People v. Statler

• Decision Date: 06 November 1985
• Citation: 219 Cal.Rptr. 713,174 Cal.App.3d 46
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marvin Leol STATLER et al., Defendants and Appellants. Crim. F002934.

Page 713

219 Cal.Rptr. 713

174 Cal.App.3d 46

The PEOPLE, Plaintiff and Respondent, v. Marvin Leol STATLER et al., Defendants and Appellants.

Crim. F002934.

Court of Appeal, Fifth District, California.

Nov. 6, 1985.

Certified for Partial Publication. ^*

Review Denied Feb. 14, 1986.

Howard M. Hoffman, Sacramento, and David K. Kuwahara, Oakland, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., James T. McNally, Supervising Deputy Atty. Gen., Nancy Sweet and Thomas Y. Shigemoto, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BEST, Associate Justice.

Following trial by jury, defendants were convicted of burglary. (Pen.Code, § 459.) Following discussion, we will reject the contentions on appeal of each defendant in turn and affirm the judgments.

STATEMENT OF FACTS

Defendants were convicted of burglarizing Juanita Petty's residence in Bakersfield. The prosecution's case consisted of the following facts: Aneta Adams testified that she first saw defendant Statler and defendant Brown driving through her neighborhood on April 18, 1983, at 11:30 in the morning. The two men were in a maroon car and were driving very slowly throughout the neighborhood looking at all of the houses. Mrs. Adams was suspicious of the two men because neither lived in the neighborhood and because they were driving throughout the neighborhood so slowly. Mrs. Adams was in her car on the way to the market, so she decided to follow the men. At one point when the defendants realized that she was watching them, they turned their heads and covered their faces with their hands. Mrs. Adams wrote down the license plate number of the car, which was 989 MBP. Later, she observed that defendant Brown had gotten out of the car and was walking toward Juanita Petty's residence, which is located on Misty Court. Mrs. Adams last saw defendant Brown standing in front of Juanita Petty's residence. Mrs. Adams positively identified both defendants Statler and Brown as the two men who were in the maroon car.

Mrs. Tate, who lives directly across the street from the Petty residence, testified that on April 18 at approximately 11:30 in the morning, she observed defendant Brown approach the door to the Petty residence and knock several times. Brown was wearing a black baseball cap. She then saw defendant Brown disappear behind some bushes in front of the Petty residence. She observed defendant raise his head, scan the neighborhood and jump over the fence. She continued to watch the house, and eventually, she saw the defendant standing in an upstairs bedroom. While she was watching the house, the maroon car drove back through the court once. Mrs. Tate then called her neighbor Phil Harrington and informed him of the suspected burglary.

Mr. Harrington testified that he went to Juanita Petty's residence but did not observe any persons in the yard at that time. However, back at his own home he observed defendant Statler drive through the court in the maroon car and glance furtively at the Petty residence. Mr. Harrington then got into his own car and followed the maroon car as it drove slowly through the neighborhood.

Police Officer Jack Smith was the first to respond to the burglary call on Misty Court. As he drove into the court, he saw a man standing in front of the Petty residence. A branch of a tree was blocking his view, so he could see the person only from the waist down. As soon as Officer Smith got out of his car and walked toward the person, the person bolted. Officer Smith lost sight of the person, but he could hear the person moving quickly throughout the backyards of the houses on the court. This person apparently was jumping fences and running through bushes to make his escape. Officer Smith managed to confront the person on a street nearby. He saw the person step out of some foliage into the front yard of a house and noted that the person was wearing jeans and a black baseball cap. He ordered the person to halt; however, the person ran back into the bushes. By this time, other units had been called into the area, and the defendant was apprehended shortly thereafter by Officer Scott on a street several blocks away from Misty Court. By the time Officer Scott approached defendant, defendant was wearing no cap and no shirt. Defendant told Officer Scott he was in the area looking for a job. Dan Quick, the owner of the house in front of which defendant was standing, stated the defendant was not employed by him nor was he looking for additional employees. Defendant's hat, shirt and glove were recovered from the bushes in front of Dan Quick's house.

