People v. Robinson

The first clue in the solution of these burglaries developed when Officer Donald C. Johnson saw a Buick pull up behind the Hi-Hat Cafe at Pico Boulevard and Bedford Street, and observed one David Martin come out of the cafe and go to the ear. The driver opened the trunk and removed some clothing. They placed the clothing in the trunk of Martin’s car. The officer observed the men exchange money. He inquired of Martin whether he could look in the trunk of his car. Upon receiving an affirmative reply, he opened the trunk and observed brand new suits with the manufacturers’ labels and price tags still on them. They had not been altered or tailored. Martin, who had been known to the police for six or seven years by the name of Mario, told the officer that he had obtained some 20-odd suits from a person he knew as “Rogers”, but who was, in fact, defendant DeRosa. Martin told the officer that he paid $22 apiece for these suits and had sold all hut five for $25 each. He had sold them to the person who drove up in the Buick. The suits were being returned as they did not fit. Martin also told Officer Reid that one night he had taken DeRosa to a large pink house in the Wilshire district which is on an elevation some distance from the street. This house was two blocks north of Pico Boulevard and just off of Arlington Boulevard on Country Club Drive. There was a large gate, or posts for a gate, in front. Martin had told the officer that DeRosa intimated that he lived in this house. Officer Reid also had information, through the Orange County investigator’s office, that DeRosa was living in this locality in a pink house with a swimming pool in the rear. Martin went with the officers to the house and pointed it out to them. In addition to this information, the officers had in their possession the suits that had been delivered to Martin behind the Hi-Hat Cafe. The officers called Temple City and determined that Woodruffs Men’s Store had been burglarized and that suits with the same labels had been taken. Prior to going to the pink house, Officer Johnson received information from the Fullerton Police Department and the district attorney’s investigator that a pink house in the Wilshire area was occupied by five or six male Negroes who paid $250 a month rent; that it had a swimming

As Officer Johnson arrived at the house he observed another ear pull in. He asked the driver whether he lived there, and received an answer in the affirmative. He was told that Eobinson rented it and paid $250 monthly rental. The officer observed a Lincoln in the driveway and was informed that “. . . it belongs to Brooks. ’ ’ The officer was also informed that Brooks had an apartment at the rear of the garage. The officers checked the description of the house against the information he had. He noted the pink color, the pool, the guest house, and $250 monthly rental. The officer knocked at Brooks’ door and identified himself; he stated that he was looking for stolen clothing, and asked Brooks whether he had any. Brooks said “No,” and inquired, “Are you going to come in?” The officer replied, “Well, we would like to; would it be all right?” Brooks stated, “It would be all right for one of you. I have a lady friend with me ... It would be rather embarrassing for everybody to come in here, going through the apartment, but ... if you would like to come in and look around, you might.” The officer thanked him and said, “Pine.” The officer then asked, “Where do you keep your clothes?” Brooks pointed out the wardrobe. The officer saw a bed with someone in it. He couldn’t see who it was, but Brooks said it was a lady friend. The officer looked in the wardrobe and observed a quantity of men’s clothing, all new. He examined the suits for the labels but many of them had been removed. He inquired of Brooks as to the absence of labels. Brooks said he had purchased the clothes but that they were cheap; that he had removed the labels to avoid embarrassment with friends.

Upon leaving Brooks’ place the officer inquired for Eobinson ’s living quarters. They were pointed out to him. The officer knocked and explained to Eobinson that he ivas looking for stolen clothing. Eobinson said, “Would you like to come in and look?” Eobinson showed him the closet, where he observed numerous articles of clothing that seemed new, but with no labels. There was quite a large quantity, more than the ordinary person would be likely to have. Eobinson was asked why the labels were missing. He stated that he bought inexpensive clothing and that he liked to take the labels out so his lady friends wouldn’t see he was wearing cheap clothes. The police noted that Eobinson had some clothes of the Timely Brand, which was the same brand as those taken

The police returned the next evening and, with the permission of Robinson, made further search of the guest house that Brooks occupied as well as the main residence. They discovered additional items of men’s clothing, which they took with them.

All of the clothing and wearing apparel that the officers took from these premises were of the type sold at Woodruff’s or Andover’s, and all the items were of the kind the store representatives described as missing. Much of the wearing apparel recovered by the police came from the guest house occupied by Brooks. It is true that many of the articles could not be specifically identified as having been in either store. However, a gray suit, for example, was identified as coming from Andover because of its particular styling; a tweed coat was made of a fabric especially prepared for Andover; a gray jacket with silver buttons was made from a fabric which was sold exclusively through Andover; another suit was identified as Andover merchandise because of its cloverleaf lapels; still another had been made especially for Andover; another was on an Andover hanger; one was made by an English company for Andover. Included in the property recovered was a wine flask that had been imported from Spain by Andover; also five belts labeled “The Andover Shop”; also included were five tags marked “Woodruff’s, 7-95.” The officers also discovered a saw and hatchet in the leaves near the garage. These were identified by DeRosa as some of the tools used in cutting the hole through the wall into Woodruff’s store.

According to the testimony of DeRosa he, Robinson and Brooks had been looking around for a place to break into. DeRosa happened to observe Woodruff’s store and told Brooks about it. They drove out and looked it over on a Sunday. They decided how the place would be entered, and explained

DeRosa testified that Brooks at one time gave him a belt which had the name “Andover Shop” on it. DeRosa asked him whether “this was one of the hot ones.” Brooks did not reply—just laughed. DeRosa then took a hot iron and obliterated the name. DeRosa also testified that on another occasion he and Brooks were going along Huntington Drive; that Brooks pointed out the Andover Shop to him, and commented: “What a nice job that was; too bad we didn’t do that one together.”

