People v. Wilson

• Decision Date: 30 November 1965
• Docket Number: Cr. 4656
• Citation: 238 Cal.App.2d 447,48 Cal.Rptr. 55
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Grant WILSON, Jr., Defendant and Appellant.

Page 55

48 Cal.Rptr. 55

238 Cal.App.2d 447

The PEOPLE of the State of California, Plaintiff and Respondent, v. Grant WILSON, Jr., Defendant and Appellant.

Cr. 4656.

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

Nov. 30, 1965.

Hearing Denied Jan. 26, 1966.

John J. Fahey, San Francisco, Herman W. Mintz, James Giller and David A. Himmelman, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen., of California, Albert W. Harris, Jr., Derald E. Granberg, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Following a jury verdict finding defendant guilty of burglary in the first degree in violation of section 459 of the Penal Code, he was sentenced to be imprisoned in the state prison for the term prescribed by law. Execution of sentence was suspended and he was placed on probation for a period of four years upon terms and conditions which included serving a term of one year in the county jail. Defendant has appealed from the final judgment of conviction, from the sentence imposed, and from an order denying a motion for a new trial. Although the propriety of the order denying a motion for a new trial may be reviewed on the appeal from the judgment, no appeal lies from it as such, so the purported appeal from that order must be dismissed. (Pen.Code § 1237.) The appeal from the sentence is merged in that from the judgment. (Id., and see People v. Sweeney (1960) 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049.)

Defendant contends that the trial court erred in admitting testimony of 'conversations' had with the defendant. Because there is only one statement of the defendant involved, the question is more properly framed as whether or not the trial court was justified in admitting evidence of questions propounded to the defendant, together with evidence of the lone answer to one and his failure to answer the remaining questions, on the grounds that such evidence either showed acquiescence of the defendant in the truth of the statement, or indicated his consciousness of guilt. For reasons hereinafter set forth the rulings of the trial court are upheld.

The defendant contends that it was error to admit in evidence certain articles found on his person which were not shown to have been actually connected with the burglary which in fact occurred; that it was error for the prosecutor to maintain these articles in view of the jury prior to their introduction in evidence; and that the prosecutor committed prejudicial error in referring in his argument to an article which was not admitted in evidence. A review herein of the circumstances of this case reflects that all of the articles were properly before the jury and no error can be predicated on any of the foregoing propositions.

Defendant does not contend that the evidence is insufficient to sustain his conviction. It is, however, necessary to recount it in substance so that the matters complained of can be viewed in proper perspective. This is particularly true insofar as it is contended that certain police action violated defendant's prearraignment right to be advised of his rights to counsel and to remain silent. (See People v. Stewart (1965) 62 Cal.2d 571, 579, 43 Cal.Rptr. 201, 400 P.2d 97.)

The victim, a United States Treasury Agent, testified that he lived in apartment 002 of a three-story apartment building with approximately 20 units at 271 Vernon Street in Oakland; that his apartment was the rear one of two on a floor below the level of Vernon Street, but above the carport area in the back of the apartment.

On Friday, September 13, 1963, at about 7:00 p. m., he left the apartment for the weekend, turned off the lights, and locked the door. Keys to the apartment were held by himself, the manager and his wife, who was away during all of the period involved. Although the bed was not made up, generally everything was in order in the apartment.

Early the following morning, at 3:30 a. m. on September 14th, pursuant to directions received on the police radio, three officers converged on the premises at 271 Vernon Street. Officer Lusk, the first to arrive, talked to a man coming out of the driveway of the premises and went down the driveway into a garage area under the apartment building. He continued on through a door to the back of the building to another parking area under the apartment and checked the automobiles there. Officer Hoover, who pulled up as Lusk was getting out of his car, walked over and talked to the reporting party in the driveway with Lusk. While he was still there Officer Fiege arrived and joined the conversation. Hoover went down to check cars in the subterranean garage.

