People v. Romano

• Decision Date: 01 December 1961
• Docket Number: Cr. 1
• Citation: 197 Cal.App.2d 622,17 Cal.Rptr. 399
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles I. ROMANO, Emilio Aquilante and Daniel Bozyk, Defendants and Appellants.

Page 399

17 Cal.Rptr. 399

197 Cal.App.2d 622

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles I. ROMANO, Emilio Aquilante and Daniel Bozyk, Defendants and Appellants.

Cr. 1.

District Court of Appeal, Fifth District, California.

Dec. 1, 1961.

Stanley Mosk, Atty. Gen., William E. James, Ass't. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

Edward I. Gritz, Russell E. Parsons, Los Angeles, for appellants.

CONLEY, Presiding Justice.

The defendants, Charles I. Romano; Emilio Aquilante, and Daniel Bozyk, were jointly charged with the burglary of Seiler's Men's Store in Bakersfield and in a second count with grand theft from the same establishment. The jury found Romano and Aquilante guilty on both counts and Bozyk guilty on the second count only. The defendants appeal from the judgments and from the denial of their motions for a new trial.

Defendants contend, first, that the corpus delicti of the crimes charged in the information was not proved; secondly, that the court committed reversible error by receiving in evidence certain statements of the defendants made shortly after their arrest; and thirdly, that the district attorney was guilty of prejudicial misconduct.

On the morning of July 7, 1960, the three defendants, trailed by two Los Angeles police officers, drove a yellow Mercury automobile on Highway 99 from Los Angeles to Bakersfield; upon arrival, the defendants made a left turn on 19th Street to H Street, turned left again to 18th Street and went two blocks east to Chester Avenue; they parked at 17th Place and I Street near an alley, put on their suit coats, glanced in the rearview mirror, and straightened their neckties; Aquilante combed his hair. The three defendants then walked to Seiler's Men's Store and entered. The Bakersfield Police Department had been alerted and joined the Los Angeles police officers in maintaining a surveillance. One officer entered the store and posted himself in the rear of the room. He saw the men by the suit racks; one of them (Bozyk) brought with him a brief case, the partitions of which had been removed; he placed it on the floor out of the line of vision of the witness; one of the other men took some clothing from the suit rack and made a gesture toward the brief case. The store manager testified that he saw Romano and Aquilante there; no sale was made to any of the defendants, and, in fact, only one sale of a suit, to another person, was made during the day.

Defendants left the store; Bozyk was carrying the brown leather brief case; one officer testified that it bulged more than when the three defendants had gone inside; another officer described it as 'considerably thicker'; a third policeman said that it was then 'so full it appeared to be round.' Bozyk walked out of sight while Romano and Quilante stood in front of the store momentarily and then returned to the car where they placed the brief case in the trunk. They then drove about eight blocks and parked two blocks away from the original parking spot. Again, they got out of the car, walked two blocks north to 20th Street, and separated. Bozyk walked north; Romano and Aquilante went back toward the car, secured a cardboard box, got in the car, drove to 20th Street, picked up Bozyk and drove at high speed to a dead-end. They opened the trunk of the car, got back in the car, drove onto Highway 99 and started south toward Los Angeles.

When they left Bakersfield Aquilante was driving; Romano was seated in the right front seat; and Bozyk in the rear of the car. A Bakersfield police officer followed about two car lengths behind. He saw Romano drop somethign out of the car; he stopped their vehicle one-fourth of a mile north of the town of Greenfield and found six new suits on hangers in a pile on the floor, the labels having been torn from the clothing. The now empty brief case was also in the automobile.

Four suit labels were found along the route taken by the defendants, three on that day and one the next day, all in the vicinity of 3rd Street and Highway 99 in an island poirtion of the highway.

Defendant Aquilante, when questioned at the time of his arrest, said he was a clothing jobber from Los Angeles. When his attention was called to the fact that all the labels had been removed from the garments found in the car, Aquilante showed the police officer that the label was also missing from the suit he was wearing. He claimed that the suits had been bought from a clothing outlet store and that they were to be sold to any available purchaser.

