People v. Wheeler

• Decision Date: 06 July 1966
• Docket Number: Cr. 11313
• Citation: 52 Cal.Rptr. 508,243 Cal.App.2d 340
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Alvin WHEELER, Defendant and Appellant.

Page 508

52 Cal.Rptr. 508

243 Cal.App.2d 340

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Alvin WHEELER, Defendant and Appellant.

Cr. 11313.

District Court of Appeal, Second District Division 3, California.

July 6, 1966.

Lawrence J. Crow, Monterey Park, under appointment by District Court of Appeal, for appellant.

Thomas E. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

KAUS, Justice.

After a court trial defendant Wheeler was found guilty of a violation of Penal Code, section 464 (burglary with explosives). A motion for new trial was denied, as was probation.

The record shows that originally defendant was charged jointly with one Philip W. Steward. At the time of the trial in this matter the information against Steward had been set aside after a motion under Penal Code, section 995. He was, however, subject to a renewed effort on the part of the prosecution.

Although defendant argues strenuously that the evidence does not support the conviction, there is no merit whatever to the point. The following is an outline of the rather impressive case against him.

The premises burglarized were those of the Eastside Dairy Farms at 2929 North Durfee Road, situated in unincorporated county territory.

Martin Bosnyak the president of the dairy arrived in his office at about 3:50 a.m. on December 15, 1964. There were several tools lying around the office safe, the safe's knob was on the floor, there was a torchcut on a door of the safe and about $40.00 in 'petty change' was missing. Officer Cataldi who arrived at about 5:30 a.m. found that the safe was still warm to the touch at that time.

Lewis Montrone, a milk truck driver, was let into the premises of the dairy at about 3:40 a.m. As he approached the 'drivers' room' which is in the same building as the offices, he noticed that the lights were off, which was unusual. The office building is in about the center of the south portion of the premises, which are rectangular in shape and lie to the west of Durfee. Empty bottles are stored in the southwest corner. Montrone heard the bottles rattling and ran in their direction. He noticed that whoever had been there had got away. 'Instinct' then made him reverse his direction and head back east. A chain link fence with barbed wire on top runs along the southerly border of the dairy property and Montrone then observed Wheeler for several seconds on the other side of the chain link fence climbing over a picket fence. Wheeler was about fifteen feet away from him and facing sideways. Montrone yelled at him, Wheeler hesitated, stopped and looked at him. Montrone climbed over the chain link fence, but the person whom he had seen got away. ¹

There was much testimony throughout the trial concerning the lighting conditions at the time. It was conflicting and the court obviously accepted the version of the prosecution.

Montrone later picked defendant from a group of six or seven persons in a police lineup.

After the incident by the fence Montrone loaded his truck to start his deliveries. As he proceeded south on Durfee he noticed a green Chevrolet--later proved to be Steward's--a block to a block and a half from the dairy. He looked at it and returned to the dairy, arriving more or less simultaneously with the police. He had made a note of the license number and reported the matter to the police. He set out on his route again and when he passed the area where the Chevrolet had been parked, it was gone. He had talked to the officers about fifteen minutes.

Defendant was arrested the same morning at 7:00 a.m. at Steward's home in Covina by Deputies Cataldi and Connors. The Chevrolet was parked in front of the house. The next day, according to the deputies, defendant was advised of his right to counsel, of his right to remain silent and that anything that he might say could be used against him in court. ² Defendant denied that he had burglarized the dairy. Asked where he had spent the night in question he said 'that he had gone to the home of Shelly and stayed all night.' Shelly lived right behind Steward on Valencia in Covina. He said he had known Steward for three or four months. The officer then told defendant that they had talked to Shelly and that she had said that defendant did not arrive at Steward's place until the very early morning of December 15. Defendant said: 'Well, I guess that blows my story.' To the officer's suggestion that he try another story, defendant said he would, if his attorney told him to.

At the time of his arrest at Steward's residence defendant was fully clothed. Steward was arrested on the same occasion.

