil MASSIE, Defendant and Appellant.

Page 18

51 Cal.Rptr. 18

241 Cal.App.2d 812

The PEOPLE, Plaintiff and Respondent, v. Cecil MASSIE, Defendant and Appellant.

Cr. 9967.

District Court of Appeal, Second District,

Division 1, California.

May 4, 1966.

Hearing Denied July 20, 1966.

Eugene V. McPherson, Canoga Park, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

WOOD, Presiding Justice.

In an amended information the defendant was accused of burglary in that he willfully entered a vehicle, to wit, a semitrailer used in conjunction with a motor vehicle, to wit, a motor truck and semitrailer combination, the property of John M. Collier, the doors of said vehicle being locked, and with the intent then and there to commit theft.

In a jury trial, defendant was found guilty of burglary in the first degree. Probation was denied, and he was sentenced to imprisonment in the state prison. He appeals from the judgment.

The judgment was affirmed by this court. (People v. Massie, Cal.App., 44 Cal.Rptr. 297.) The Dorado-case rule was not raised by appellant prior to the time that opinion was filed. The Supreme Court granted a hearing and retransferred the case to the court for further consideration in the light of People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97; People v. North, 233 Cal.App.2d 884, 44 Cal.Rptr. 123; and People v. Andrews, 234 Cal.App.2d 69, 44 Cal.Rptr. 94. (These cases pertain to the Dorado-case rule.)

Appellant contends (as shown by his briefs on the original hearing) that the court did not instruct the jury properly; that the court erred in allowing the information to be amended; that the amended information does not allege an offense; and that the evidence was not sufficient to support the judgment. He contends further (as shown by his petitions for rehearing and for hearing) that the rule in the Dorado case was applicable herein,--that the officers' conversations with the defendant were not admissible in evidence, because the defendant had not been advised of his right to counsel or of his right to remain silent.

On December 3, 1963, about 10 p.m., Mr. Collier, a truck driver in the employ of the Thrifty Drug Company, drove a truck-tractor, to which were attached two 22-foot semitrailers, containing drug store merchandise, to a place at the rear of a Thrifty Drug Store in Compton and parked the vehicle there. He had driven the vehicle from the Thrifty Drug Company's warehouse in Los Angeles to that store for the purpose of delivering some of the merchandise there.

The first trailer (the one next to the tractor) had a double-door at the rear end and a single door on each side. Each of the doors on this trailer was sealed by a metal clip, which is a piece or strip of pliable metal about six inches long, and one-fourth inch wide, which 'goes around the hasp over the handle of the door'--and one end of the strip is placed through a clip at the other end of the strip, and then the clip locks itself. When the doors are sealed with a clip, it is necessary to use force to break the metal seal in order to open the doors.

The second or rear trailer had a rear door and a side door, which doors were locked with devices or padlocks which could be opened only by using a key.

When the driver left the warehouse the doors of the trailers were sealed or locked and he did not stop the vehicle, except for traffic requirements, until he arrived at the Compton store. After parking the vehicle there, he went into the store to ask the manager to unlock the trailers so that he could make the deliveries. When he left the vehicle to enter the store, the doors of the trailers were sealed or locked in the manner above described, but the doors of the tractor were not locked. The assistant manager Mr. Banks, after obtaining the key to the trailer, proceeded with Mr. Collier and another employee, Mr. Collado, to the trailers. As they approached the trailers, they saw the defendant Massie standing inside the first trailer and they saw another man, who was outside that trailer, holding the side door of the trailer open. The metal seal on that door had been broken. Then the man who was holding the door ran away. The defendant jumped out of the trailer and started walking away. The employees asked him to stop, but he kept walking and then he ran across the street. During this time the employees were following him. When they were within a few feet of him, he pulled out a knife and began swinging it. Mr. Collado went to the store and returned in his automobile to the other employees, who entered the automobile, and then they followed defendant to a street corner, where they again approached him. At that time Mr. Callado had a tire iron in his hand and the two other employees had similar weapons. They compelled the defendant to put the knife on the ground, and to drop a pair of leather gloves which he was wearing and which had been in the tractor cab when Mr. Collier went into the store. Then two police officers, who were on patrol duty, arrived there in a police car and arrested defendant.

