People v. McCleary

• Court: California Court of Appeals
• Writing for the Court: JEFFERSON; BURKE, P. J., and BALTHIS
• Citation: People v. McCleary, 205 Cal.App.2d 432, 23 Cal.Rptr. 173 (Cal. App. 1962)
• Decision Date: 03 July 1962
• Docket Number: Cr. 7640
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Everett McCLEARY, Defendant and Appellant.

Page 173

23 Cal.Rptr. 173

205 Cal.App.2d 432

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Everett McCLEARY, Defendant and Appellant.

Cr. 7640.

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

July 3, 1962.

Rehearing Denied July 18, 1962.

Hearing Denied Aug. 29, 1962.

Lawrence Everett McCleary, in pro. per. defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

Defendant entered a plea of not guilty to an information charging violation of section 459 of the Penal Code, burglary. Defendant was represented by counsel. Trial was by the court, trial by jury having been duly waived by defendant personally and by all counsel. Defendant was found guilty of burglary of the second degree. The court found that two prior convictions for burglary and a prior conviction for violation of the Deadly Weapons' Control Law were true as alleged. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. This is an appeal from the judgment and an order denying motion for new trial.

The People produced four witnesses. Three of these witnesses (an owner of the burglarized premises and two sheriff's deputies) offered testimony which showed only that a burglary had been committed. The other witness for the People, Miss Pamela Laron, offered the only testimony which directly connected defendant with the commission of the crime. The only witness produced by the defense was a co-defendant testifying in his own behalf. He testified that he had never known defendant.

Defendant's primary contention on appeal is that the testimony of Miss Laron was that of an accomplice. Section 1111 of the Penal Code provides that conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. An accomplice is defined as one who is liable to prosecution for the identical offense charged against the defendant.

The trial court, sitting as a trier of law and fact, found that Miss Laron was not an accomplice; and therefore, it was not mandatory that her testimony be corroborated. Defendant contends that the participation of Miss Laron in the crime charged, revealed by her own testimony, is of such incriminating force as to compel a finding that she was an accomplice as a matter of law. The record indicates Miss Laron was a seventeen year old girl who had been living in an apartment with a male co-defendant. On the morning the crime was perpetrated, Miss Laron was in the apartment and overheard defendant along with other co-defendants discussing plans to 'break into the Melody Inn.' Concerning this conversation, she was asked on direct examination, 'Were you participating in this conversation in any way, other than by listening?' She answered, 'Yes. I said I didn't think it was such a good idea, but I'm not a very big person.' Defendant and his co-defendants thereafter left the apartment, and Miss Laron remained in the apartment until they returned approximately four hours later. On direct examination Miss Laron was asked whether she engaged in any conversation with defendants when they returned to the apartment. She replied, 'When they did come back dirty, I did ask them where the safe was, and they said in the car. That's all I said.'

Later the same day Miss Laron accompanied defendant and his co-defendants to the location where the safe was opened. On direct examination she was asked whether she did this voluntarily. She answered, 'Well, I probably could have stayed behind, but I went ahead, anyway. I guess I really wanted to see if there really was safe in there.' Miss Laron's further participation was limited to being given some of the rolls of small change found in the safe to take to commercial establishments and get changed into larger currency which she gave to the co-defendants.

On cross-examination Miss Laron was asked if she received some of the money for herself. She replied, 'No, just maybe what he might have spent on the apartment for food.' It was also brought out on cross-examination that one of the co-defendants bought a few things for Miss Laron which may have possibly been purchased with some of the money from the safe.

Miss Laron was a ward of the Juvenile Court, and during this period of time she was a run-away from a foster home. Subsequent to these events, she voluntarily surrendered to the authorities. She testified that her testimony in this case was not based...