People v. Williams

• Decision Date: 10 April 1968
• Docket Number: Cr. 14049
• Citation: 67 Cal.Rptr. 442,260 Cal.App.2d 868
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Keith WILLIAMS, Defendant and Appellant.

Page 442

67 Cal.Rptr. 442

260 Cal.App.2d 868

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Keith WILLIAMS, Defendant and Appellant.

Cr. 14049.

Court of Appeal, Second District, Division 1, California.

April 10, 1968.

Rehearing Denied May 9, 1968.

Mitchell J. Grossman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Michael H. Fabian, Deputy Atty. Gen., for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of burglary in the second degree.

In an information filed in Los Angeles on March 3, 1967, defendant was charged with codefendant Morrison with burglarizing the apartment of Will Rainey on February 3, 1967, and in count 2 with receiving stolen property, a stereo- television set, on February 4, 1967. It was further charged that Williams previously had been convicted of the crime of violating the provisions of section 459, Penal Code, on or about July 6, 1965. Morrison pleaded Nolo contendere to the burglary charge (count 1). Williams waived a jury trial and the cause was submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing, all exhibits to be received into evidence subject to the rulings of the court. At the further hearing Morrison testified for the prosecution. Williams was found guilty of burglary in the second degree and not guilty of receiving stolen property. The charge of the prior conviction was found to be true. Williams was sentenced to the state prison, the term to run consecutively to a sentence in superior court case numbered 302,765. The court said at the time of sentence, 'His record would indicated that he is a confirmed burglar. He has problems but they are problems of his own choice. This is a very, very poor record.' and 'He got a break on the degree. But with this record, I mean we have a man that apparently is a confirmed burglar and apparently all we can do is to protect society. He will eventually get out and if this record indicates anything, he will go back to the same practice.' A timely notice of appeal was filed.

A re sume of some of the facts is as follows: Defendant on the evening of February 3, 1967, met codefendant John Carlos Morrison at Morrison's girl-friend's apartment. They left immediately and together plotted the burglary of an apartment on South Arlington in Los Angeles, intending to use a key which had come into Williams' possession. Later in the evening they visited the apartment but found that because the door had a double lock they could not use the key so instead they removed a screen and entered the first floor apartment through one of the windows.

Once inside the apartment, Williams and Morrison decided to take the combination stereo-television set and together they removed it to the alley. Although it was by then early in the morning of February 4, 1967, Morrison determined to get a friend to assist them. He went to the residence of Patrock Joseph Kline and awakened Kline to request the use of his car. Although Kline was reluctant to participate, he finally agreed and returned with Morrison who directed him to park in an adjacent alley. Morrison left the car and returned with appellant carrying the television set which they placed in the trunk of the car.

The trunk of the car would not close over the television set, but the trio drove the car out of the alley with the trunk partly open. When they reached Sixth and Washington at 1:05 a.m. which is but a short distance from the address where the burglary occurred, they were stopped and questioned by Officer Keegan of the Los Angeles Police Department. In response to Officer Keegan's questions, Morrison stated that the television set belonged to him, but the officer nonetheless placed all three men under arrest.

Will Rainey, the victim of the burglary, left his apartment on February 3, 1967, at about 11:30 p.m. When he returned at 2:30 a.m., February 5, 1967, he found the bedroom screen pulled off and his stereo-television combination set missing. His name was imprinted on the back of television set found in appellant's possession, which he identified. Police investigators checking upon his report of the burglary found the fingerprints and palmprints of Morrison on the bedroom windowsill.

Appellant contends that because the arrest, search and seizure were illegal the stolen television set should have been excluded from evidence; that the testimony of an accomplice was not adequately corroborated; that the evidence was not sufficient to support the judgment; and that the trial court erred in pronouncing sentence. These contentions are without merit.

Although appellant contends that the arrest was unlawful he at no time made objection in the trial court nor did he request that the evidence be excluded there. The issue of illegal arrest, search and seizure may not be raised for the first time on appeal. (People v. Cockrell, 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116; PEOPLE V. ROSS, 67 CAL.2D ---, ---, 60 CAL.RPTR. 254, 429 P.2D 606;^A PEOPLE V. DUTCH, 254 CAL.APP.2D ---, ---, 61 CAL.RPTR. 727.)^B 'Except in certain circumstances not present here, the admissibility of evidence will not be reviewed on appeal in the absence of a sufficient objection in the trial court.' (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 765, 402 P.2d 834, 837.) Appellant did not cross-examine the police officer who merely testified to making the arrest and to the fact that upon inquiry he was told the television set belonged to Morrison. 'No objection having been made to the introduction of this evidence, and in the absence of testimony, conflicting or otherwise, that would tend to suggest the illegality of appellant's arrest or the search conducted incident thereto, no ruling thereon was required of the trial court. Therefore, there is nothing before us properly falling within the scope of appellate review.' (People v. Dutch, supra, ^C 254 Cal.App.2d ---, ---, 61 Cal.Rptr. 727, 729.)

Appellant contends that the testimony of Kline, who appellant asserts was an accomplice, was not adequately corroborated. Although Kline was taken into custody and subsequently released, he is not necessarily an accomplice to the crime since by definition an accomplice must voluntarily, with guilty knowledge and common intent with the principal offender, unite in the commission of the crime. (People v. Phillips, 240 Cal.App.2d 197, 202, 49 Cal.Rptr. 480; People v. Shaw, 17 Cal.2d 778, 112 P.2d 241; People v. Duncan, 53 Cal.2d 803, 3 Cal.Rptr. 351, 350 P.2d 103.)

In any event, the testimony of Kline was adequately...