People v. Romero

• Decision Date: 29 August 1966
• Docket Number: Cr. 5260
• Citation: 244 Cal.App.2d 495,53 Cal.Rptr. 260
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rafael Garcia ROMERO, also known as Rafael Garcia Paredez, Defendant and Appellant.

Page 260

53 Cal.Rptr. 260

244 Cal.App.2d 495

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rafael Garcia ROMERO, also known as Rafael Garcia Paredez, Defendant and Appellant.

Cr. 5260.

District Court of Appeal, First District,

Division 1, California.

Aug. 29, 1966.

Hearing Denied Oct. 26, 1966.

James Edward Cooke, San Francisco, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Lawrence R. Mansir, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from a judgment which sentenced him to imprisonment following his conviction by jury verdict of burglary in violation of section 459 of the Penal Code, which by stipulation, was fixed as of the second degree. He also was charged with and admitted four prior felony convictions.

On his appeal he asserts the following errors: (1) the receipt of evidence of 'prior convictions' in the prosecution's case in chief; (2) the receipt of evidence of a blood test to prove that defendant was not intoxicated at the time of the alleged burglary; (3) comment by the prosecution on the defendant's failure to testify; and (4) failure to properly arraign the defendant for judgment.

An examination of the record reflects that evidence of other offenses was properly received for the light it shed on defendant's intent, method of operation, knowledge and plan; and that there was no prejudicial error in the other particulars advanced by defendant.

The facts are brief and not in dispute. On March 7, 1965, at 1 o'clock in the morning, officers of the San Jose Police Department apprehended the defendant in Clancy's Restaurant and arrested him for the crime of burglary. The officers had responded to a radio call that a burglary was in progress and upon arriving at the scene found the defendant lying on the floor in the pantry. A screwdriver was found underneath a water heater located two feet from where defendant had been lying. The area had been cleaned and mopped the day before, and no screwdriver was found there at that time. When the owner locked up his premises, no one was inside.

The evidence tended to show that the defendant had made entrance into the restaurant by prying open the locked window in the women's restroom. Pry marks located on both the women's and men's restroom windows were consistent with marks made by the screwdriver. There were pry marks on the cigarette machine. When the owner locked up there had been no pry marks on the cigarette machine or on the windows. The defendant's car was found parked in the neighborhood.

At the time defendant was arrested he claimed he did not remember how he got into the restaurant and because he gave unresponsive answers to the officers' question, they believed he was feigning drunkenness. Therefore, they obtained a blood alcohol test when they arrived at the police station.

The defendant did not testify, and his entry of the premises was not contested. It was contended on his behalf that he was intoxicated and did not have the mental capacity to form the specific intent necessary for burglary. The jury was requested to find him guilty of no more than a trespass. To this end the defendant produced the testimony of his wife; of his wife's sister; and of the wife of his wife's brother to show his activities and state of intoxication on the day preceding his arrest and his general reaction to the consumption of alcoholic beverages.

Evidence of prior crimes:

The prosecutor, out of the presence of the jury, offered to prove that the defendant was involved in three prior burglaries which were committed under circumstances similar to those under which he was apprehended in the instant case. The defendant's objection was overruled.

Testimony was then adduced that on April 15, 1963 defendant was found in the premises of a vending machine company; that the outer door of the premises had been pried open leaving marks on the door frame of which a photograph was introduced below; that at the time of defendant's apprehension he was working on an inner divided window with a screwdriver which he threw on the floor; that pry marks, of which another photograph was also produced, were found on an inner door through which entry had been effected to an office where a cash box in a pried open desk drawer had been rifled; and that defendant's car was found about one block away.

Further testimony showed that on August 28, 1958 a deputy sheriff responding to investigate a reported market burglary noticed a car, which subsequently proved to be the defendant's, in the vicinity of the scene of the offense; that he found one-quarter inch pry marks on the market door which had been forced open; that the deputy was advised of the nature of the property missing; that he then found that the car which he had observed was gone; and that two hours later he stopped the same car, arrested defendant who was driving it, and found the missing articles and a screwdriver in the car.

