People v. Staples

• Decision Date: 27 March 1970
• Docket Number: Cr. 15693
• Citation: 85 Cal.Rptr. 589,6 Cal.App.3d 61
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edmund Beauclerc STAPLES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 589

85 Cal.Rptr. 589

6 Cal.App.3d 61

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edmund Beauclerc STAPLES, Defendant and Appellant.

Cr. 15693.

Court of Appeal, Second District, Division 5, California.

March 27, 1970.

Hearing Denied May 21, 1970.

Lawrence William Steinberg, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

Defendant was charged in an information with attempted burglary (Pen.Code, §§ 664, 459). Trial by jury was waived, and the matter submitted on the testimony contained in the transcript of the preliminary hearing together with exhibits. Defendant was found guilty. Proceedings were suspended before pronouncement of sentence, and an order was made granting defendant probation. The appeal is from the order which is deemed a final judgment. (Pen.Code, § 1237.)

I. THE FACTS

In Octover 1967, while his wife was away on a trip, defendant, a mathematician, under an assumed name, rented an office on the second floor of a building in Hollywood which was over the mezzanine of a bank. Directly below the mezzanine was the vault of the bank. Defendant was aware of the layout of the building, specifically of the relation of the office he rented to the bank vault. Defendant paid rent for the period from October 23 to November 23. The landlord had 10 days before commencement of the rental period within which to finish some interior repairs and painting. During this prerental period defendant brought into the office certain equipment. This included drilling tools, two acetylene gas tanks, a blow torch, a blanket, and a linoleum rug. The landlord observed these items when he came in from time to time to see how the repair work was progressing. Defendant learned from a custodian that no one was in the building on Saturdays. On Saturday, October 14, defendant drilled two groups of holes into the floor of the office above the mezzanine room. He stopped drilling before the holes went through the floor. He came back to the office several times thinking he might slowly drill down, covering the holes with the lineoleum rug. ¹ At some point in time he installed a hasp lock on a closet, and planned to, or did, place his tools in it. However, he left the closet keys on the premises. Around the end of November, apparently after November 23, the landlord notified the police and turned the tools and equipment over to them. Defendant did not pay any more rent. It is not clear when he last entered the office, but it could have been after November 23, and even after the landlord had removed the equipment. On February 22, 1968, the police arrested defendant. After receiving advice as to his constitutional rights, defendant voluntarily made an oral statement which he reduced to writing.

Among other things which defendant wrote down were these:

'Saturday, the 14th * * * I drilled some small holes in the floor of the room. Because of tiredness, fear, and the implications of what I was doing, I stopped and went to sleep.

'At this point I think my motives began to change. The actutal (sic) commencement of my plan made me begin to realize that even if I were to succeed a fugitive life of living off of stolen money would not give the enjoyment of the life of a mathematician however humble a job I might have.

'I still had not given up my plan however. I felt I had made a certain investment of time, money, effort and a certain pschological (sic) commitment to the concept.

'I came back several times thinking I might store the tools in the closet and slowly drill down (covering the hole with a rug of linoleum square. As time went on (after two weeks or so). My wife came back and my life as bank robber seemed more and more absurd.'

II. DISCUSSION OF DEFENDANT'S CONTENTIONS

Defendant's position in this appeal is that, as a matter of law, there was insufficient evidence upon which to convict him of a criminal attempt under Penal Code section 664. Defendant claims that his actions were all preparatory in nature and never reached a stage of advancement in relation to the substantive crime which he concededly intended to commit (burglary of the bank vault) so that criminal responsibility might attach.

In order for the prosecution to prove that defendant committed an attempt to burglarize as proscribed by Penal Code section 664, it was required to establish that he had the specific intent to commit a burglary of the bank and that his acts toward that goal went beyond mere preparation. (People v. Buffum, 40 Cal.2d 709, 718, 252 P.2d 321; People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308; People v. Anderson, 1 Cal.2d 687, 689--690, 37 P.2d 67; People v. Gibson, 94 Cal.App.2d 468, 470, 210 P.2d 747.)

