People v. Molano

• Decision Date: 24 August 1967
• Docket Number: Cr. 12055
• Citation: 253 Cal.App.2d 841,61 Cal.Rptr. 821
• Court: California Court of Appeals Court of Appeals
• Parties: , 18 A.L.R.3d 1328 The PEOPLE, Plaintiff and Respondent, v. Mike Lopez MOLANO, Defendant and Appellant.

Page 821

61 Cal.Rptr. 821

253 Cal.App.2d 841, 18 A.L.R.3d 1328

The PEOPLE, Plaintiff and Respondent, v. Mike Lopez MOLANO, Defendant and Appellant.

Cr. 12055.

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

Aug. 24, 1967.

Hearing Denied Oct. 19, 1967.

Richard S. Buckley, Public Defender of Los Angeles County, Fred Kilbride and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and August J. Ginocchio, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

Mike Lopez Molano and Norma Lee Tuck were jointly charged with burglary. The same information charged Tuck alone with possession of marijuana (Health & Saf. Code § 11530.) A prior felony conviction for possession of narcotics (Health & Saf. Code § 11500), was alleged against Molano. Before the trial commenced, Molano admitted the prior conviction and moved to sever from the proceedings the marijuana charge against his codefendant. The court denied the motion. Defendants were tried by a jury and convicted as charged. Molano alone appeals from the judgment.

Briefly, these are the facts: When Bill Warren returned to his home at about 4:00 p.m. on April 3, 1965, he discovered the house had been broken into. No one had his permission to enter. A screen on the bedroom window was cut and the doors, which he had left locked, were open. Missing was his typewriter, an adding machine, $290 he had left in a shirt in a closet and four $2 bills which were inside a can in the kitchen.

He left the house that morning at about 11:00 a.m. accompanied by defendant Tuck, a female friend whom he had known for about six months. Upon his discovery of the burglary, he immediately called the police. He informed them he believed Tuck was responsible.

D. J. Collier was the investigating officer on the case. He talked to Warren on April 4. Warren told him that he suspected Tuck. After further investigating the case, on April 21 he arrested Tuck and Molano at an apartment on Huntington Drive. When Tuck first opened the door, the officer observed Molano lying on a bed in the living room. He advised them both of their constitutional rights to silence and counsel, and they stated they understood. He and his partner officers then searched the apartment. They found Warren's typewriter in the kitchen. They also found two marijuana cigarettes in a kitchen drawer and a newspaper-wrapped package of marijuana on a balcony adjacent to the living room and kitchen. They discovered Warren's adding machine in the trunk of Tuck's car after she told them where it was located.

Both defendants gave statements to Collier at the apartment and a short time later when they arrived at the police station. Tuck admitted having gone to Warren's apartment with Molano, having broken in and having taken a typewriter, adding machine and about $115 in cash. She indicated she told Molano they were going to the apartment to borrow the typewriter and adding machine. Upon being questioned about the marijuana, she stated that it belonged to her; that Molano knew nothing about it; she had, the day before, traded a Mexican six rolls of reds (Nembutal) for the marijuana found in the package on the balcony; she traded one roll of reds to a 'hype' who had come to the door that morning for the two marijuana cigarettes found in the kitchen.

Molano stated to Officer Collier that he went to the house with Tuck, who told him it belonged to Warren. After they forced the screen on the window, they entered and took a typewriter and adding machine. He related that he knew nothing about any money; that he did not get any.

In her testimony, Tuck stated that she had been seeing Warren about three times a week for more than a year. Before they left his house on the morning of April 3, he told her she could use his typewriter and adding machine to practice for a job. She told him she would pick them up later that day. When she came back with Molano and could not find the key where it was usually located, they went inside through a window and took the typewriter and adding machine. She did not take any money and did not tell the officers that she had done so. She knew nothing about the marijuana and denied telling the officers it belonged to her.

Molano did not testify.

He contends the trial court abused its discretion in failing to grant his motion to have the marijuana charge against his codefendant tried separately from the burglary count they were both charged with committing. It is his position that, under the circumstances, the denial of the motion deprived him of a fair trial.

In determining whether there was an abuse of discretion in the denial of the motion for severance, we must look to the facts before the court at the time the motion was made. (People v. Santo, 43 Cal.2d 319, 332, 273 P.2d 249.) Defendant made the motion on the day of the trial and before the selection of the jury. As a basis for the motion, his counsel argued that the presence of the marijuana charge against his codefendant would have a prejudicial effect on his case since the marijuana was found at a place where both he and the codefendant were living when arrested. Counsel asserted that the offenses were not properly joined; that no tangible connection existed between the offenses other than the fact the marijuana was found at the time the defendants were arrested on the burglary charge.

When the motion was made, the court inquired whether counsel for the People was in opposition to it. No opposition was voiced. Just before making the motion, the fact of defendant Molano's prior narcotics record was called to the court's attention.

Section 954 of the Penal Code permits joinder of different offenses where they relate to the same transaction or event, or where there is a common element of substantial importance in their commission. (People v. Scott, 24 Cal.2d 774, 778--779, 151 P.2d 517.) Section 1098 provides for joint trials of defendants jointly charged. (People v. Chapman, 52 Cal.2d 95, 97, 338 P.2d 428.) These sections do not permit the joinder or consolidation for trial of an information or informations charging different defendants with separate, distinct and unconnected crimes. (People v. Davis, 42 Cal.App.2d 70, 72, 108 P.2d 85; see also People v. Duane, 21 Cal.2d 71, 76, 130 P.2d 123.) This was the case here. The burglary and the marijuana charges were indeed unrelated and therefore not properly joined.

As counsel for defendant in essence argued when the motion for severance was made, since the narcotics were found in an apartment he and his codefendant shared, to allow the narcotics charge to be tried against her in their trial on the burglary charge, created the very real possibility that the jury would in effect try him for that offense along with her; that not being able to convict him of that charge, could prejudicially influence his case on the burglary charge. (See People v. Chambers, 231 Cal.App.2d 23, 41 Cal.Rptr. 551.)

An added point which the court had to consider, was the fact that if defendant chose to testify, his prior narcotics record could have been brought to the attention of the jury. As it turned out, defendant elected not to testify. (His counsel later indicated his decision not to put defendant on the stand, was motivated by this realization.)

We conclude that,...