Fiege went searching down through the garage and out the same door through which Lusk had exited toward the rear of the building. He descended some stairs which led to a back driveway leading to the carports under the apartment. Just before he entered the driveway he heard a commotion of feet moving in the driveway and around the side of the building. He stepped around the corner, showed his flash-light in the direction from which he had heard the noise, and saw the lower helf of a man going in the doorway in the middle of the building. He shouted, 'Come out of there,' went to the doorway and observed two men going through a doorway at the top of some stairs at the end of a hall. He got to the top of the stairs in time to see the two men running down another hallway. He observed that they both had on dark clothes and that the rearmost of the two men had black gloves on and some kind of black cloth in his left rear pocket. The man in front seemed to have a suit coat on, and the other a knit-type sweater. Fiege was running and shouting 'Halt,' but the men did not halt. They ran out of the building, turned right on Vernon Street, and turned off Vernon Street into a driveway.

Meanwhile Lusk, who was also in the rear of the building, had heard Fiege's shouts. He turned and saw Fiege starting up the stairway. He ran over and saw Fiege at the first landing with someone running ahead of him. Lusk doubled back around the side of the building, and by the time he came to the street there was no one there.

Hoover, who was just about to go through the door from the subterranean garage to the rear, heard the shouts and sounds of running to the rear of the building. He ran toward the street and as he came up the stairway saw 'people' running south on Vernon with Officer Fiege running after them. He chased them down Vernon Street and saw one turn in the driveway.

Fiege, who was tired, gave up the chase at the point where Hoover overtook him, and returned to his patrol car. Hoover ran into the driveway and stopped momentarily in a parking area. He heard sounds to the south and to the west, and followed those which he believed to be the closer. Upon arriving at a stairway he saw a person descending and yelled, 'Stop, police.' The suspect turned north on reaching the street at the foot of the stairs, and Hoover, on arriving at the same street, observed him run northbound and turn to the left between two buildings. At this point Fiege drove by, conversed with Hoover and continued around the block. Hoover again saw the suspect as the latter emerged from between the two buildings and started to run across a traffic island. When the officer again yelled, 'Stop, or I will shoot,' he stopped. Hoover held him, now identified as the defendant, at gun point. He was joined by Officer Dorsey who handcuffed the defendant and in less than a minute Fiege came on the scene.

Both Fiege and Hoover noticed that the defendant was out of breath and sweating profusely, and according to Hoover, he appeared to be frightened. He was attired in a white shirt with a dark sweater which was tucked in at the collar, dark pants, dark shoes and no socks. He had black leather gloves on, and held a silver pen-light in his hand.

At the trial Hoover was asked to relate any conversation he had with the defendant at this point. After objection was overruled the following transpired: 'Q. * * * What did you say? A. I asked him what his name was. Q. What did he say? A. He didn't say anything. Q. Any other questions by you? A. I asked him where he was going in such a hurry. Q. What did he say, if anything? A. He didn't say anything.'

Hoover then searched the defendant and found the following: three pairs of socks--gray, black and brown argyle--and a black silk sack in his left rear pants pocket; a second small pen-light in the sack; a black Navy watch cap in the right front pants pocket; a pair of bolt cutters with the handles cut off in his right rear pants pocket; and three plastic strips in his only shirt pocket. Defendant bore no wallet, credit cards or other cards indicating his identification. He had nothing else on his person other than a normal man's white handkerchief and money amounting to seven or eight dollars.

Fiege placed the defendant in his patrol car and returned to park in front of 271 Vernon Street. Hoover retraced his steps in a vain search for anything that might possibly have been thrown away. Meanwhile Lusk had been looking around the apartment building and found the door of apartment 002 open two or three inches. The apartment was dark and no one responded when he rang the bell. He went out to the front to get another officer to enter the apartment with him.

Lusk met Hoover, who had returned to the apartment building, and they returned and entered apartment 002. They observed three jewelry boxes and the scattered contents thereof on the bed, and drawers of a dresser standing open.

At the trial Fiege was interrogated as to what transpired in the police car and, after defendant's objection was overruled, testified as follows: 'Q. All right, what did you say to the defendant; what was the conversation, Officer? A. I asked the defendant his name. He did not answer. I asked him his address. He did not answer. I asked him if he lived in that area. He did not...