People v. Roy
| Decision Date | 16 May 1962 |
| Docket Number | Cr. 8038 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Zedrick Berry ROY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Leighton G. Long, Ventura, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Bruce A. Thompson, Dist. Atty. (Ventura), and Herbert L. Ashby, Deputy Dist. Atty., for plaintiff and respondent.
James Johnson and Zedrick Berry Roy, appellant, each were charged by an information as follows: Count I with burglary, on or about April 21, 1961, of the Casa de Conejo housing tract in Newbury Park; Count II with burglary, on or about the same date, of the Casa de Cavalier housing tract in Camarillo; Count III with grand theft of certain plumbing supplies, on or about the same date, from Nat Taylor & Sons Plumbing, Inc.; and in Count IV with the crime of conspiracy, together with one Walter Lee Jackson, to commit burglary and grand theft, on or about the same date. With respect to the count of conspiracy two overt acts were charged, the first by defendant Johnson who on or about that date did go to the Casa de Conejo tract in Newbury Park, and the second by appellant Roy who did go to the Casa de Cavalier tract in Camarillo. Appellant Roy was charged with three prior felony convictions which were admitted.
In a joint trial by jury both defendants were convicted on all counts. Motions for a new trial were denied. Defendant Johnson appealed, but pursuant to his own motion his appeal was dismissed on December 12, 1961. Appellant Roy appeals from the judgment and from the court's denial of his motion for a new trial.
Following is a brief resume of the facts. The foreman of a plumbing contractor in an unfinished housing tract known as the Casa de Conejo tract in Newbury Park had certain supplies stored in a garage at the tract. On the afternoon of April 20, 1961, this foreman noticed several Negroes in a white 1960 Lincoln automobile slowly driving through the area. Becoming suspicious he wrote down the license number of the car. It was later determined that the car was registered to defendant Johnson's wife. The foreman left work at approximately 4:20 p. m. At that time he set the burglar alarm on the front door of the garage in question and locked the doors.
At about 6:00 p. m. on Thursday, the 20th of April, Walter Lee Jackson rented a covered moving van, number 7107, from the California Truck Rental Co. in Los Angeles. He listed his address as 2639 Lantana Street in Compton. Later that evening a covered van and a red and white 1961 Mercury were parked at 97th Street and Main in Los Angeles near a card playing establishment called the 'Skin House.' Johnson, in the presence of appellant, had a conversation with Bud Cox, a card dealer at the Skin House, in which he asked to borrow two dollars, stating that he wanted to go to Ventura to attend to some business. Later, Johnson and Jackson were overheard at the Skin House asking appellant to go with them to Ventura. However, the three left the Skin House together.
At about 3:00 a. m. on the following morning, April 21, Ventura County Sheriff's detectives patrolling the Casa de Conejo housing tract area saw a moving van parked in a field adjacent to the tract. Upon investigation, one of the officers observed two shadowy figures running in a crouched position in the general direction of the truck. He called to them to stop and when they did not he fired several shots in the air. Defendant Johnson was apprehended but the other party was not found. Johnson said he didn't know where his partner went. He admitted riding in the van and described the driver of the vehicle to one of the officers.
The description was broadcast and at approximately 5:30 a. m. appellant, driving a red and white 1961 Mercury, was stopped on Highway 101 near the Conejo tract. The driver, appellant Roy, told the deputies he was on his way to work. He exhibited a temporary driver's license which listed his address as 2639 Lantana Street, Compton. After obtaining permission from Roy to search the vehicle, one of the officers found a key on a ring with a brass tag with the number 7107 on it in a pocket in a pair of trousers in the back seat of the car. Roy stated that this was the key to his tool box on the gunite rig on which he worked. There were also a number of pairs of gloves. When asked for the key to the trunk Roy stated he had borrowed the car from his girl friend and that she had only given him the ignition key; that he had no key to the trunk.