The required specific intent was clearly established in the instant case. Defendant admitted in his written confession that he rented the office fully intending to burglarize the bank, that he brought in tools and equipment to accomplish this purpose, and that he began drilling into the floor with the intent of making an entry into the bank.

The question of whether defendant's conduct went beyond 'mere preparation' raises some provocative problems. The briefs and the oral argument of counsel in this case point up a degree of ambiguity and uncertainty that permeates the law of attempts in this state. Each side has cited us to different so-called 'test' to determine whether this defendant's conduct went beyond the preparatory stage. Predictably each respective test in the eyes of its proponents yielded an opposite result.

Defendant relies heavily on the following language: 'Preparation alone is not enough (to convict for an attempt), there must be some appreciable fragment of the crime committed, It must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.' (Italics added.) (People v. Buffum, Supra, 40 Cal.2d 709, 718, 256 P.2d 317, 321.) Defendant argues that while the facts show that he did do a series of acts directed at the commission of a burglary--renting the office, bringing in elaborate equipment and actually starting drilling--the facts do not show that he was interrupted by any outside circumstances. Without such interruption and a voluntary desistence on his part, defendant concludes that under the above stated test, he has not legally committed an attempt. The attorney general has replied that even if the above test is appropriate, the trial judge, obviously drawing reasonable inferences, found that defendant was interrupted by outside circumstances--the landlord's acts of discovering the burglary equipment, resuming control over the premises, and calling the police.

However, the attorney general suggests that another test, as set out in People v. Anderson, Supra, 1 Cal.2d 687, 690, 37 P.2d 67, 68, is more appropriate: '* * * Whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.' (Note absence of reference to interruption.) The People argue that defendant's felonious intent was clearly set out in his written confession; that the proven overt acts in furtherance of the design, although only needing to be slight, were, in fact, substantial; that this combination warrants the affirmance of the attempt conviction.

We suggest that the confusion in this area is a result of the broad statutory language of section 664, which reads in part: 'Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable * * *.' This is a very general proscription against all attempts not specifically made a crime (see e.g., Pen.Code, § 217). The statute does not differentiate between the various types of attempts which may be considered culpable. Reference must be made to case law in order to determine precisely what conduct constitutes an attempt. However, the statute does point out by the words 'fails,' 'prevented,' and 'intercepted,' those Conditions which separate an attempt from the substantive crime.

An examination of the decisional law reveals At least two general categories of attempts, both of which have been held to fall within the ambit of the statute.

In the first category are those situations where the actor does all acts necessary (including the last proximate act) to commit the substantive crime, but nonetheless he somehow is unsuccessful. This lack of success is either a 'failure' or a 'prevention' brought about because of some extraneous circumstance, e.g., a malfunction of equipment, a miscalculation of operations by the actor or a situation wherein circumstances were at variance with what the actor believed them to be. ² Certain convictions for attempted murder illustrate the first category. Some turn on situations wherein the actor fires a weapon at a person but misses (People v. Glick, 1107 Cal.App.2d 78, 79, 236 P.2d 586); takes aim at an intended victim and pulls the trigger, but the firing mechanism malfunctions (People v. Van Buskirk, 113 Cal.App.2d 789, 793, 249 P.2d 49); plants on an aircraft a homemade bomb which sputters but does not explode (People v. Grant, 105 Cal.App.2d 347, 356--357, 233 P.2d 660). Another first category example is highlighted in People v. Fulton, 188 Cal.App.2d 105, 10 Cal.Rptr. 319. The factual setting and legal reasoning in Fulton is well characterized by Justice Kingsley in People v. Orndorff, 261 Cal.App.2d 212, 215, 67 Cal.Rptr. 824, 826: 'Fulton * * * involved an alleged Jamaica Switch, practiced on two alleged intended victims. The schemes failed, in one instance because a bank officer told the intended victim that it was a bunco scheme * * *. (T)he court unanimously held that * * * (this) instance was a punishable attempt * * *. All three...