People v. Azevedo

The People have appealed from an order of the superior court granting the defendant’s motion to set aside an information. The information contained three counts, the offenses charged being respectively burglary (Pen. Code, § 459), receiving stolen property (Pen. Code, § 496), and grand theft (Pen. Code, §§ 484, 487). The defendant’s motion was made under the provision of section 995 of the Penal Code that the information must be set aside, on the motion of the defendant, by the court in which he is arraigned when the defendant has been committed without reasonable or probable cause.

The evidence as set forth in the reporter’s transcript of the preliminary examination will be summarized. Raymond Childers testified that he resided in Atascadero with his wife and his two sons, Arthur and John. In February of 1962, Arthur was 15 years old and John was 17 years old. When Mr. Childers returned to his home about 5:10 p.m. on February 19, 1962, he went into the barn and discovered that an impact wrench and drill were missing. On February 22, 1962, he went to the building which contained his gun room, unlocked the door and entered. He had not theretofore been in that room at any time after he found articles missing

Sergeant Dudley of the Sheriff’s Office of San Luis Obispo County testified that he talked to the defendant on several occasions after the property of Mr. Childers was taken. In a telephone conversation on May 28, 1962, he asked the defendant whether he was in possession of a Schneider ten gauge double barrel shotgun, and the defendant replied that he was. Sergeant Dudley further testified: “I asked him where he got it, [and] he said that he bought it from John Childers. I asked him for how much, [and] he said $25.00. ... I asked him if he knew it was stolen and he said he did not.” The defendant further said that at first John Childers had wanted the defendant to lend him $45 on the shotgun and the impact wrench, but the defendant said that he would lend him $25 “for the gun and if he didn’t pay him back in 30 days, he would consider the gun his. ”

On June 3, 1962, Sergeant Dudley talked to the defendant at a residence in Atascadero. He related the conversation in part as follows: “I asked him if he had the shotgun with him, [and] he advised me that he did and I requested to see it, and he produced the shot gun. ... I asked him if he had been involved in it [the burglary], [and] he said no.” The officer testified that the gun which the defendant delivered to him on June 3 was “a double barrel, ten gauge Schneider shot gun, hammerless, bearing serial number 919.”

After the defendant had been arrested, Sergeant Dudley talked to him in jail on either June 14 or June 15. With respect to that occasion, the officer testified as follows: “. . . I went back to the cell that he was in and at that time he did admit to me that he knew the gun was stolen.....He

While under cross-examination Sergeánt Dudley testified that the defendant never used “these exact words” that he knew the articles had been stolen. The officer testified in part: “I believe I asked him, did he know that these were stolen from Mr. Childers. I believe that is the wording of the question that I asked him, and he said yes.” Another portion of the cross-examination of Sergeant Dudley as to the defendant’s statement made at the jail relating to what occurred on the Childers ’ premises was as follows: “Q. He told you that they had some of this stuff there ? A. I don’t believe he—he said that they told him that he had this stuff there. He observed it there by the door of the gun house or gun room. Q. What did he observe? A. He told me the stove and the lantern and I believe one of them went in and got the shot gun. I don’t know whether it was the defendant or one of the two Childers’ boys.”

The governing law was stated by this court in People v. Platt, 124 Cal.App.2d 123 [ 268 P.2d 529 ], at pages 130-131, as follows: “The evidence necessary to justify an order holding a defendant to answer to the superior court is not subject to the same test as that before a trial jury in a criminal action, and reasonable or probable cause may be found for holding to answer although the evidence does not establish the defendant’s guilt beyond a reasonable doubt. All that is required is a reasonable probability of the defendant’s guilt. (Davis v. Superior Court, 78 Cal.App.2d 25 , 27 [ 177 P.2d 314 ].) ‘Reasonable or probable cause,’ required to uphold the commitment of a defendant (Pen. Code, § 995), exists if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. (People v. George, 95 Cal.App.2d 425 , 429 [ 213 P.2d 33 ]; People v. Thomas, 90 Cal.App.2d 491 , 494 [ 203 P.2d 567 ].)

“ On motion to set aside the information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated. (Weber v. Superior Court, 35 Cal.2d 68 , 69 [ 216 P.2d 871 ].) A court may not substitute its judgment as to the weight of

In the third count the defendant was charged with grand theft. But there was no competent evidence upon which to base a finding that the personal property taken was of a value exceeding two hundred dollars. (See Pen. Code, § 487.) Mr. Childers, the owner, was not asked to express an opinion as to that subject in the course of his testimony. (Cf. People v. Lenahan, 38 Cal.App.2d 39 , 41-42 [ 100 P.2d 515 ]; People v. Haney, 126 Cal.App. 473 , 475 [ 14 P.2d 854 ].) The superior court did not err in granting the motion made under section 995 of the Penal Code with respect to that count. (See People v. Coon, 38 Cal.App.2d 512 , 517 [ 101 P.2d 565 ]; People v. Simpson, 26 Cal.App.2d 223 , 229 [ 79 P.2d 119 ].)

In the second count of the information the defendant was accused of the crime of receiving stolen property. The elements of that offense are (1) that the property found in the possession of the defendant was acquired by acts constituting theft or extortion, (2) that the defendant received, concealed, or withheld the property from the owner, and (3) that the defendant knew that the property was stolen. (People v. Gould, 111 Cal.App.2d 1 , 4 [ 243 P.2d 809 ].) The testimony of Mr. Childers was sufficient to establish the first element. Moreover, there was evidence that the stolen shotgun was found in the defendant’s possession. The problem remaining for consideration is whether there was sufficient evidence with respect to the third element.

The requisite guilty knowledge can be inferred from circumstantial evidence. (People v. Scaggs, 153 Cal.App.2d

After his arrest the defendant gave an explanation of his acquisition of possession of the shotgun which was not only more detailed than his first explanations but was inconsistent with those earlier explanations with respect to the matter of guilty knowledge. The later statement, regardless of the truth of the assertions therein contained, was sufficient to throw doubt upon the reliability of the earlier explanations which were rooted in a claim of innocence of wrongdoing on the part of the defendant. In the absence of a satisfactory explanation by the defendant as to his possession of the stolen article, an inference of guilty knowledge was warranted. (See People v. Juehling, 10 Cal.App.2d 527 , 531 [ 52 P.2d 520 ].) Consequently, with respect to the second count it was error to grant the motion.

The order is affirmed with respect to the third count and is reversed as to the first and second counts which contain, respectively, the accusation of the commission of the crime of burglary and the accusation of the commission of the crime of receiving stolen property.

Shinn, P. J., and Piles, J., concurred.