At the time of this interrogation of appellant defendant Johnson was seated in a police car parked ahead of the car being driven by Roy. Roy was asked if he knew Johnson. He said he did not. Roy was then released and the deputies returned to the tract. Shortly thereafter they received information that the van had been rented by Walter Lee Jackson, address 2639 Lantana Street, Compton, which had been the address given on Roy's temporary license. It was then noted that the number on the van, 7107, was the same as the number on the brass tag on the key which appellant Roy had said was the key to his tool box on the gunite rig. An all-points bulletin was put out for appellant.
In the meantime, a burglary of the Casa de Cavalier tract in Camarillo had been discovered. Boxes of plumbing supplies worth $200 had been taken together with certain hardware and trim worth over $1,000 and nine garbage disposal units worth $40 apiece.
At approximately 6:40 a. m. appellant was apprehended by the Oxnard police. Later that same morning the 1961 Mercury which Roy had been driving was again searched. This time the trunk was forced open and and hardware and garbage disposals stolen from the Casa de Cavalier tract were found in the trunk. It was also noted that the light buttons in the door well which operate the vehicle's interior lights were taped down so the leghts would not go on upon the doors being opened. An ignition key to the moving van was found in the Mercury's glove compartment.
It would serve little purpose to review in detail the alibis of defendant Johnson and appellant Roy and the conflicting statements made by them to the various officers who interviewed them in the course of the investigation. While Roy originally denied knowing Johnson, later he admitted that he knew of him. There was substantial evidence that they had known one another for some time and had been together on many occasions. Both Jackson and Roy had listed 2639 Lantana Street in Compton as their address. Notwithstanding this fact appellant Roy had denied knowing Jackson and stated he had only heard of him. It is a single-family residence and appellant subsequently admitted he did not live there.
Appellant testified in his own behalf. Defendant Johnson did not take the stand. Appellant stated the reason he was in Ventura County at the time of his arrest was that he was going to work for the Johnson-Weston Gunite Company; that he had worked for them on and off for the last seven or eight years and as recently as a month or six weeks prior to his arrest. An employee of the latter company in charge of payroll records testified she found no record that appellant had ever worked for the company. Roy had said the job he was to work on was in Ojai and the company employee stated it did not have a job going in the Ojai area on the date in question. Roy had said the key with the brass tag marked 7107 was the key to his tool box on the gunite rig, whereas the company employee testified that the rigs have numbers in series of three digits, not four, and that there was no rig with the number 7107. Appellant denied he was at either tract; however, a forensic chemist for the Los Angeles Sheriff's Department testified in his opinion that footprints found at the Casa de Cavalier tract which were preserved in a plaster cast were originally made by the right shoe belonging to Roy. Appellant admitted the shoe in question was his.
It is contended on appeal that the court erred in admitting certain evidence of other offenses and that the evidence is insufficient in regard to Counts I and IV of the information.
Testimony was admitted concerning seven separate and distinct incidents pertaining to other offenses not directly related to the particular offenses with which the defendants were charged but admitted by the court for the limited purposes of showing modus operandi and common plan and identity of the burglars who committed the crimes charged. Of these seven incidents three had no application to appellant. His counsel briefly cross-examined the witnesses who testified concerning those three incidents and in each instance they cleared Roy of any involvement therein. The court also repeatedly instructed the jury that evidence stricken as to one defendant was not to be considered as to that defendant.
Appellant asserts that evidence of these incidents, stricken as to him, might have been considered by the jury under the standard joint responsibility of coconspirators instruction given by the court; that once the jury found that a conspiracy existed and Roy was a member thereof 'the jury was then able to consider Roy responsible for any acts and declarations of Johnson.' The two defendants and Walter Lee Jackson were charged with conspiring on or about April 21, 1961, to commit burglary and grand theft. The overt acts charged were limited to Johnson going to one tract and Roy to the other.
The court instructed 1 the jury in its charge that no evidence of an act or declaration of an alleged conspirator shall be binding upon or considered against any other alleged conspirator unless and until, independent and without the aid of such evidence, a conspiracy as alleged has been proved to have been in existence at the time of...
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