Robert P., In re, Cr. 37987

• Decision Date: 29 June 1981
• Docket Number: Cr. 37987
• Citation: 121 Cal.App.3d 36,175 Cal.Rptr. 252
• Court: California Court of Appeals Court of Appeals
• Parties: In re ROBERT P., a Person Coming Under the Juvenile Court Law. The PEOPLE, Petitioner and Respondent, v. ROBERT P., Appellant.

Page 252

175 Cal.Rptr. 252

121 Cal.App.3d 36

In re ROBERT P., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Petitioner and Respondent, v. ROBERT P., Appellant.

Cr. 37987.

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

June 29, 1981.

Michael J. Udovic, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr. and Robert C. Schneider, Deputy Attys. Gen., for petitioner and respondent.

LILLIE, Associate Justice.

The minor appeals from order sustaining petition on three counts petty theft, receiving stolen property and tampering with an automobile and order of disposition.

A prima facie showing of the corpus delicti of the crime charged must be established before a defendant's extrajudicial statements, admissions or confessions may be received in evidence. (People v. Cantrell, 8 Cal.3d 672, 679, 105 Cal.Rptr. 792, 504 P.2d 1256.) Appellant contends there is no evidence independent of his statements to show that he committed the crimes. He is in error for the establishment of the corpus delicti does not require proof that defendant committed the crime charged. (People v. Starr, 11 Cal.App.3d 574, 581, 89 Cal.Rptr. 906.) " 'All that need be shown by independent evidence before a confession may be introduced is that a crime has been committed by someone.' (Citations.)" (People v. Ott, 84 Cal.App.3d 118, 131, 148 Cal.Rptr. 479; original emphasis.) The corpus delicti may be established by circumstantial evidence and by reasonable inferences to be drawn therefrom. (People v. Miller, 71 Cal.2d 459, 477, 78 Cal.Rptr. 449, 455 P.2d 377.)

Here ample independent evidence establishes that the crimes charged were committed. An automobile belonging to Nancy Church had been tampered with; the tires, radio and speakers of the vehicle were removed without the owner's consent and they were found in the possession of someone other than the owner.

On the night of December 18 a 1979 Pontiac Firebird with personal license plate "NCHURCH" and containing a Motorola 8-track AM/FM stereo belonging to Nancy Church was stolen.

At 1 p. m. on December 19 Officer Roupoli on patrol in a marked vehicle observed two juveniles, one of whom was appellant, standing at the gate of a residence. The other juvenile was holding up two tires which he began to roll toward the gate which appellant held open; at that time appellant looked in the direction of the officers then slammed the gate closed and ran to the rear of the yard. One officer detained the juvenile with the tires while Officer Roupoli ran through the gate; he observed defendant in the rear utility room of the residence looking out of the open door; when appellant saw the officer he disappeared into a smaller room from which Officer Roupoli ordered him to exit, and as he stepped out he dropped some gloves; appellant was detained for investigation. Officer Roupoli with the owner of the residence went to the utility room in which he had seen appellant and observed on an open shelf a small Motorola car stereo with two components; he then walked outside and searched the immediate area finding a 1979 Pontiac Firebird with personal license "NCHURCH" 75 yards from the gate. All four tires and the Motorola radio with speakers were missing from the Firebird; the tires and Motorola radio seized by the officers were identified by Church as belonging to her 1979 Firebird; she had given no one permission to take her car, tires or stereo.

Officer Jennings had a conversation with appellant who after being given his rights said he understood and waived them. Appellant told him "Alan came driving down the alley in a new Firebird. He told me he just stole it and the keys were in it. I watched Alan strip it and he asked me to take the tires down the street and he would give me some money. Me and Lizard was pushing the tires when the police caught us." He then stated: "The car the officers found in the alley was the one we took the tires off."

Ample independent evidence established the corpus delicti of each offense; it also demonstrated that appellant was not a stranger to the activity relating to the car, tires or radio. The extrajudicial statements of appellant were properly admitted. The evidence reviewed above is sufficient to enable a reasonable trier of fact to conclude beyond a reasonable doubt that appellant committed the offenses alleged in the petition. (In re C. D. H., 7 Cal.App.3d 230, 233, 86 Cal.Rptr. 565.)

Finally, appellant cites as error the trial judge's refusal to accept the affidavit filed pursuant to section 170.6, Code of Civil Procedure, as not timely filed. To place the issue in its proper perspective, we recount certain portions of the record that establish that the motion to disqualify was timely until the adjudication hearing actually commenced, and that the ten day-five day exception did not apply because the assigned judge who heard the adjudication matter was not known until four days before the hearing commenced.

Mr. Webber, deputy public defender, represented the minor; on December 24, 1979, the adjudication hearing was set for January 1, 1980, in department 265. On December 28 a Dennis H. hearing was held in department 264 and the cause continued for adjudication to January 11, 1980, in department 265. Judge Lachs was assigned to department 265 late in the week of January 1, but he did not preside in department 265 until the next week starting Monday, January 7, 1980, and continuing through Friday, July 11. In the morning of January 11 in department 265 Webber appeared and answered "ready" but it is apparent from the record that when the case was called for adjudication hearing in fact he could not try it then because he was representing another minor in another hearing in the courtroom next door (dept. 264), and the minor's case went to the second, third and fourth calls of the calendar; finally at 12:15 p. m. Webber returned to department 265. He told Judge Lachs there was about a ninety percent certainty that they could proceed with the minor's hearing that day but indicated he still had as many as four witnesses to call in the other case. Judge Lachs was reluctant to keep the witnesses waiting in the courtroom on the chance that he might be able to return and suggested a continuance to January 21 to which Webber objected.

At 1:30 p. m. Webber not able to try the case because he was still in trial in another department, filed an affidavit pursuant to section 170.6, Code of Civil Procedure, to disqualify Judge Lachs. Judge Lachs found the affidavit to be "not filed in a timely fashion." At 4:10 p. m. the adjudication hearing commenced with the calling of two witnesses; it was continued for hearing to January 22.

A great deal of sparring took place between Webber and Judge Lachs relative to Webber's inability to try the case even though he answered "ready" for hearing. But the record establishes the following which demonstrates that the affidavit was timely filed. As early as December 24 Webber knew the adjudication hearing was set in department 265 for January 11. There appear to have been two departments (depts. 264, 265) in the Juvenile Justice Center in South Los Angeles. Webber had been in and out of departments 264 and 265 between December 24 and January 11 and ordinarily it could be reasonably assumed that during this period he would know as early as December 24 the identity of the judge who would preside in the minor's case in department 265 on January 11. However, the yearly reassignment of judges by the presiding judge on January 1, 1980, precludes such assumption here, particularly in light of Judge Lachs' revelation that ten days before January 11 "he did not even know (he) was going to be here (dept. 265)";...