Seiler's Store was unable to determine if any specific item received by it from the manufacturer was missing, as they maintained only a cost and retail inventory; instead of keeping track of specific garments, they merely deducted from the value of their remaining stock all sales actually made. They carried Pinkus Brothers clothing, and Seiler's was the only store in Bakersfield which did so. The suits taken from the car were identified by a representative of Pinkus Brothers by comparing the clothing to swatches retained by the manufacturer and by the labels. He testified that each manufacturer has its own set of numbered labels. The cloth used in suits has lot numbers, and the shipping orders record these numbers. Pinkus Brothers had done business with Seiler's for many years, and from the shipping orders the manufacturer's representative could testify that the garments with these lot numbers had been shipped to Seiler's between September 1959 and May 1960. Proof was made that these goods were received by Seiler's.

An expert criminologist testified that he discovered part of the tag letters of the name 'Seiler's' still inside the lining of one of the suits; in his opinion two of the recovered coat labels had at one time been sewn in two of the suits. All of the suits were size 40 or 42, and each would retail for $69.50 to $75.

The police demonstrated to the jury that all of the clothing and hangers would go into the brief case.

It is, of course, essential in a charge of burglary to prove that the defendant entered the building with the specific intent to commit theft or some felony; as applied to theft, the intent must be to deprive the owner permanently of his property. Because of the particular inventory system used by Seiler's, the store manager could not say that a certain specific number of suits was missing on the day of the crime, but he did testify that the suits found in the defendants' automobile were the type sold in the store, that the two labels found were Seiler's labels, and that this was the only store in Bakersfield carrying that brand.

People v. Corral, 60 Cal.App.2d 66, 71, 140 P.2d 172, 175 holds:

'It was not necessary for any representative of the store to appear and testify to its ownership of the suits. Except for the bearing of that fact on the question of defendant's intent in entering the store, it was not material to the charge of burglary, for burglary would be complete without an actual theft (4 Cal.Jur. 720); and it was sufficiently proved by the showing that when defendant took the suits they were in possession of the store on hangers which were on the racks in its salesroom. (People v. Hayes (1925), 72 Cal.App. 292, 299, 237 P. 390; People v. Brannon (1939), 30 Cal.App.2d 445, 86 P.2d 842.)'

In People v. Brannon, supra, 30 Cal.App.2d 445, 446, 86 P.2d 842 the defendant entered a cafe, and, having removed the glass coverings on two slot machines, appropriated 97 dimes and 23 nickels therefrom; the burglary conviction was affirmed, for,

'It is the established law of this jurisdiction that proof that property was in the possession and under the control of the person from whom it is claimed to have been taken is sufficient proof of ownership to sustain a conviction of burglary.'

(See also People v. Hayes, 72 Cal.App. 292, 298, 237 P. 390; People v. Kirsch, 204 Cal. 599, 602, 269 P. 447; and People v. Davis, 97 Cal. 194, 31 P. 1109.)

People v. Corral, supra, 60 Cal.App.2d 66, 71, 140 P.2d 172, 175, also considers proof of specific intent on the part of the defendant, saying:

'Perhaps the mere fact that defendant committed a theft while inside the store is not sufficient to show his intent when he entered [Citation] but here there are other facts. The defendant had on, when he made his entry, a belt which could be so adjusted as to make possible the concealment of a suit within his trousers; and not only did he take and conceal by this means one suit from the store, but after disposing of it he returned there and took another suit and concealed it in the same manner. These and the other circumstances shown are ample to support a finding that he entered the store with intent to commit theft.'

The appellants, in stressing their claim that the necessary intent to prove burglary was not shown, rely on cases in which the circumstances of the alleged offenses made intent uncertain. (People v. Brown, 105 Cal. 66, 38 P. 518; In re Connell, 68 Cal.App.2d 360, 156 P.2d 483; and People v. Garrow, 130 Cal.App.2d 75, 278 P.2d 475.) In the Brown case, supra, there was evidence that defendant took a bicycle, that he was a 17 year old boy who did this to 'get even,' and that he never intended to keep it permanently. The Connell case, supra, determined that a conviction in Utah which did not charge the defendant with taking an automobile with intent to deprive the owner of title or possession did not fall within the classification of cases which could be utilized to justify the sentencing of a defendant as an habitual criminal. In the Garrow case, supra, it appeared that the defendant was a friend of the owner of a bar; that he worked for him, had driven his car, had slept in the same building and had eaten at the same table; he was entrusted with the keys to the Cadillac car of the complaining witness and the keys to the bar, and he had been shown a gun owned by a previous owner of the bar; when it was...