People v. Putty

• Decision Date: 22 June 1967
• Docket Number: Cr. 11479
• Citation: 251 Cal.App.2d 991,59 Cal.Rptr. 881
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Dee PUTTY, Defendant and Appellant.

Page 881

59 Cal.Rptr. 881

251 Cal.App.2d 991

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Dee PUTTY, Defendant and Appellant.

Cr. 11479.

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

June 22, 1967.

Arthur Mabry, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant appeals from the judgment entered following a jury trial that resulted in his conviction of receiving stolen property in violation of Penal Code section 496. His purported appeal from the order denying his motion for new trial must be dismissed. (Pen.Code, § 1237.) Prior convictions of burglary and grand theft were admitted by appellant.

Appellant contends that his oral incriminating statements were improperly received in evidence because (1) there was insufficient evidence Aliunde these statements to establish the corpus delicti; and (2) the undercover officers who were negotiating with appellant for the purchase of the stolen items failed to advise him of his constitutional rights as required by People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. Appellant further contends that he was denied his 'constitutional right of equal protection' by reason of the trial court's refusal to order preparation of a full reporter's transcript to assist his substituted counsel in arguing his motion for a new trial.

We have concluded that appellant's contentions are without merit. Our review of the record has disclosed the absence of error and the presence of overwhelming evidence of appellant's guilt.

A warehouse owned by the Rochlin Company, an exclusive factory representative for several lines of machine tools, was burglarized on July 9, 1964. The missing merchandise included straight and stagger-tooth key set cutters, center drills and lengths, arbor type cutters, and T-slot cutters. Their value at dealer's cost was slightly under $15,000.

On November 2, 1964, the premises owned by the Swiss Precision Instruments Company were also burglarized. Among the stolen merchandise were Universal drill jigs, micrometers, a special type of Swiss drill chuck of which the company was the sole importer in the United States, and rare rotary tables of which the company was the sole distributor in the eleven Western states. The wholesale value of the missing goods was approximately $7,500.

Marvin Bell, who operated a Texaco service station in Los Angeles, testified that on February 15, 1965, appellant, whom he had seen on two or three prior occasions, drove into his station in a 1958 Buick and inquired if Bell could 'handle or sell' some machine tools for him. Bell asked appellant whether the items were 'hot,' i.e., stolen. Appellant replied, 'By this time they should be cool, they are approximately seven months old, and there should be no heat behind them.'

Bell told appellant that he might agree to handle the items but that appellant would first have to provide him with a sample of the merchandise to show a prospective buyer. Appellant replied that this was agreeable to him and left, stating that he would return later that day with a sample. Bell then contacted the police. At 3 or 4 p.m. that day, appellant returned to the station bringing numerous small containers, in which there were various sizes of key set cutters and a box of angle drills. Appellant left these items as samples to be shown to a prospective buyer.

Appellant told Bell that he had approximately $6,000 worth of this particular type of cutter and approximately $30,000 worth of various types of machine tools. Bell said that he would obtain as much for the tools as possible and agreed to appellant's request that he attempt to obtain 35 percent of list price for the merchandise. Bell advised appellant that he was almost positive that he could make a sale and requested appellant to leave the remainder of the merchandise with Bell on 'consignment.'

Later the same day appellant returned to the station and showed Bell a crate of tools inside the trunk of appellant's automobile. It weighed some 150 to 175 pounds and was removed and placed in Bell's car in accordance with their 'consignment' agreement. Appellant indicated that Bell should attempt to sell them for $600 and accepted a $20 advance payment on the sale from Bell when the latter indicated that he did not have the $200 requested by appellant. Thereafter, Bell showed these tools to Officer Richard Olson of the Los Angeles Police Department.

