People v. Stinson

• Decision Date: 26 March 1963
• Docket Number: Cr. 3356
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent v. Leslie Edward STINSON et al., Defendants and Appellants.

Page 695

29 Cal.Rptr. 695

214 Cal.App.2d 476

The PEOPLE of the State of California, Plaintiff and Respondent v. Leslie Edward STINSON et al., Defendants and Appellants.

Cr. 3356.

District Court of Appeal, Third District, California.

March 26, 1963.

[214 Cal.App.2d 477] John Bullington, Sacramento, under appointment by Third Dist. Court of Appeal, for appellant Stinson.

Elmer Jennings, Red Bluff, under appointment by Third Dist. Court Appeal, for appellant, DeMello.

Stanley Mosk, Atty. Gen., by Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Defendants Stinson and DeMello were separately charged with second degree burglary (Pen.Code, sec. 459) in that they entered the Crystal Motel at Red Bluff with the intent to commit theft. Their cases were consolidated for trial, which was held before a jury. Both were convicted and both appeal. DeMello also appeals from an order denying new trial. The order is not appealable but may be reviewed upon the appeal from the judgment. (Pen.Code, sec. 1237.) Each defendant claims a single, separate ground for reversal of judgment.

Defendants met at a bar in Sacramento on the night of February 5, 1962. They drank. They left the bar, entered Stinson's automobile and drove in the direction of Redding, ostensibly to look for work. Stinson drove as far as Marysville, then, because Stinson had been drinking, DeMello took the wheel. At 1:45 a. m. the car was observed by the Red Bluff police as it traveled through a residential area of that city. The police followed the car and stopped it. DeMello was driving. He had an expired operator's license. Asking and receiving permission to search the vehicle, the police found a television set and radio on the floor Earl Stearns was manager of the Crystal Motel at Red Bluff. At 7:00 o'clock on the morning of February 6 he discovered that the door of Room 119 of the motel was unlocked. The room had not been rented since February 4. Missing were a television set, radio and one of two twin bedspeads. These articles were later identified as those in defendants' possession. The bedspread in the car, indeed, was the mate of that in the motel room. There was no sign that physical force or tools had been used to gain entry to Room 119.

of the rear compartment, both covered with a bedspread. Also in the car were numerous tools. Stinson was a sheet metal worker by occupation, DeMello a heavy equipment operator.

At their trial both defendants testified that they had already been in Redding and were on their way back from that city when arrested; that DeMello was driving while Stinson slept; that while they were in Redding DeMello bought the television set, radio and bedspread from a person they encountered; that they then drove south to Red Bluff. DeMello testified that the seller was an 'Indian fellow' whom they had met outside a Redding bar. He produced a paper which he said was a receipt signed by the seller.

APPEAL OF STINSON

At the time the car was stopped by the Red Bluff police, Stinson said that the television set was his. Later, while in custody, both Stinson and DeMello gave statements to the officers, each out of the other's presence. In one statement Stinson told Police Lieutenant Schoelen that he was asleep when he and DeMello arrived in Red Bluff and didn't know how the property got into the automobile. In another statement (admitted only against Stinson and not against DeMello) he told Lieutenant Schoelen and Special Agent Lazier that he and DeMello had parked outside the Crystal Motel that night; that DeMello had gone behind the motel cabins and emerged, carrying some articles under a blanket and placing them in the rear of the car. Special Agent Lazier testified that Stinson had told him that he and DeMello were on their way to Redding in order to burglarize a supermarket and steal the safe; that they had tools with them to break open the safe. Lazier testified that these tools were in the room as Stinson was making the statement. Over defense objection the tools were admitted in evidence. Counsel for Stinson claims prejudicial error, for there was no evidence of forced entry into the motel room by means of tools or other instruments. The People support admissibility on the theory that the tools were referred to in the conversation between Stinson and Lazier and explain and corroborate the latter's testimony.

