People v. Valdez

• Decision Date: 15 May 1962
• Docket Number: Cr. 1818
• Citation: 203 Cal.App.2d 559,21 Cal.Rptr. 764
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Anthony VALDEZ, Defendant and Appellant.

Page 764

21 Cal.Rptr. 764

203 Cal.App.2d 559

The PEOPLE, Plaintiff and Respondent, v. Richard Anthony VALDEZ, Defendant and Appellant.

Cr. 1818.

District Court of Appeal, Fourth District, California.

May 15, 1962.

[203 Cal.App.2d 560] Richard Anthony Valdez, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Webber, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

The defendant, appellant herein, was charged with burglary, i. e., a violation of Section 459 of the Penal Code, and with three prior felony convictions, two of which also were for burglary; entered a plea of not guilty; eventually admitted the prior convictions; was tried by a jury which found him guilty of burglary in the first degree; was sentenced to imprisonment in the state prison; and appeals from the judgment entered, contending that it should be reversed because:

1. The evidence is insufficient to establish the offense of burglary in the first degree;

2. Certain evidence to which he objected was the product of an illegal search and seizure 3. He was not permitted to inspect the notes of the district attorney taken while interviewing a witness;

4. The taking of testimony outside the presence of the jury in connection with the ruling upon the latter two matters was error; and

5. The interview with the witness in question was outside his presence and violated his right to be confronted by witnesses testifying against him.

Preliminarily it should be observed that in passing upon the sufficiency of the evidence in support of the verdict, and upon the propriety of the orders of the trial court overruling the defendant's objections to the admission of evidence and denying his motion for an inspection of the district attorney's notes, only that evidence, the interpretations thereof, and the inferences reasonably deducible therefrom which support the verdict, and the rulings in question, may be considered by this court. (Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 507, 289 P.2d 476, 47 A.L.R.2d 1349; People v. Daugherty, 40 Cal.2d 876, 886, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) The facts in this case will be stated accordingly.

The premises identified as 824 Tangiers Court, at Mission Beach, in San Diego, were entered unlawfully between 3:30 o'clock on the afternoon of March 9, 1961 and 8 o'clock the following morning; green louvered doors and a white cabinet were taken therefrom; and pry marks were left on the woodwork where the doors had been removed. A police officer investigating the burglary found particles of wood and screws, both with green paint thereon, in an adjoining alley and in the next yard, which was a part of the premises designated 820 and 820 1/2. The defendant lived in the apartment numbered 820 and a man named Evans lived in the apartment numbered 820 1/2. Eventually the officer contacted Evans and obtained permission to make a search of his premises. The officer testified that as he and Evans approached the latter's apartment the defendant came to the back door and asked what was happening; was informed that a search was being conducted for some property that had been stolen; was asked if he would give the officer permission to look through his premises; and indicated that 'he assented.' The officer recognized the defendant as a person who had been the subject of a previous burglary investigation which revealed that he had a prior criminal record. The search of the Evans premises was made first, and while there the officer heard sounds coming from the defendant's apartment such as would be made by the moving of a heavy object. The officer then went next door; asked the defendant if he might look around the house and was given permission to do so; went into the bedroom from which defendant had exited; pulled back the drapery over a closet which was located in the direction from which he had heard the sounds in question; and observed the stolen cabinet. The defendant was asked where the doors were; at first denied knowing anything about them; and then revealed that they were hidden under the bedclothes on the bed.

The defendant gave several conflicting statements as to the manner in which he came into possession of the stolen articles, among which were that he had purchased them, that he had found them, and that he took them, sometime after dark, under the belief that the owner, who had just moved out, did not want them.

On the day following his arrest the defendant was interviewed by another officer who asked for and received permission to obtain the stolen property from the subject premises; accompanied the officer thereto; and gave the latter permission to conduct a further search, in the course of which a tire iron was found. The evidence shows that this tire iron bore samples of paint similar to that with which the louvered doors had been painted.

It is uncontradicted that on March 9th at 3:30 p. m., the tenant who previously had occupied the premises thereafter burglarized, having moved therefrom about a week previously, relinquished the same to the owner; in the meantime the premises had been rented to a third person whose occupancy was not scheduled to commence until March 13th; and that the new tenant, preparatory to moving in, came to the premises on the morning of March 10th to unlock the door in order to enable certain public utilities to be connected, and discovered the burglary.

FIRST DEGREE BURGLARY

The evidence adequately establishes that the defendant was guilty of burglary. However, he contends that there is no evidence to show that the burglary in question was burglary in the first degree. The plaintiff claims that the subject premises were inhabited and that the defendant's entry therein during the night time made the offense of which he was found guilty burglary in the first degree, citing Section 460 of the Penal Code in support of this position. The defendant argues that the evidence does not establish that the premises in question were inhabited and, therefore, entry thereof in the night time did not constitute burglary in the first degree. (People v. Clinton, 70 Cal.App. 262, 233 P. 78; People v. Higbee, 70 Cal.App. 788, 233 P. 79.)

On the night of March 9, 1961 the dwelling in question was an unoccupied rental unit. No one was residing therein. Actual occupancy was not scheduled until March 13th. As defined in Penal Code, Section 460, a dwelling house is inhabited if a person resides therein even though it may be temporarily unoccupied. (People v. Gilbert, 188 Cal.App.2d 723, 726, 10 Cal.Rptr. 799; People v. Loggins, 132 Cal.App.2d 736, 738, 282 P.2d 961; People v. Allard, 99 Cal.App. 591, 592, 279 P. 182.) However, the dwelling house in the case at bar, at the time in question, was not the residence of a person who was temporarily absent. It was not the residence of the new tenant, of the landlord, or of the old tenant. It was not the dwelling house of either of them. For this reason, we conclude that it then was uninhabited and the verdict should have been limited to burglary in the second degree.

SEARCH AND SEIZURE

The officers who engaged in the searches to which objection was made, testified that their entry into and the subsequent search of the defendant's premises were conducted with his consent. He denies that consent was given. Nevertheless, in support of the order overruling his objections to the evidence obtained as a result of these searches, we must assume that the trial court accepted the testimony of the officers and rejected that of the defendant. (People v. Cunningham, 188 Cal.App.2d 606, 609, 10 Cal.Rptr. 604; People v. Neal, 181 Cal.App.2d 304, 308, 5 Cal.Rptr. 241.) A search based upon consent is not unlawful. (People v. Lane, 56 A.C. 786, 798, 16 Car.Rptr. 801, 366 P.2d 57; People v. Accardy, 184 Cal.App.2d 1, 3-4, 7 Cal.Rptr. 167.)

DISCOVERY

On rebuttal, the plaintiff called the former tenant of the burglarized premises as a witness, who testified, in substance, that on four occasions she had conversations with the defendant; in the first of these he asked her whether she owned the cabinet in question; on the second occasion he was in her house to show her how to operate a record player; on the third occasion she saw him the morning after the burglary and asked if he had heard any noises the night...