People v. Mitchell

This is an appeal from a conviction of burglary in the second degree. The scene of the crime was Suzie’s Dress Shop in Sacramento. The store was locked on the night of May 4, 1964, and was entered during the night. When one of the owners arrived at the store the next morning, she described the scene as follows: “. . . there was a lot of our merchandise which was strewn around on the sidewalk in front of the store and to the rear of the store. Underpants were draped on the door, there was a dress or two parts of one dress was out in front, and the entire store on the inside was just completely disarray. There were—there was lingerie, dresses, swimsuits, just one end to the other. It was just absolutely havoc.” It appeared that the back window had been broken to effect entry. It had been installed so as to swing inward, leaving an opening through which a person could enter and appellant’s fingerprints were found on the inside of the glass. A mannequin, which had been in the front window of the store, had been thrown down and torn apart and the dress which had been on it was missing. (This is the only article shown to have been taken.) Several pairs of panties were found with the crotch ripped out and a black dress was ripped and had “a foreign matter all over it.” A slip was also found with “foreign matter” on it. The cash drawer, which contained from $50 to $100 in cash, was not disturbed, although it was readily accessible to one searching for money. Several days after the entry into the store, an officer searched the apartment of appellant but did not find the missing garment there.

During the presentation of the prosecution’s case in chief a San Jose policeman was sworn and testified over the objection of appellant to a statement that was made to him by appellant in July of 1962 concerning the burglary of a Stilson Brothers Cleaners establishment in Sacramento. The officer testified that the statement was voluntarily made and

Before this evidence was received there had been a conference between the court and counsel on both sides relative to its admissibility. The prosecuting attorney made an offer of proof, stating in substance the testimony which we have related above and which was admitted later. Defense counsel objected that the testimony would be irrelevant and immaterial so far as the offense charged was concerned; and that it did not fit the common plan, scheme, or design rule. The prosecutor replied that it was introduced to show intent, identity and motive, citing People v. Sykes, 44 Cal.2d 166 [ 280 P.2d 769 ], as authority in support of his position. The trial judge announced he was going to allow the testimony to come in, saying he had spent some time prior to the conference on the question of admissibility of evidence of other crimes. He quoted from People v. Henderson, 60 Cal.2d 482 , 494-495 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ], as follows: “ ‘It is settled in this state that except when it shows merely criminal disposition, evidence which tends logically and by reasonable infer

First, it is to be noted that the objections made at the conference were limited to the questions of relevancy and materiality and, as made, the objections were not good. It is obvious from the testimony of the proprietor that this was no ordinary burglary wherein the burglar enters with intent to enrich himself by stealing money or property. Usually the cash register would have received attention and its contents so easily accessible would have been taken. Usually no destruction or disarray of property such as occurred here would have been indulged in. Ordinarily, a burglar would not have destroyed or scattered the goods in the store but would have taken what he wanted and departed. As the witness said, the condition in which the store and the goods therein had been left was simply “havoc.” And that there was at least another prime motive other than theft for the entry was likewise obvious from the ripping out of parts of intimate feminine apparel and from the “foreign matter” found on some of the garments. In fact, it is conceded by the prosecution that self-gratification was a prime motive for the entry into the store, but it was the People’s theory there was a second prime motive and that it was theft, that is, the intent of the entry was to take intimate feminine apparel for future use for self-gratification. It was so argued to the jury. The defense, while not contending that appellant had not entered the store, asserted throughout and argued to the jury that he had had no intent to steal; that the other motive was

As the record stands, no proper objection having been made, and the evidence being relevant and material as showing identity, motive and intent, the evidence was admissible so far as the specific objections made be concerned, and we think the trial court in this aspect properly ruled that the probative value outweighed the possible prejudicial effect of the evidence. Hence there was no abuse of discretion in allowing the testimony to come in unless it was inadmissible for another reason.

