People v. Perez

This is an appeal by defendant from a judgment of conviction of grand theft and from the order denying his motion for a new trial.

The record shows that one Emedio Ramierez, a 76-year-old laborer, had received and cashed a Social Security check for $420. He left $250 for safe keeping with the owner of the liquor store where he cashed the check and took the balance with him. Thereafter Ramierez went to the Mission Tavern in Merced, had a few beers, watched a card game, loaned a friend $30 and talked to defendant. Around 10 p. m. defendant said to Ramierez, “Let’s go to the hotel, I have some girls.” Defendant had seen Ramierez’s money on the occasion of the $30 loan. The two went to the Central Hotel where defendant registered Ramierez under the name of Perez, telling the clerk that Ramierez was his father. He was given room 19 which adjoined the one occupied by defendant and his common law wife. Ramierez entered the room with the woman and remained there approximately an hour, resting on the bed and dozing lightly. Defendant was not in the room during this time. While Ramierez was in the room with the woman he took off his shoes and placed his wallet in them. He was certain no one touched his wallet during this time. Also, during this time, the hotel clerk heard someone pacing the hallway and, upon investigation, saw defendant outside room 19 and heard him say, “Now stay in the bed, pop.” Defendant told the clerk that Ramierez was his father; that Ramierez had been sick for a long time; that he was going to try to get him to go back to Sacramento where defendant’s mother was; that Ramierez wanted to go to Sacramento; and that, “He has got some money on him... and there is some people up there trying to get it off of him.” Subsequently all three departed in a taxi, ostensibly for the Torino Hotel. Upon arriving at that hotel, Ramierez said he was going home. Defendant and the woman suggested that they accompany him, but Ramierez said he wanted to go alone. Eventually the three left together. Shortly after arriving at his home Ramierez bent over to pick up a magazine from the floor. As he did so he felt his wallet being taken out of his pocket and then saw it in the woman’s hands. Defendant was standing three or four feet away from him at the time. Ramierez said he was going to call the police and left for his nextdoor neighbor’s house to use the telephone. Upon returning to his own home he saw defendant and the woman leaving. Ramierez ran after them and grabbed the woman but was pushed away by defendant. The next

Defendant and the woman returned to the Central Hotel, but upon seeing a police ear in front left without obtaining their belongings and took a bus to Stockton.

At the trial defendant testified that he had taken Eamierez to the Central Hotel at Eamierez’s request; that Eamierez himself asked defendant to register him as his father; and that Eamierez had invited him and the woman to his home. Defendant denied that any money had been taken from Eamierez. He further denied that he had made the statement to the room clerk that someone was trying to get money from Eamierez, and also denied the truth of Eamierez’s statements regarding the events that took place at Eamierez’s home, and stated that he and the woman left his home because Eamierez had been drinking too much.

Defendant contends (1) that the evidence is insufficient to establish that he was a principal in the commission of the offense; (2) that the trial court committed error in admitting evidence of the attempt of defendant’s brother to suppress the testimony of the complaining witness; and (3) that the trial court committed error in allowing the police officer to testify to the statement he made to the complaining witness.

Section 487 of the Penal Code states: “Grand theft is theft committed in any of the following cases: . .. 2. When the property is taken from the person of another ...” Section 31 thereof provides that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid or abet in its commission, are principals in any crime so committed.

It is well settled that the question of whether or not a person who is shown to have been present at the time and place of the commission of a crime has aided and abetted therein, is one of fact for the jury to decide from all the circumstances proved. (People v. Woodward, 45 Cal. 293 [ 13 Am.Rep. 176 ] ; People v. Kauffman, 152 Cal. 331 [ 92 P. 861 ]; People v. Silva, 143 Cal.App.2d 162 [ 300 P.2d 25 ].) While the record in the instant ease discloses circumstantial evidence from which the jury could find defendant guilty of the requisite participation in the crime charged, it cannot be said that such evidence presents a strong case for the prosecution.

The testimony which forms the basis of defendant’s second

There can be no question as to the admissibility of testimony relative to the efforts of a defendant to suppress testimony, since such actions show a consciousness of guilt. (People v. Kendall, 111 Cal.App.2d 204 [ 244 P.2d 418 ].) However, if the attempt is made by a third person outside of the presence of the defendant, it must appear that the third person is acting on behalf of the defendant in so doing, or is authorized by him to do so. The authority of the third person may be shown by circumstantial evidence. (People v. Kendall, supra.) In the instant case it is not denied that

In People v. Gilliland, 39 Cal.App.2d 250 [ 103 P.2d 179 ], a somewhat similar situation was presented. There Gilliland was recalled on cross-examination and asked if he had not stated to the complainant’s maid that if she would testify to certain facts, his codefendant Goetz, would pay her well. Following categorical denials by Gilliland, the maid was called as a witness and permitted to testify that such statements were made by him to her. The reviewing court held: “We have no hesitancy in saying that this testimony should not have been admitted as against appellant Goetz . . . The record before us is . . . barren of any evidence showing that appellant Goetz was connected with or authorized the efforts to tamper with the witness. Hence it was palpable error to receive in evidence as against appellant Goetz the acts and declarations of his former alleged coconspirator made without his proven knowledge, consent or presence . . .” (See also People v. Weiss, 50 Cal.2d 535 [ 327 P.2d 527 ].)

The prosecution in the Gilliland ease, as here, argued in support of the judgment that even if it was error to have admitted such testimony, it was not prejudicial under section 4%, article VI of the Constitution. In view of the state of the record, it appears to this court that the judgment cannot be saved by said section. “We do not understand section 4Y2 of article VI of the Constitution as intended to mean that merely because the evidence may legally be able to stand up under the weight of the judgment, that is sufficient reason in all eases for refusing to set aside the judgment ... If a defendant cannot be fairly convicted, he should not be convicted at all; to hold otherwise would be to provide ways and means for the conviction of the innocent. It cannot be gainsaid that you cannot inspire or preserve respect for the law by withholding its protection from those accused of crime. While deviation from the prescribed rules of law governing trial may result in justice for the particular defendant who is before the bar, it is dangerous to the community and its citizens.” (People v. Gilliland, supra, p. 264.)

The judgment and the order denying defendant’s motion for a new trial are reversed.

Van Dyke, P. J., and Schottky, J., concurred.