People v. Moreno

• Decision Date: 23 August 1976
• Docket Number: Cr. 2490
• Citation: 132 Cal.Rptr. 569,61 Cal.App.3d 688
• Parties: The PEOPLE, Plaintiff and Respondent, v. Henry Anthony MORENO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 569

132 Cal.Rptr. 569

61 Cal.App.3d 688

The PEOPLE, Plaintiff and Respondent, v. Henry Anthony MORENO, Defendant and Appellant.

Cr. 2490.

Court of Appeal, Fifth District, California.

Aug. 23, 1976.

J. Frank McCabe, San Francisco, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Eddie T. Keller, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

THOMPSON, ^* Associate Justice.

Defendant Henry Anthony Moreno appeals his conviction by a jury of violating sections 459 and 487 (subdivision 3) of the Penal Code, namely, burglary and grand theft of a firearm respectively. He was given concurrent sentences to state prison. No challenge is made as to the propriety and form of the sentences.

The following is a brief summary of the pertinent facts. The victim as to each count, a Mrs. Askin, returned to her apartment in the early morning hours of August 23, 1974. She immediately observed that her bed covering was missing and a search of her apartment disclosed that several items had been taken, including two cameras, a gun, a jewelry case, credit cards, feminine undergarments and other miscellaneous items. She observed that a bedroom window had been pried open and the screen removed. In investigating the burglary the police lifted several latent prints of the defendant from the window sill. A number of the stolen items were subsequently recovered from premises used by defendant.

At the trial the defendant's sole contention was that he was so drunk on the evening of the burglary that he had no recollection of his activities. He stated that when he awakened from his drunken stupor, he found the stolen items in his car, some of which he threw away and others he kept, such as the credit cards and the gun.

The prosecution also produced evidence that approximately a month subsequent to the Askin burglary he had burglarized the apartment of a Mrs. Noblett where he had likewise stolen feminine undergarments as well as other things.

The defendant's chief contentions on appeal center about the admission of evidence concerning the second burglary of the Noblett residence and the defendant's admission of having committed it.

We observe initially that any claim that the Noblett burglary was not admissible as probative evidence in refutation of the defendant's claim of diminished capacity is wholly unmeritorious. It would be difficult to construct two crimes more similar in every respect in the manner of their accomplishment and the objectives of the burglar, similarities which point unerringly to the defendant as a likely perpetrator of both crimes. The fact that the Noblett burglary was committed after the offense charged is of no consequence. (People v. Griffin (1967) 66 Cal.2d 459, 464, 58 Cal.Rptr. 107, 426 P.2d 507.)

A basic contention of the defendant is that since the trial court found by only a preponderance of the evidence, and expressly so stated that defendant's confession of the Noblett burglary was voluntary, the confession was inadmissible. The interrogating police officer, out of the presence of the jury, testified that the defendant had freely and voluntarily admitted the Noblett burglary after having been given his Miranda rights. The defendant admitted having been informed of his rights but asserted that he confessed to the Noblett burglary only because the interrogator promised to get help for him in curing his 'sexual hangup' over stealing female underclothing. As noted, the trial court admitted the confession as being free and voluntary, but specifically stated that it was applying the preponderance of the evidence test and would not have so found if the test was that of clear and convincing evidence or beyond a reasonable doubt. Our independent review of the record convinces us that the confession was free and voluntary, at the very least, by the standard used.

Despite its doubt, we believe the court applied the proper test. The case relied upon by the defendant, People v. Stroud (1969) 273 Cal.App.2d 670, 78 Cal.Rptr. 270, holding that proof of a confession must be tested by the beyond a reasonable doubt standard, has been expressly overruled by the United States Supreme Court in Lego v. Twomey (1972) 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618. The reasoning of the court in Lego v. Twomey, supra, seems particularly persuasive:

'But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.' (404 U.S. at pp. 488--489, 92 S.Ct. at p. 626.)

Our California Supreme Court in People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 10, 127 Cal.Rptr. 135, 544 P.2d 1335, takes cognizance of Lego v. Twomey, supra, but declines to express any opinion as to whether California will require a different standard. And in fact, in People v. Tewksbury, supra, 15 Cal.3d at p. 965, fn. 12, 127 Cal.Rptr. 135, 544 P.2d 1335, the court reaffirms the doctrine announced in People v. Lisenba (1939) 14 Cal.2d 403, 94 P.2d 569, that in proving a prior criminal act to demonstrate a common scheme or design the prior criminal act need not be proved beyond a reasonable doubt.

Such is the state of our case. The challenged confession here is not to the crimes charged but to an...