People v. Moody, Cr. 27886

• Court: California Court of Appeals
• Writing for the Court: ROTH
• Citation: 131 Cal.Rptr. 923,59 Cal.App.3d 357
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Michael MOODY, Defendant and Appellant.
• Decision Date: 09 June 1976
• Docket Number: Cr. 27886

Page 923

131 Cal.Rptr. 923 59 Cal.App.3d 357 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Richard Michael MOODY, Defendant and Appellant. Cr. 27886. Court of Appeal, Second District, Division 2, California. June 9, 1976.
Hearing Denied July 21, 1976.

[59 Cal.App.3d 359]

Page 925

George S. Vorgitch, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Sandy R. Kriegler, Deputy Attys. Gen., for plaintiff and respondent.

[59 Cal.App.3d 360] ROTH, Presiding Justice.

Appellant, Richard Michael Moody, appeals from the judgment entered on a jury verdict finding him guilty of burglary in the first degree. (Pen.Code, § 460.)

On May 30, 1975, 15-year-old Colleen G. was employed as a babysitter at a home in Arcadia, California. At about 11 p.m., Colleen and the four children she was babysitting fell asleep in the front room while watching television. Shortly before 3 a.m., Colleen awakened and sent the children upstairs to their bedrooms. After the children had gone to their bedrooms, Colleen heard a sound, turned and saw appellant standing in the hallway with his arms outstretched. Fearing for her personal safety she 'made some sort of noise' more a 'gasp' then a 'scream' and appellant turned and fled out the front door. Colleen immediately called the police and 15 minutes later two police cars arrived.

The police officer from one of the cars entered the house. The other coasted slowly up the street with its engine and lights off, stopped, and the officer in the latter car got out and hid behind some bushes. Within seconds the officer saw appellant come out of the yard of a house directly in back of the house in which Colleen was babysitting. The officer hollered at appellant to 'freeze,' but appellant ran. The officer gave chase and caught appellant near a fence. Appellant was taken back to the scene and identified by Colleen.

Appellant's defense of alibi was buttressed by his own testimony, members of his family, his girlfriend, and his girlfriend's mother. Essentially the defense was that appellant had been at a family gathering earlier in the evening after which he took an uncle home and then went to his aunt's house and finally ended up at the home of his girlfriend who lived across the street from the house in which Colleen was babysitting. The evidence to sustain the alibi was such, if believed, that appellant did not leave his girlfriend's house until sometime after Colleen was surprised by his presence. Appellant testified in addition that he had not been in the yard in which the officer's testimony had placed him and that he had run from the officer because officers were always 'hasseling' him and he wanted to hide. The prosecution moved to impeach appellant through the use of prior instances of conduct in which appellant had been involved. The motion was granted. Appellant asserts error.

[59 Cal.App.3d 361] At bench out of the presence of the jury appellant testified that in 1969 he had been arrested for and convicted of burglary. ¹ Prior to that arrest he had run across the street because, as he told the police, he did not want to be hasseled. That story was almost identical to the one he gave to the arresting officer in the case at bench. It is settled that when a defendant

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uses the same excuse to explain his conduct on more than one occasion his prior statements are admissible to prove his present explanation is fabricated. (People v. Ricketts (1970) 7 Cal.App.3d 441, 444--445, 86 Cal.Rptr. 647.)

Appellant urges that since his defense was an alibi, prior acts could only be relevant to the identity of the perpetrator of the burglary. (People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.) Appellant oversimplifies the principles involved and the nature of his defense which consisted of two separate but interrelated parts. First, he alleged that the reason he ran was because he had been hasseled by the police on prior occasions and he was running from the police so that they would not hassel him anymore, an innocent explanation of...