That, in essence, was the People's case when the prosecution rested. Not very strong, perhaps, but like good wine it improved as the trial dragged on through seven days. What helped it immeasurably was the nature of the defense and the opportunity it gave the prosecution on rebuttal. ³

The defense, which was obviously not believed by the court, amounted to this: in the evening of December 14 Steward appeared at defendant's home, which was very near the dairy, on foot. He had left his car on Durfee because it had 'missed.' Defendant and Steward spent the evening playing pool in Downey and Inglewood. They left Inglewood between 3:00 and 3:30 a.m. and proceeded to Steward's car on Durfee where they arrived between 4:00 and 4:30. Defendant raised the hood, checked the coil wire and found it to be in order. Steward started the car, which then was not missing as badly as before, but still missing. Defendant then followed Steward to his house in Covina, both stopping at a restaurant on the way. They arrived at Steward's house between 5:30 and 5:45 a.m., had a cup of coffee and at 7:00 a.m. the officers came to arrest them.

After this defense had been presented and to some extent corroborated, the People embarked on a course of destroying it by proving Steward's implication in the crime. The effect of this proof was, of course, twofold: first of all, to the extent that the prosecution proved that Steward had committed the burglary, either alone or with someone else, it impeached the alibi by proving that whatever defendant had been doing that night, he had not done it with Steward; but further, the court could accpet defendant's testimony to the effect that he had been with Steward, but disregard his assertion that at the time of the burglary they were somewhere between Inglewood and the dairy. Without going into detail, and certainly without intimating in the slightest that the evidence against Steward would have been sufficient to convict him, the following evidence was produced:

1. Deputy Sheriff Martin who had observed the 1954 Chevrolet at 12:45 a.m.--four hours after Steward supposedly left it on Durfee--felt the radiator at that time and it was 'quite warm' as if the vehicle had been running within the last half hour. ⁴

2. Steward had briefly been an employee of the dairy in 1962.

3. Steward's handwriting appeared on the same sheet of paper which contained a rather accurate drawing of the dairy property, on which the location of the safe was shown by a dollar sign and over which he had written, among other things: 'Eastside Dairy 30,000--40,000 at last of month.' The diagram also showed a car parked in front of the dairy. Although there was no evidence produced when and how this diagram was obtained by the prosecution, or when it was prepared by Steward, it is an obvious inference from the matters contained thereon that it was intended as a blueprint for a future burglary.

3. The morning after the burglary a fresh footprint was discovered in a strawberry patch in the general area where Montrone had observed defendant. A plaster cast of that footprint was compared with a shoe which Steward was wearing at the time of his arrest. According to a forensic chemist employed by the Los Angeles County Sheriff's Office, the 'shoepoint' (print?) depicted by the plaster cast was similar in size, shape, type and in a worn area on the outside part of the heel as the shoe itself. It was his opinion that the print could have been made by the shoe.

Defendant's first contention is that the evidence is insufficient to support the conviction. In support thereof he cites certain discrepancies in Montrone's testimony, differences between the description which that witness first gave to the police and physical characteristics of defendant and dissimilarities between the clothing of the person he observed and that worn by defendant at the time of his arrest. Obviously these matters were for the trier of facts to resolve. Reference is made to certain clues which might have led to a different culprit and which the police should have pursued. This is just another argument which should have been addressed--and undoubtedly was--to the trial court.

It is admitted that someone committed a burglary which falls within the definition of Penal Code, section 464. Defendant was seen fleeing from the scene of the crime shortly thereafter. He was arrested three hours later, fully dressed, at the home of a person whose car had been seen standing in the vicinity of the crime very shortly after the burglars were flushed and, when interrogated after a then sufficient caution, he gave a false explanation of his whereabouts. In addition there was evidence that the person with whom he claims to have been many miles away at the critical time planned the burglary in writing, had been an employee of the dairy in the past and, at the time of his arrest, wore a shoe which could have left a fresh footprint in a strawberry patch next to the burglarized premises. Admittedly this is all circumstantial evidence, but this is common in prosecutions such as this, since burglars rarely invite witnesses and the victim is a building, not a person. (People v. Jordan, 204 Cal.App.2d 782, 786, 22 Cal.Rptr. 731; People v. Colletta, 100 Cal.App.2d 1, 5,...