Officer Parker testified that about five minutes after the arrest, while he and the defendant were in the back seat of the police car, he asked the defendant to relate what had occurred just prior to the arrest; and that defendant's statements at that time were made freely and voluntarily. When the deputy district attorney asked him to relate that conversation, defendant's counsel objected thereto upon the ground that the corpus delicti had not been proved. His argument upon the objection was to the effect that the vehicle was not a locked vehicle (as required by section 459 of the Penal Code in order to constitute burglary), and therefore a burglary was not committed--that is, that since the tractor doors were not locked the vehicle was not a locked vehicle, even though the two-trailers attached to the tractor were locked. The objection was overruled. Then Officer Parker related the conversation, as follows: Defendant said that he and Henry Eberhardt had been in the drug store where Eberhardt shoplifted a quart of whiskey, and then they went outside near the truck; Eberhardt found leather gloves in the cab of the truck; they agreed to break into the truck and that Eberhardt would get inside, pitch things out to defendant, and then they would leave; both of them entered the truck, after Eberhardt broke the seal; soon thereafter the employees came and chased them from the truck.

Officer Morrison testified that on December 5 (two days after the arrest) he had a conversation with the defendant at the police station; and that defendant's statements at that time were made freely and voluntarily. He (officer) asked the defendant to relate the circumstances which brought about his arrest. Defendant replied that he and Henry Eberhardt were in the drug store and Henry took a bottle of whiskey and they left the store; Henry took some gloves from the cab of the parked truck (tractor) and handed them to defendant, who put them on his (defendant's) hands; and Henry broke the seal on the trailer door and got into the trailer. The officer asked the defendant whether he entered the trailer. Defendant replied, 'No'; and stated further that when some employees came from the store, Henry ran from the scene, and defendant walked away and then 'ran.' The officer asked him whether he pulled a knife on the employees, and had swung it at them in a threatening manner. He replied in the affirmative.

Defendant testified that Eberhardt took the gloves from the cab of the truck and handed them to defendant, who returned them to Eberhardt; defendant did not know whether Eberhardt broke the seal on the truck, but Eberhardt went into the truck; defendant did not go inside the truck; when the employees came there, Eberhardt jumped out of the truck and ran away, but defendant walked down the street; the employees asked whether he was burglarizing the truck; he said he did not know anything about the truck or burglarizing; the employees wanted to hold him, but he said, 'No, you are not going to hold me.'; he ran across the street because some cars were coming; when the employees were first following him, they did not have any weapons, but later they had 'hook blade knives'; one of the employees flashed a light on him and asked whether he had a knife; then defendant threw a knife in the grass; at this time, the officers came and put him in the police car; he did not have a conversation with Officer Parker in the car; he did not tell Officer Morrison that he was inside the truck. On cross-examination, he said that when he was arrested he had the gloves in his hand; that he knew that Eberhardt was inside the truck to do some stealing; that he did talk to Officer Parker while they were in the car, but defendant did not say that he and Eberhardt agreed to break into the truck.

Appellant contends that the court erred in giving the following two instructions: (1) '* * * that the word 'lock' means to make fast by the interlinking or interlacing of parts.' (2) 'If you find as a matter of fact that all the doors of the semi-trailer were secured with metal seals such as Exhibit No. 1 in evidence prior to the entry, and that application of some force was required to break the seal to permit entry to the interior of the vehicle through the door, then such vehicle was locked within the meaning of the law.' Appellant argues that these are instructions on questions of fact, and that they instruct the jury that a seal is a lock. Section 459 of the Penal Code provides, in part: 'Every person who enters any house * * * or other building * * * trailer coach as defined by the Vehicle Code, Vehicle as defined by said code when the doors of such vehicle are locked, * * * with intent to commit * * * larceny or any felony is guilty of...