An admitted accomplice of defendant, who had served time for the offense, testified that in October 1960 he and the defendant entered the same premises in which defendant was apprehended in this case through the rest room window after prying it open; that the defendant pried open the cigarette machine and they took the money and the cigarettes; that they left in the defendant's car which was parked about a block away; and that they were apprehended the same night with the loot in their possession.

The prosecutor called a probation officer to testify in regard to a conversation he had with the defendant in reference to the 1963 offense. When the officer stated that the conversation ensued after the defendant had been found guilty following a jury trial, the court on motion of the defendant struck the answer and admonished the jury to disregard the testimony but denied defendant's motion for a mistrial. Following an unreported conference out of the presence of the jury the prosecutor abandoned his attempt to bring out admissions or declarations which the defendant had allegedly made at that time. (Cf. People v. Kelley (1966) 240 A.C.A. 593, 600--603 (mod. 240 A.C.A. 890), 49 Cal.Rptr. 751.)

The court properly instructed the jury that the foregoing evidence was received for a limited purpose only. ¹

Defendant relies upon the prohibition against mentioning prior felonies when the allegations by which they are charged have been admitted. 'The law forbids the prosecutor or the clerk to make reference to the alleged prior felony unless the defendant denies it and the prosecutor is required to prove it by proper evidence (Pen.Code, §§ 1025, 1093). The law also forbids the prosecutor even to ask a defense witness whether he has been convicted of a felony unless the question is asked in good faith with the expectation of proving that there was such a conviction.' (People v. Fields (1965) 235 Cal.App.2d 1, 5, 44 Cal.Rptr. 842, 845, fn. omitted.)

Defendant's argument is answered by People v. Grimes (1952) 113 Cal.App.2d 365, 248 P.2d 130, wherein it is stated: 'At the trial defendant admitted the prior convictions of felonies as charged, and did not testify. The prosecution offered evidence of similar offenses to that charged, under the claim that such offenses were similar in their commission, and the Modus operandi was so much like the method used in the instant case as to be admissible under the general principle enunciated by our Supreme Court in People v. Peete, 28 Cal.2d 306, 169 P.2d 924, and cited cases. The court permitted the proffered evidence, under an instruction limiting the consideration of the evidence by the jury for the purpose only of showing the identity of the person who committed the alleged crime, if it was committed; that the defendant entertained the necessary intent; and that there existed in the mind of the defendant a plan, scheme, system or design, for the commission of the offense, and not to prove other and distinct offenses. * * * It is defendant's contention that the prior conviction of burglary on August 28, 1943, as charged in the information and admitted by defendant, should not have been admitted in evidence since defendant admitted this charged prior conviction. He cites in support of this argument section 1025 of the Penal Code which reads in part that in case the defendant answers 'that he has suffered a previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.' There is no merit to this argument if the facts of the previous offense come within the exception hereinafter noted. People v. Peete, supra, 28 Cal.2d at page 319, 169 P.2d at page 932.' (113 Cal.App.2d at pp. 368--369, 248 P.2d at p. 131, and see People v. Henderson (1963) 60 Cal.2d 482, 494--495, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Peete (1946) 28 Cal.2d 306, 314--320, 169 P.2d 924; People v. Shapiro (1960) 180 Cal.App.2d 714, 718--719, 4 Cal.Rptr. 788; and People v. Kerns (1955) 134 Cal.App.2d 110, 114--115, 285 P.2d 81; and cf. People v. Baskett (1965) 237 Cal.App.2d 712, 715--718, 47 Cal.Rptr. 274.)

There was no error in receiving the the evidence in question, and the court correctly instructed the jury in relation thereto.

The court also instructed the jury that a witness may be impeached by proof that he has been convicted of a felony. This instruction could not be applied to defendant because he did not take the stand. It was necessary because his accomplice in the 1958 incident was so impeached.

The blood test:

Testimony was elicited from the officers without objection that blood was withdrawn from the defendant for a blood test in order to establish his state of sobriety because he seemingly was faking intoxication. The envelope in which the sample had been enclosed was marked for identification.

A criminologist employed by the county testified, also without objection,...