After defendant was apprehended, Officer Smith returned to the Petty residence. In the backyard, Officer Smith observed that the back door leading into the garage was open as well as the door leading from the garage to the kitchen. A piece of wood on the back kitchen door had been chipped away at the lock. A pillowcase full of Mrs. Petty's costume jewelry had been taken from her bedroom and left on the grass in the backyard. Police Officer Hillis arrested defendant Statler as Statler drove around the neighborhood.

Defendant Brown's theory of defense was that Kathy Mixon, Juanita Petty's daughter, staged the burglary to have defendant arrested. Defendant had dated Kathy Mixon several months prior to the burglary. He testified that Kathy Mixon was a drug user and that he had threatened to reveal her drug use to her mother. He testified she told him she would "get him" if he told her mother. Defendant then had moved out of the area and had not dated Ms. Mixon for several months. He testified that he happened to be in town on the day of the burglary to go to his union, so he decided to call Ms. Mixon. Ms. Mixon purportedly invited him to come over to her house that day. When defendant got into the neighborhood, he could not remember exactly where Ms. Mixon lived, so he and defendant Statler had to drive around the neighborhood very slowly to look for the house. As soon as defendant Brown spotted the correct house, he told defendant Statler to take the car and go get some gas. After Statler left, he walked to the front of the house and knocked on the door, but nobody answered. He then testified he heard a stereo in the backyard and decided to go to the back to see if Kathy Mixon was sunbathing by the pool. When he jumped over the fence, he noted that a pillowcase full of jewelry had been spilled on the grass. He then determined that he had been set up. He jumped back over the fence, and when he saw the policeman walking toward the house he panicked and ran. Defendant claimed to have discarded his shirt and cap because he was sweating.

Defendant Statler's testimony roughly parallels that of defendant Brown. Defendant Statler claimed that defendant Brown asked him to accompany Brown to the union hall that morning. The two men drove to the union hall and then had breakfast. Defendant Brown then told defendant Statler that he wished to see Kathy Mixon so the two men drove to her neighborhood and had to search the neighborhood for the correct house when defendant Brown could not remember exactly which house belonged to Ms. Mixon. When defendant Brown recognized the house, he got out of the car, gave defendant Statler some gas money and told him to take the car to get gas. Defendant Statler then went to get gas and when he came back, he could not remember exactly where the house was or the area in which he had dropped off defendant Brown, so he was driving around the neighborhood looking for the correct area when the police arrested him.

In rebuttal, Kathy Mixon testified that she never received a phone call from defendant Brown the day before the burglary, nor did she ever invite him to her mother's house on the morning of the burglary. She denied trying to set up defendant Brown and having threatened to get even with defendant Brown. Officer Hillis testified in rebuttal to defendant Statler's testimony. In response to the burglary dispatch, Officer Hillis made a stop of a maroon car that was being driven by defendant Statler. Officer Hillis asked Statler where his friend was, to which defendant Statler replied he did not have a friend. Officer Hillis then asked defendant Statler what he was doing in the area. In answer to this question, defendant Statler said that he was looking for the freeway and had been looking for the freeway for the last 20 minutes.

DISCUSSION

I

Did the trial court prejudicially err in admitting defendant Brown's prior felony conviction for impeachment purposes?

At the close of the People's case, the trial court heard a motion by defendant Brown to exclude his 1980 felony conviction of burglary for impeachment purposes. The trial court ruled that, pursuant to Proposition 8, the prior conviction would be admissible for impeachment purposes. The trial court further noted that if People v. Beagle ¹ and its progeny represented the current state of the law, it would exclude the use of the burglary conviction as being substantially similar to the present crime charged against defendant. Despite the trial court's ruling, defendant testified at trial. For tactical purposes, defendant's trial counsel questioned him about the prior burglary conviction on direct examination. No mention of the prior was made by the prosecutor on cross-examination. Defendant contends that, under People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the denial of his motion to exclude prior felony convictions constituted prejudicial error.

The California Supreme Court in People v. Castro interpreted the provision of Proposition 8 that allows for the admission of any felony conviction for impeachment purposes in a criminal proceeding. (See Cal. Const., art. I, § 28, subd. (f).) The Supreme Court's conclusion is succinctly stated as follows:

"We shall hold that--always subject to the trial court's discretion under section...