Defendant testified that when the police officers came to the guest house where he was living on the night in question, they said they would like to come in and look around. He told them that he had an overnight guest and would not permit them to enter. One officer, however, entered anyway, went over to the wardrobe and looked through the wearing apparel. Defendant told the police that he had no knowledge of the things in which they were interested; that he purchased his clothing from wholesale outlets, and that was why he removed the labels. The officer, according to defendant, walked out and stated that everything appeared to be all right. About 45 minutes later the officers returned, started pulling out clothing, and told him to dress. The woman in bed corroborated Brooks’ story. Brooks also stated that he received numerous gifts of clothing from Robinson, whom he knew to be in the apparel business. He denied having participated in burglarizing either store. In explanation of DeRosa’s testimony against him, Brooks testified that at one time he intervened in an argument between DeRosa and a woman; that he refused to loan his car to DeRosa at another time; and that DeRosa once wanted him to provide an alibi, which he refused to do.

In seeking a reversal defendant has attacked the judgment upon numerous grounds. We have concluded that none of them is well founded.

Initially, defendant argues that the evidence which

Defendant makes the contention that the evidence is insufficient to support his conviction. In this connection it must be borne in mind that before a reversal may be had on this ground it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ].) Also, we must assume in support of the judgment the existence of every fact which the trier of fact could have reasonably deduced from the evidence, and then determine whether the facts “justify the inference of guilt.” (People v. Deysher, 2 Cal.2d 141 , 149 [ 40 P.2d 259 ].)

Applying these principles, it is clear that the defendant was a participant in both of these burglaries. He was found in possession of stolen merchandise. This is a circumstance bearing on his guilt. (People v. Williamson, 168 Cal.App.2d 735 , 742 [ 336 P.2d 214 ].) While mere possession of stolen goods is not sufficient, if standing alone, to sustain a conviction of burglary, yet “such possession is a circumstance strongly indicating the guilt of the person” (People v. Jackson, 146 Cal.App.2d 553 , 556 [ 303 P.2d 767 ]) and only slight additional corroborative evidence is needed to sustain a conviction. (People v. Citrino, 46 Cal.2d 284 , 288 [ 294 P.2d 32 ].) Defendant had numerous items in his apartment from the Andover Shop. In addition, defendant made incriminating admissions to DeRosa relative to the Andover Shop, commenting that it was a nice job, and too bad that they did not do it together. Then there is the instance

But, argues defendant, DeBosa was an accomplice, and, under Penal Code, section 1111, his testimony would require corroboration in order to sustain the conviction. He then argues that there was a lack of necessary corroboration. It is true that DeBosa was an accomplice in the burglary of the Woodruff store. However, there was ample corroboration, for it'is the law that “if possession of stolen goods soon after a burglary is unexplained or the attempted explanation [is] rejected by the jury, such alone is sufficient corroboration.’’ (People v. Carswell, 149 Cal.App.2d 395 , 402 [ 308 P.2d 852 ]; People v. Miller, 54 Cal.App.2d 384 , 386 [ 128 P.2d 785 ] ; People v. Haughey, 79 Cal.App. 541 , 543 [ 250 P. 406 ].) The similarity of the commission of crimes is another circumstance of a corroborative nature. (People v. Otterman, 154 Cal.App.2d 193 , 209 [ 316 P.2d 85 ]; People v. Weitz, 42 Cal.2d 338 , 347 [ 267 P.2d 295 ].) In this connection it is significant that the burglary of the Andover Shop paralleled that of the Woodruff store. Each burglary was accomplished in the same manner of entry by first breaking into the office next door, where there was no burglar alarm, and cutting a hole through the side wall, thus avoiding the likelihood of disturbing the burglar alarm of the store, which is generally at the front or the rear of the building. Each crime had the same identifying technique. The defendant had a great number of men’s suits and men’s other furnishings that came from the Andover Shop. Furthermore, DeBosa was not an accomplice in that burglary. What he testified to about that crime did not come from a tainted source. It is therefore clear that the corroborating facts and circumstances were ample to meet the requirements of Penal Code, section 1111.

Defendant argues that the court erred in failing to instruct the jury that evidence received against DeRosa should not be considered as evidence against him. The first difficulty with this argument is that he failed to ask for any instruction limiting the effect of evidence that was admitted generally. Any objection he may have had was therefore waived, and cannot be raised for the first time on appeal. (People v. McGoldrick, 107 Cal.App.2d 171 , 174 [ 236 P.2d 597 ].) Furthermore, it does not appear that such an instruction would in any event have been proper. Examination of the record indicates that only two items were received in evidence after having been taken from the possession of DeRosa. These were People’s 17, a pair of shoes taken from Woodruff’s store, and People’s 59, the belt which defendant gave to DeRosa with the Andover name on it, and which DeRosa obliterated. The belt had particular significance in that it tended to corroborate DeRosa’s story, for defendant’s attitude led DeRosa to believe that it was stolen, thus manifesting conduct which indicated an admission. The shoes, too, corroborated DeRosa’s story, in that his possession of them tended to show that he was in on the burglary of Woodruff’s store, as he testified, since they came from there.

Defendant next contends that his prior conviction was in reality only a misdemeanor and not a felony. Upon being convicted of receiving stolen property, proceedings were suspended and defendant was placed on three years’ probation. Proceedings having been suspended after his plea of guilty to an offense which is punishable either as a felony or a misdemeanor, the offense stands as a felony, absent a judgment, and no judgment was pronounced. (People v. Banks, 53 Cal.2d 370 , 381-388 [ 1 Cal.Rptr. 669 , 348 P.2d 102 ] ; People v. Lippner, 219 Cal. 395 , 403-405 [ 26 P.2d 457 ].)