People v. Phelps

• Decision Date: 11 May 1961
• Docket Number: Cr. 7498
• Citation: 13 Cal.Rptr. 383,192 Cal.App.2d 12
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wilson PHELPS, Defendant and Appellant.

Page 383

13 Cal.Rptr. 383

192 Cal.App.2d 12

PEOPLE of the State of California, Plaintiff and Respondent, v. Wilson PHELPS, Defendant and Appellant.

Cr. 7498.

District Court of Appeal, Second District, Division 1, California.

May 11, 1961.

Elinor Chandler Katz, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., George W. Kell, deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was found guilty of grand theft; appealing from the judgment, he attacks the sufficiency of the evidence to connect him with the crime.

The cause was submitted to the trial court on the transcript of the preliminary hearing. The evidence shows without dispute that between November 11, 1959, and December 1, 1959, six diamond grinding wheels (Exhibits 1A-F), valued at about $238 each, were stolen from Northrup Aviation. It is not denied that shortly after their theft defendant had the stolen wheels in his Possession and attempted to sell them to A-I Carbide Cutter Service for a price far below their value. On December 1, 1959, defendant telephoned A. A. Morris of A-I Carbide and offered to sell him six grinding wheels for $150 each; defendant told him a friend gave them to him to sell and although the friend was not local, he had a letter from him authorizing him to sell the wheels. Believing the property to have been stolen because of the 'very low price' at which it was offered, and because defendant did not represent an authorized distributing agency and was unable to accurately describe the wheels; and not interested in buying 'hot material,' he told defendant he would have to see the wheels. Morris then called the Los Angeles police; shortly thereafter, officers Michaelson and Stephanson arrived at A-I Carbide and were present when defendant brought in the wheels. Michaelson talked to defendant, who told the officer they originally belonged to his brother, Charles Grover Phelps, and had been turned over to him in part payment of a debt, and that he was short of money and decided to sell them. The officers asked defendant to accompany them to the station, which he did; they investigated the ownership of the wheels while he was there, which defendant agreed they should do. He was at the station a 'couple' of hours, but was neither arrested nor detained; later police called him to pick up the wheels. Officer Martin of Hawthorne Police thereafter arrested defendant and on December 4, 1959, talked to him at the station; present was Louis Reynolds. Reynolds told them that he removed some wheels from Northrup and took them to his place of business where he met defendant; that he took defendant to the back room and showed him the wheels; that defendant agreed to take them and try to sell them; and that a week before the theft he talked to defendant 'in regards to talking anything along the tooling design.' Reynolds was excused, and the officers then asked defendant if he had heard Reynolds' statement and if it was true; he said that he had and that it was. Af the trial defendant neither offered evidence in his defense, nor testified on his behalf; Reynolds was not present.

Appellant argues that there is no evidence that he knew the wheels were stolen or that he took them. We can hardly find merit to such an argument in the face of defendant's possession of the stolen wheels within a short time after their theft, his conduct in connection therewith, such as his attempted disposition of them, his offer to sell them at far less than their value and his lack of technical knowledge concerning them, defendant's false, inconsistent and misleading statements relative to his possession of the property, and his failure to testify--deny or explain under oath.

The essence of grand theft, as here involved, is the felonious taking of the personal property of another (People v. Flores, 58 Cal.App.2d 764, 137 P.2d 767; Sections 484, 487, subd. 1, Penal Code); and our examination of the record has compelled the conclusion that the evidence warrants the trial court's adjudication of defendant's guilt. While the case for the prosecution was mainly circumstantial and there was no evidence that anyone saw defendant take the wheels and no direct admission by him that he did so, under the present circumstances, neither is necessary to uphold his conviction. People v. Alexander, 92 Cal.App.2d 230, 206 P.2d 657; People v. Lancellotti, 147 Cal.App.2d 723, 305 P.2d 926. Although mere possession of stolen property will not sustain the possessor's conviction of its theft, such possession plus 'slight corroborative evidence of other inculpatory circumstances' (People v. Holland, 82 Cal.App.2d 310, 312, 186 P.2d 58, 59; People v. Wissenfeld, 36 Cal.2d 758, 763, 227 P.2d 833; People v. Citrino, 46 Cal.2d 284, 294 P.2d 32; People v. Thompson, 120 Cal.App.2d 359, 260 P.2d 1019), such as acts, conduct or declarations of the accused tending to show his guilt (People v. Citrino, 46 Cal.2d 284, 294 P.2d 32; People v. Boxer, 137 Cal. 562, 70 P. 671), false and misleading accounts of possession (People v. Conrad, 125 Cal.App.2d 184, 270 P.2d 31; People v. Goodall, 104 Cal.App.2d 242, 231 P.2d 119; People v. Machabie, 33 Cal.2d 67, 198 P.2d 681; People v. Buratti, 96 Cal.App.2d 417, 215 P.2d 500), failure to show honest possession (People v. Lang, 142 Cal. 482, 76 P. 232; People v. Taylor, 4 Cal.App.2d 214, 40 P.2d 870; People v. Blackburn, 65 Cal.App.2d 538, 151 P.2d 24), and an attempted disposition of the property for less than its value (People v. Clark, 122 Cal.App.2d 342, 265 P.2d 43; People v. Buratti, 96 Cal.App.2d 417, 215 P.2d 500), will suffice.

Appellant relies primarily on the testimony of officer Andis that Reynolds admitted to him he took the wheels and gave them to defendant to sell, and that defendant, after hearing Reynolds' story stated it to be true. Inasmuch as the other evidence is more than sufficient to show defendant's guilt of the theft, that the district attorney introduced Reynolds' statement, which if believed tended to prove that Reynolds instead of defendant stole the wheels, is of little import, for 'if there is prosecution evidence which tends to disprove criminality and other prosecution evidence which tends to prove criminality, it is the function of the trier of fact to determine which version is to be believed. (See People v. Freudenberg (1953), 121 Cal.App.2d 564, 575-576, 263 P.2d 875; People v. Rutland (1953), 120 Cal.App.2d 798, 800, 261 P.2d 735; cf. People v. Howard (1930), 211 Cal. 322, 329-330, 295 P. 333 71 A.L.R. 1385; People v. Holt (1944), 25 Cal.2d 59, 90-93, 153 P.2d 21.)' People v. Acosta, 45 Cal.2d 538, 542, 290 P.2d 1, 4. Whole the prosecution, having offered the testimony of officer Andis, may be bound thereby if the trial court attaches any credibility, not only to the officer's testimony, but to the statements of Reynolds and defendant contained therein, it appears here that the trial court considered neither Reynolds' statement to Andis worthy of belief, nor defendant's acknowledgment that it was true as anything tending to exonerate him but as just another explanation of possession inconsistent with his other two accounts, adding one more to an already imposing list of incriminating circumstances pointing to his guilt of the theft. Such a conclusion was wholly justified inasmuch as Reynolds neither testified nor was present at the trial; defe...