People v. De Prima

• Decision Date: 17 July 1959
• Docket Number: Cr. 3523
• Citation: 172 Cal.App.2d 109,341 P.2d 840
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Carl DE PRIMA and Silvio Domenico, Defendants and Appellants.

Page 840

341 P.2d 840

172 Cal.App.2d 109

PEOPLE of the State of California, Plaintiff and Respondent, v. Carl DE PRIMA and Silvio Domenico, Defendants and Appellants.

Cr. 3523.

District Court of Appeal, First District, Division 2, California.

July 17, 1959.

Hearing Denied Sept. 11, 1959.

Cragen & Wadleigh, Edward L. Cragen, San Francisco, for appellants.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

Defendants Carl De Prima and Silvio Domenico were indicted by the Grand Jury of the City and County of San Francisco for conspiracy and burglary. Pen.Code, §§ 182, 459. Defendant Domenico was also indicted for a violation of section 12021 of the Penal Code. Possession of a weapon by a former felon. Both pleaded not guilty and admitted the prior convictions charged by the indictment. A jury trial resulted in a verdict finding both the defendants guilty of conspiracy and burglary in the second degree. They appeal from the judgment of conviction and the order denying their motion for a new trial, arguing that they were denied a fair trial because of certain acts and arguments of the prosecution, and the trial court's erroneous exclusion of certain evidence relating to the defense of entrapment.

The facts are not in dispute. The complaining witness, Massirio, was the co-owner of the Ebb Tide Bar at 641 Bush Street on an alley called Chelsea Place in San Francisco. On the evening of September 10, 1957, he was tending bar there. About 1:30 A.M. the defendants entered. Domenico ordered a beer and De Prima went downstairs to the men's room.

After the defendants left about 2 A.M., Massirio went to the men's room and noticed that the false ceiling had been pulled down exposing the air vent which opened onto Chelsea Place. After locking up the Ebb Tide about 2:15 A.M., Massirio saw three men in a parked Chevrolet sedan. He thought two of the men were the defendants but was not certain of their identity.

Lieutenant Elbert of the burglary detail of the San Francisco Police, testified that between 1:15 and 2 A.M., he and Inspector Denser were stationed in Room 203 of the Colonial Hotel at 650 Bush Street, right across the street from the Ebb Tide. They saw Mr. Massirio lock up and about 10 minutes later saw two men going east on the south side of Bush Street. The taller of the two men went down the Chelsea Place alley to the wall of the Ebb Tide, and he began to work on a window. The shorter man walked back and forth as a lookout. There were loud metal thumps as if someone was trying to remove the grill in the basement window of the Ebb Tide. Then the taller man entered the building head first through the basement window, while the other man walked down Bush Street and out of sight. Lieutenant Elbert made contact with other police officers in the area and kept watching for about 20 minutes until the tall man emerged by the basement window.

Officer Denser also saw the defendant De Prima working on the grate, enter the air vent and later emerge. He ran to the alley and found the defendant De Prima lying on a newspaper on the pavement. A pair of combination pliers and wirecutters were found underneath the newspaper. At the trial, a criminologist testified that these cutters had made the cuts on the grate of the basement window. Roger Elauria, who lived on the 6th floor of the building where the Ebb Tide was located, heard the noise, and through his binoculars observed someone crawling into the Ebb Tide. A subsequent investigation at the Ebb Tide revealed that the grill to the basement window had been removed, an entry made through the air vent; and that an attempt had been made to break into the liquor room.

Meanwhile, Lieutenant Elbert had left to look for the other man. Lieutenant Elbert heard an engine start in a car and saw two men in a Chevrolet. He recognized one of them as the shorter man and later identified him as the defendant Domenico. Another police officer also identified the defendant Domenico as being in the area at the time of the break-in at the Ebb Tide. The other person in the car was one Maurice 'Bo' Friedman, who pled guilty to the burglary charged by the indictment. A 22-caliber pistol was later found in the car under the seat where the defendant Domenico had been sitting. This weapon was admitted into evidence at the trial.

At the trial, only the defendant De Prima took the witness stand. He admitted going to the Ebb Tide about 1:30 A.M. on September 10th, and that he was to conceal himself inside the bar. He stated that he had tried to secrete himself in the ceiling of the men's room, and admitted breaking in the grill of the basement window. He also stated that Domenico was in the area.

The first allegation of error on appeal relates chiefly to the prosecution's allegedly improper attempts to bring the defendant Domenico's prior criminal offense to the attention of the jury. As the defendant De Prima took the stand and by his testimony virtually admitted both crimes and the presence of the defendant Domenico, the alleged error could not have in any way been prejudicial to him. We will therefore treat the first alleged error only in relation to the defendant Domenico.

The error relates to the following occurrences. At the close of the prosecution's case, over objection, proof of the defendant Domenico's criminal record was introduced as part of the proof of the charge of the violation of section 12021 of the Penal Code. The district attorney then rested his case and the court adjourned for lunch. After lunch, the district attorney moved to dismiss this charge for lack of sufficient evidence to connect the defendants with the pistol found in the automobile. The motion was granted. On appeal, defendant Domenico argues that his prior record should not have been introduced as he did not take the witness stand, and that the district attorney's subsequent motion indicates lack of good faith. There is no merit to either of these arguments. It was not error to admit the record of the prior conviction where it was an element of the offense charging possession of a weapon by a former felon. Pen.Code, § 12021; People v. Garrow, 130 Cal.App.2d 75, 278 P.2d 475. The elements of this offense are conviction of a felony and ownership or possession of a firearm. People v. Schunke, 47 Cal.App.2d 542, 118 P.2d 314. The determination of the element of possession is a question of fact for the jury. People v. Glancy, 142 Cal.App.2d 669, 299 P.2d 18. The presence of the gun here raised a sufficient inference of possession by the defendant Domenico to warrant an indictment. There is nothing in the record to indicate bad faith on the part of the prosecution, or to overcome the presumption of regularity of the actions of the district attorney. Error will not be presumed on appeal. People v. Farrara, 46 Cal.2d 265, 294 P.2d 21.

It is also argued that the following colloquy, which occurred on cross-examination of the defendant De Prima, was prejudicial reversible error.

'Q. Well, you knew Mr. Domenico, isn't that true, sir? A. No, sir.

'Q. You knew Domenico when you were in San Quentin together? A. No, sir. Afraid you are wrong. You better check your record there.'

While the question is clearly erroneous, there were no objections made to this line of cross-examination, nor was a motion to strike made, nor was the court requested to admonish the jury. The failure to object waives the objection and defendant cannot object for the first time on appeal. People v. Beal, 108 Cal.App.2d 200, 239 P.2d 84; People v. Simon, 80 Cal.App. 675, 252 P. 758. In People v. Wardwell, 167 Cal.App.2d 20, 334 P.2d 641, a somewhat similar question was upheld as...