People v. Zuniga

The defendant was charged with burglary and with two prior convictions, one for burglary and one for possession of a narcotic. He pleaded not guilty but admitted the prior convictions. A jury found him guilty of burglary in the second degree and he was sentenced to prison. He has appealed from the judgment and from an order denying his motion for a new trial.

The defendant was seen by a witness in a café at Chino on November 11, 1956. On November 14, 1956, a men’s store in Chino, with a cleaning establishment in connection called

The officers called the Los Angeles police department describing the modus operandi of the burglary, and the Los Angeles officers said they would investigate certain suspects who operated in a similar manner. At 6:30 p.m. on November 15, two Los Angeles officers went to the appellant’s home and placed him under arrest. While they were there the phone rang and the appellant picked up the receiver and said “Hello.” An officer seated beside the appellant heard someone on the other end of the line say “Where are my clothes.” The appellant and the other party then talked in Spanish and although the officer could hear all of the conversation he did not understand Spanish. The officers took appellant to the police station and booked him. Among his papers they found a card on which two phone numbers were written. These phone numbers were those of one Bico, who was well known as a receiver of stolen property. The appellant stated that he did not know how he happened to have Bico's numbers and that he had not seen Bico for a long time. Also, a telephone bill for, a Gloria Quesada and marked “Paid” was found among appellant’s papers. The officers went to the apartment of Gloria Quesada and in a cupboard of her kitchen found two large canvas bags. They took these bags to the station and the appellant first said that he had never seen the bags, later said that he had left the bags in her apartment but that she knew nothing about them, and still later said that she had asked him to obtain the bags for use as laundry bags. Subsequently, he told a Chino police officer that an

The officers talked to the man known as Eico, whose phone numbers appeared on a card taken from the appellant’s possession. Their talk related to the merchandise taken at Chino and following this discussion a large part of the property taken was recovered. A tape recording was made of this conversation with Eico, and a Chino officer told the appellant about the recording. The appellant replied that if what the officer told him was true he would testify against Eico and give the police the information they needed. The officer played the recording in the appellant’s presence and the appellant identified the speaker’s voice as that of Eico, saying that he “would know that voice anywhere.” In this recording Eico had stated that the appellant had called him at 2:45 a.m. on November 15; that Eico then met the appellant at Five Points where the appellant told Eico that he “had some stuff he wanted to get rid of” and asked Eico to help him; that Eico had seen the stolen goods and “there were suits, shirts, sweaters, and slacks in these two large bags”; and that this meeting at Five Points must have been on the way back from the burglary. After playing the recording the officer asked the appellant if he had heard the part in which Eico had positively “fingered” him. The appellant answered “Yes,” and “I can’t deny being there.” The appellant then told the officer that it would not help him (appellant) to talk then, that he was in too far to back out, and that he would wait and see how things went at the trial. There was also evidence connecting the appellant with a similar burglary at Oxnard on November 8, 1956.

The appellant took the stand and denied having anything to do with the burglary, denied that he had ever admitted having anything to do with it, denied having ever seen the canvas bags found in the Quesada apartment, and stated that he had never been in Chino since 1955, when he was released from the institution for men located there. He also testified that he had spent the evening of November 14 with Gloria

The appellant contends that the evidence was insufficient to support the verdict, arguing that the only evidence tending to connect him with this burglary was the “alleged” finding of a yellow ticket in the tire well of his car. Aside from the evidence of the yellow ticket found in his car there was evidence of many other circumstances, including the evidence of his shoe print; the evidence in connection with the bags found in the Quesada apartment, which showed evidence of having been dragged over dirt; the evidence of the telephone call concerning the whereabouts of some clothes; the evidence of a similar crime in Oxnard a few days before; the evidence of the attitude and statements of the appellant in response to accusatory statements; and the evidence that the appellant did not tell the truth with respect to a number of material matters. The evidence justified the inference that the appellant did not tell the truth when he said he had not been in Chino since 1955; when he denied what the officer heard the telephone caller say; and in connection with the bags found in the Quesada apartment where the appellant told four different stories to them, the last one being that he had used the bags to transport stolen goods for a third party. While the evidence was circumstantial, it was convincing and it was sufficient to have been accepted by the jurors as proving guilt beyond a reasonable doubt.

It is contended that the court erred in admitting evidence of another crime, referring to the evidence of a burglary at Oxnard on November 8. There was evidence that a men’s clothing store in Oxnard had been burglarized on November 8, entry having been made by breaking the panel out of a door. A crowbar and a pair of gloves were found on the premises and bundles of clothes had been moved to the rear of the store. A private patrol officer found the rear door of the store broken open, saw a parked car about 8 feet from that door, and saw a man enter this car and drive away. He saw the man coming from the vicinity of the rear door, about half way between the building and the car, and he appeared to be in a hurry

It is contended that the court erred in admitting evidence as to the contents of the tape recording of the conversation with Rico which was not had in the appellant’s presence. This evidence was admissible for the purpose of showing the appellant’s response and attitude when confronted with the accusatory statements contained therein. The general rules apply, and there is nothing in the ease of People v. Simmons, 28 Cal.2d 699 [ 172 P.2d 18 ], relied on by the appellant, which compels a holding of error or prejudice under the circumstances which here appear.

It is further contended in connection with this tape recording that the appellant was denied due process of law in that he had no opportunity to cross-examine Rico. Rico was not a witness, and there was ample opportunity to cross-examine the witness, the officer, who testified to the appellant’s statements and reactions in connection with the accusatory statements which were thus brought to his attention by the officer.

Finally, it is contended that the court failed to instruct the jury that the accusatory statements received through the contents of the tape recording were not to be considered by the jury as any evidence of the truth or falsity of the things there stated, but were received only for the purpose of judging the conduct of the defendant when con