Assuming, without deciding, that the tools should not have been admitted in evidence, the error, if any, does not require reversal. Defendant makes no claim that the guilty verdict lacked evidentiary support. Our own examination of the record discloses a tight structure of competent circumstantial evidence which amply warranted the jury in concluding that Stinson had participated in the crime. Notwithstanding the asserted error, no miscarriage of justice occurred. (Calif.Const., art. VI, sec. 4 1/2.)

APPEAL OF DeMELLO

The information charged DeMello with a prior burglary conviction, which he admitted. Under these circumstances the law prohibited any allusion to the prior conviction during the course of trial. (Pen.Code, sec. 1025.)

Lieutenant Harold Schoelen of the Red Bluff police department was on the witness stand. Counsel for DeMello was cross-examining him in order to fix the time of some of his interviews with DeMello. The following colloquy occurred: 'Q. How long did this question and answer session go on? A. Oh, it may have went for two hours. Q. That would be about 11:00 or 11:30? A. Closer to 11:so [sic] because his parole officer came down and talked to him.'

Defendant's counsel immediately stated that the answer was not responsive, assigned it as misconduct and requested a mistrial. The court ordered the answer stricken, directed the jury to disregard it, and reserved a ruling on the mistrial motion. When the prosecution rested, defense counsel renewed the motion outside the jury's presence. He pointed out that if the motion were denied he would call DeMello to testify in his own behalf. The court denied the motion but stated that if defendant were convicted, the matter would be considered in the course of a motion for new trial. Trial having resumed before the jury, DeMello was then called to the stand by his own counsel. On direct examination he admitted two prior felony convictions and that he was then on parole. Cross-examination elicited the fact that these convictions were for robbery and burglary.

Following the guilty verdict counsel again moved for a mistrial. At the appropriate time he moved for a new trial. Both motions were premised on the improper allusion to DeMello's status as a parolee. Both motions were denied. The trial court expressed views indicative of the belief that the circumstantial evidence of guilt was convincing, that the error was not prejudicial and that, in its view, defendant could not possibly have been successful without taking the witness stand himself. Prejudicial misconduct of the police officer is the sole ground urged for reversal of DeMello's conviction.

As we have noted, Penal Code, section 1025 prohibits allusion to prior felony convictions where these stand admitted. Nevertheless, these felony convictions may be shown as a means of impeaching the credibility of a defendant who takes the witness stand in his own defense. (People v. Beal, 108 Cal.App.2d 200, 205, 239 P.2d 84; People v. Chapman, 81 Cal.App.2d 857, 863, 185 P.2d 424.) A criminal defendant is privileged not to testify at all, thus putting the prosecution to its proof. (Calif.Const., art. I, sec. 13; Pen.Code, secs. 688, 1323, 1323.5.) Except where an earlier crime is relevant to proof of the offense on trial, section 1025 permits a defendant to exercise the privilege of not testifying with full confidence that he is thus preventing any mention of his prior criminal record. (Cf. People v. Domenico, 121 Cal.App.2d 124, 263 P.2d 122.) This combination of legal elements is a deliberate creation of the law. Its tactical value to defendants is heightened by recognition of a possible tendency on the part of some jurors to convict a defendant not on proof that he committed the offense but because he has a criminal past. Its value is diminished by realization that his failure to take the stand will weigh against him. (People v. Adamson, 27 Cal.2d 478, 488, 165 P.2d 3.) A defendant is free to balance the value of his own testimony against the possible disadvantage of jury knowledge of his criminal record.

Lieutenant Schoelen's reference to DeMello's parole officer completely destroyed the tactical choice which the law of this state, in all deliberation, had conferred on defendant DeMello. The transcript shows that before the trial commenced the district attorney and defense counsel had discussed the exclusion of all reference to prior convictions. It also demonstrates that Lieutenant Schoelen had been instructed against such disclosure. In direct examination of his own witnesses, including Lieutenant Schoelen, the district attorney had meticulously refrained from any such reference. It was on cross-examination, when he was...