On February 17, 1965, Officer Olson, representing himself as a 'reliable businessman,' met with Bell and appellant and informed appellant that while he wished to purchase such equipment, he was hesitant to make such a small purchase of stolen merchandise. Although Bell told appellant that he knew Olson and that he was 'all right' appellant indicated that while he had additional merchandise, it was in the City of Oakland and he preferred to sell it to Bell rather than to Olson directly. However, after further negotiations in which appellant indicated that he would require payment for the merchandise already delivered to pay for the expenses of his trip to pick up the remainder of the property, appellant accepted $250 as part payment and gave Olson a written receipt signed 'Mr. Davis.' Appellant told Olson that when he knew him better he would put him in contact with a friend who would sell him $40,000 worth of merchandise 'at the right price.' In the interim, appellant said that he would go to Oakland, pick up $12,000 worth of tools, and let Bell know on the following day where Olson and appellant could meet to arrange the sale of these additional items.

Thereafter, other officers kept appellant's car under surveillance and followed it after it left Los Angeles as far as Indio, California. They broke off surveillance after appellant continued on in the direction of Blythe and Arizona. On the following day law enforcement officers at Blythe informed the Los Angeles police that appellant's car had reentered the state. The Los Angeles police resumed their surveillance when appellant's car, driven by appellant, was observed entering the Los Angeles area on the San Bernardino Freeway near Covina. Contrary to its appearance when it left the city, the vehicle now appeared to be riding low because of a heavy weight in the trunk.

On instructions received over the radio, the trailing officers stopped appellant's car and placed him under arrest. One of the officers knew appellant and had arrested him in 1964 on a charge involving burglary and theft of precision machinery tools. He advised appellant of his constitutional rights in accordance with the rule enunciated in People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and appellant indicated that he understood these rights. Appellant thereafter stated that he had driven up to Oakland and obtained a load of tools from a man named James Jefferson. A search of the trunk of appellant's car revealed numerous tools subsequently established as among those stolen in the Rochlin Company and Swiss Precision Instruments Company burglaries. Appellant related that James Jefferson and other men would commit burglaries and obtain the tools and that he 'was merely selling them for them.' Appellant claimed to have paid Jefferson $100 for the tools found in his car at the time of his arrest.

By way of defense appellant testified that he had purchased the stolen equipment in good faith from a person named Leon Wagner in Burbank. He had never asked Wagner if the tools had been stolen because Wagner 'seemed the business type.' Appellant said that he paid cash for the tools and offered into evidence two sales slips and two bills of sale covering purchases on February 15 and February 18, 1965, of $790 worth of key set cutters and assorted drills.

Appellant denied that he had ever left the city or that he had ever told Bell or Olson that he knew the merchandise was 'hot.' When a recording of his conversation with the police following his arrest was played before the jury for impeachment purposes during his croww-examination, he denied that either of the voices was his.

Appellant's contention that the court should not have permitted evidence concerning his statements made to Bell and later to Officer Olson during their negotiations for the sale of the stolen property is not well taken in the first instance because such statements are not truly within the basic rules relating to hearsay and extrajudicial confessions and admissions. That is to say, those statements indicating appellant's awareness or belief that the merchandise was stolen were not introduced to prove that the merchandise, in fact, was stolen property. They were 'verbal acts' property received both to explain the physical acts they accompanied and also as evidence relating to appellant's knowledge and state of mind.

"The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as Assertions to Evidence the truth of the matter asserted.' (6 Wigmore, Evidence (3d ed. 1940), § 1766, p. 178, cited with approval in People v. Bickley, 57 Cal.2d 788, 795, 22 Cal.Rptr. 340, 372 P.2d 100.)

'As said in People v. Marsh, 58 Cal.2d 732, 738(6), 26 Cal.Rptr. 300, 304, 376 P.2d 300, 304: 'Wigmore says, 'Wherever an utterance is offered to evidence the State of Mind which ensued In another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned." (6 Wigmore, Evidence (3d ed. 1940) p. 235. See also 1 Wharton, Criminal Evidence (12th ed. 1955) p. 591, 'The question is merely whether they had any effect upon the mental state of the defendant.')

"California is in accord with...