Appellant argues that error was committed in admitting the statements because there was no independent proof of the corpus delicti of the other offense. It is true that extrajudicial admissions and confessions are not admissible to prove prior offenses without proof aliunde that such crimes have been committed. (People v. Hamilton, 60 Cal.2d 105 , 129-130 [ 32 Cal.Rptr. 4 , 383 P.2d 412 ] ; People v. Hines, 61 Cal.2d 164 , 174 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ].) But this objection was not made. “Where inadmissible evidence is offered, the party who desires to raise the point of erroneous admission on appeal must object at the trial, specifically stating the grounds of his objection, and directing the objection to the particular evidence which he seeks to exclude.” (Witkin, Cal. Evidence (1958) § 700, p. 732.) Furthermore, the admissibility of the statements was the subject as we have noted of a special conference, so that there was ample opportunity to make whatever objections counsel desired to make. It also appears that on motion for new trial, where this same point was made, the People replied, and there was no denial of the truth of the assertion, that proof of the corpus delicti was available and at hand during the trial, but that in the absence of specific objection calling for such proof it was omitted. We cannot ascribe error at the trial because proof aliunde of the corpus delicti of the previous crime was not made.

Appellant contends that the trial court committed error in failing on its own motion to give the usual instruction about oral admissions, that they should be viewed with caution, referring here again to the testimony of the police officer concerning appellant’s statements as to other crimes.

The People also contend that because appellant failed to object to the trial court on the ground here under discussion the matter cannot be raised on appeal. The interrogation took place long before Escobedo, which was decided June 22, 1964. But the trial took place on August 7, 1964, and thus, as the People argue, the question is presented as to whether it is unreasonable to require a defendant to object to the trial court on this ground in a trial that occurred after Escobedo and before Dorado (decided January 29, 1965). Submitting that it is not unreasonable, the People argue that the decision of the Supreme Court in Dorado “merely involves the logical application of existing rules of evidence established by the United States Supreme Court in Massiah v. United States, 377 U.S. 201 [ 84 S.Ct. 1199 , 12 L.Ed.2d 246 ], and Escobedo v. Illinois, 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ].” We think it would be unreasonable to require the making of an objection under the circumstances of this case, including the short time between Escobedo and the date of trial. We note that a conference was held as heretofore stated on the

“Only when the investigatory stage has become an accusatory one, that is, when it has begun to focus on a particular suspect, . . . and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements, does the doctrine of Escobedo apply. . . . Moreover, an important consideration in determining whether the accusatory stage had thus been reached must be a careful concern that there be no interference with the legitimate police investigation of an unsolved crime. ’ ’ (People v. Dorado, 62 Cal.2d 338 , 354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].) We are satisfied that this record will not support an inference that the conversations held between appellant and the San Jose police officer ever reached the accusatory stage. Upon the record before us, there is no merit in the claim that appellant’s constitutional rights were infringed upon by the use of the statements received in evidence.

The next assignment of error rests upon the refusal of the trial court on request to instruct the jury as follows: “You may find the Defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, if, in your judgment, the evidence supports such a verdict under my instructions.

“To enable you to apply the foregoing instruction, if your findings of fact require you to do so, I instruct you that the offense of burglary, of which the Defendant is charged in the

“Every person who wilfully commits any trespass by entering and occupying any real property or structures of any kind without the consent of the owner, his agent, or the person in lawful possession thereof, is guilty of a misdemeanor. ’ ’

The instruction was properly refused. Criminal trespass is not a necessarily included offense in a charge of burglary. (People v. Harris, 191 Cal.App.2d 754 [ 12 Cal.Rptr. 916 ].) Appellant claims the prosecutor was guilty of prejudicial misconduct in his final argument to the jury. Extended comment is unnecessary on this assignment of error. No objection or request for an admonition was made to the court at the time. Where no objection is made to alleged misconduct of the prosecuting attorney, such claimed misconduct will not furnish grounds sufficient to justify the granting of a new trial or the reversal of a judgment. (People v. Rosoto, 58 Cal.2d 304 [ 23 Cal.Rptr. 779 , 373 P.2d 867 ]; People v. Perez, 58 Cal.2d 229 [ 23 Cal.Rptr. 569 , 373 P.2d 617 ] ; People v. Lyons, 50 Cal.2d 245 [ 324 P.2d 556 ].) There are well-known exceptions to this general rule but they have no application upon the record here.

Finally, appellant argues that the evidence was insufficient for the jury to conclude that he entered the store with the intent, among other things, of stealing a dress or dresses for future use. The crime of burglary is complete when the entry with necessary intent is made, whether the intended theft was committed or not. But here there was evidence that one dress was missing and although a search several days later did not disclose that the dress was in appellant’s possession, this would not preclude the jury from concluding that he had taken it, and that he had entered the store with the intent to do so. The evidence sustains the verdict.

The judgment and order appealed from are affirmed.

Pierce, P. J., and Regan, J., concurred.