People v. Grant

In count I defendant was charged with grand theft, auto (§ 487, Pen. Code) and count II with receiving stolen property (§496, Pen. Code); the information also alleged two prior felony convictions—robbery and escape. Prior to trial defendant admitted the truth of the second alleged prior (escape); the first was stricken. A jury found defendant guilty of receiving stolen property (count II) and not guilty on count I. He appeals from the judgment and order denying Ms motion for new trial. The appeal from the order is dismissed.

On April 10, 1966, a 1965 Corvette with identification or engine number ending S120741 was stolen from Deena Rosen in Los Angeles. Three or four months later she identified the body at a tow yard either in Compton or Long Beach where she had gone at the request of the sheriff’s department. Her car had been stripped and the engine, transmission, seats, radio, steering wheel, stereo tape recorder, stereo tapes, tires, gauges, console, including the shift lever and the boot were missing. Miss Rosen, employed by Car Craft Magazine, was familiar with Corvette parts and their value and estimated the value of the engine to be approximately $400, the transmission $150 to $225 and the bucket seats between $100 and $150 apiece. In December 1966 she saw the bucket seats at West

On the issue of probable cause Officer Wyeoff, Westminster Police Department, testified that at the station he had been advised there was a warrant outstanding for the driver of a red 1955 Chevrolet. On October 15, 1966, he was answering a call concerning illegal soliciting; when he arrived at the parking lot he saw defendant enter a red 1955 Chevrolet. He took the license number, drove out of the parking lot and ran a record cheek on defendant’s vehicle. While he was awaiting the results defendant started his car and proceeded to back out of the parking lot, at which time the officer received information there was a felony warrant outstanding and that the ear was stolen. The officer then proceeded to pursue defendant and stopped and arrested him. The information concerning the warrant and the stolen vehicle had been received from a police dispatcher; a telephone check made with the Firestone sheriff’s office advised they did not seek the car as a stolen vehicle but wanted to impound it for purposes of investigation. Before Officer Wyeoff took defendant to the station he checked about the information given to him at the station; he was advised that defendant was wanted by the Firestone sheriff’s office on a warrant for burglary. He was also supplied with a description of the individual named in the warrant as well as his name; the person named was Delano Grant. Defendant identified himself to Officer Wyeoff as Delano Grant.

The red 1955 Chevrolet in which defendant was arrested had Corvette type seats, a Corvette type steering wheel, gauges marked Corvette and a small black console of the type found in Corvettes. The vehicle was registered to defendant. After it was impounded Officer Wyeoff checked the motor number and observed the last digit had been stricken out. He checked the transmission number which was 120741.

Sergeant Graf, Los Angeles County sheriff’s office, testified he had investigated between 100 and 150 cases of auto theft, approximately 50 of which involved Corvettes; he is familiar with the Corvette; the transmission and engine have the same number which is unique to one Corvette automobile; the body of the Corvette has the same identification number as the engine and transmission; he examined a 1955 Chevrolet at Westminster police station; the last digit of the identification number of the engine was obliterated by what he thought to be a chisel; by using a combination of acid and heat the number was raised and determined to be “1”; the

“The Court will instruct you that the Defendant has a constitutional right not to be a witness'against himself, not to testify unless he wants to, and you are not to consider ‘the fact that he did not testify, and I aim not going to touch on it.'

“That is out of the case, but that doesn’t give him the' right not to produce certain other evidence or witnesses, T mean, which I will refer to in a minute. . . .” [circumstances pointing to defendant’s knowledge that the Corvette parts and engine were stolen was discussed, then as to the engine and “attempt to conceal the number,’’ he continued] “this is evidence of the defendant’s knowledge that it was stolen; but" the biggest, the most convincing proof, that the Defendant' knew this was a hot engine, the most convincing witness of all is the witness who never took the stand. I was waiting-as I am sure you were, anxiously. . . . [ a motion was made -and-after some argument overruled] I was waiting anxiously, and perhaps you were, too, for the witness, the prime Defense wiU ness to take the stand. And "who would that be ? Naturally that' would be the person from whom the -defendant would -have legitimately purchased or received as a gift these particular" auto parts.’’ Appellant contends that while the prosecutor refrained from explicitly commenting on his failure to take the stand he really violated the rule of Griffin v. California, 380 U .S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ]-,- without-“actually cheating.’’

Griffin dealt with California’s practice of permitting the prosecution to comment upon, and the court’s instructing the jury as to the inferences to be drawn from"," a defendants exercise of the privilege guaranteed him by the Fifth Amend-' ment to the United States Constitution. Here the prosecutor specifically complied with the mandate of Griffin but' did argue and properly so, that the People's evidence—detail-" ing the same—was sufficient to sustain a. conviction of receiving stolen property, and no defense evidence having been pre-.sented that defendant did not know “this was a hot engine,’-’ the jury should convict him. The prosecutor told the jury, and"

Appellant contends that the evidence was insufficient as a matter of law to support - the conviction of receiving stolen property. “ To constitute the offense denounced in section 496, Penal Code, there must be proof that (1) the property found in the possession of the accused was acquired by means of theft or extortion; (2) the accused received, concealed or withheld such property from, its owners; and (3) the accused knew that the property was stolen (People v. Scaggs, 153 Cal.App.2d 339 , 352 [ 314 P.2d 793 ]).” (People v. Candiotto, 183 Cal.App.2d 348 , 349 [ 6 Cal.Rptr. 876 ].) The first of the foregoing three elements was established by the testimony of Deena Rosen whose 1965 Corvette, identification number 120741, was stolen and' subsequently stripped. The second was established by the testimony of Officer Wycoff that defendant was arrested in a 1955 Chevrolet owned by

Finally, appellant claims that evidence of the missing Corvette parts found in his car was inadmissible because he was not lawfully arrested. Citing People v. Sesslin, 68 Cal.2d 418 [ 67 Cal.Rptr. 409 , 439 P.2d 321 ], he argues that his arrest was invalid since the warrant which provided the basis therefor was probably not based on an affidavit alleging sufficient facts upon which the magistrate could conclude probable cause exists therefor. Appellant has failed to properly demonstrate that the language of the affidavit providing the basis for the first warrant would not have provided sufficient probable cause for its issuance; the affidavit is not in the record and we cannot speculate what it might have contained. However, appellant asserts that through his counsel he made “an independent search of the criminal records of the Los Angeles County Superior Court’’ and discovered that the felony complaint underlying the warrant for his arrest does not meet the Sesslin test, and attaches a copy thereof to his brief as Exhibit “A.”

The judgment is affirmed.

Wood, J., and Fourt, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 19,1969.