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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. DeValle Oike WALKER, Defendant and Appellant.

Cr. 7988.

Decided: December 26, 1962

DeValle Oike Walker, in pro. per. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

Defendant was accused of burglary. He admitted allegations of the information that he had been convicted previously of two felonies (robbery and grand theft). In a jury trial he was found guilty of burglary in the first degree. He was sentenced to state prison. He appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that the evidence was insufficient to support the verdict; that possibly there was illegal search and seizure; that his conviction was based on hearsay evidence; and that he was deprived of a fair trial.

Leon Lemons testified: He was living in an apartment over a garage in Los Angeles, and when he left his apartment after dark about 8 p. m. on May 12, 1961, the windows and two doors were locked and everything was in order. When he returned about 1:30 a. m. that same night, he found his closed door open, shoe boxes all over the floor, an overturned table which had stood under the window, a candle holder knocked over and candle grease all over the room, and a hole had been punched in the window-screen near the hook. Many things were missing—about thirty pairs of his shoes, seven pairs of patent leather shoes and about seven dresses; all of his suits and clothes; a black Motorola 17-inch television, and a white RCA radio and record player. He knew defendant's name, he knew him when he saw him, and they had mutual friends, but he had not given him or anyone permission to go into his apartment and take his property. He reported the burglary to the police, and they came at once and made a report. A few days later he saw a friend of defendant wearing a custom-made orange-colored shirt which had been taken with the other things, and he reported this to the police. About two weeks after the burglary, he was called to the police station, and there in the presence of Officer Smith, he identified as his property the television, radio, some suits and sport coats, and five pairs of shoes. All of these things except the television were returned to him at that time.

On cross-examination, Lemons said he had met defendant at a party about two weeks before the burglary, and again at his church. He did not talk to defendant or telephone him after the burglary, he had never gone anywhere with him, had not gone with him to a store where Kenneth Walker was employed, and had never given defendant any clothes, radio, or television set.

He said that upon the suggestion of Officer Smith he had gone to defendant's home to see whether his mother would return his clothes to him if she had them, but she was not at home, and he telephoned her about it later. He denied that he had told her he had given some clothes to defendant, or had spent the night with him, or that there was a misunderstanding. He also denied that he had told Kenneth Walker in the presence of defendant that he and defendant were going to ‘move’ together or that he had given some clothes to defendant.

Officer Burke testified: That, upon receiving some information form Lemons, on May 17, 1961, he (accompanied by Officer Riley) went to the home of defendant about 9 p. m., and defendant and his mother, Mrs. Herd, came to the door. He talked first with the mother about the offense, and asked her if defendant had brought any property home recently, and she answered in defendant's presence that a few days before, in the evening, he had brought ‘quite a bit of clothing, suits, shoes, a television set and a record player.’ Defendant told him a couple of times to get off the porch, that it was his home and they had no business there. Mrs. Herd asked them if they would like to see the property, he said they would, and she beckoned for them to go into the house, and said the television was in the bedroom. In the bedroom he saw the television set and the record player on a desk beside the bed. He then asked defendant about the suits, and he replied, ‘It's hanging in the closet.’ Officer Burke did not specify which things he was to remove from the closet, except he wanted the things defendant had told him he had bought from a ‘hyp’ for $8.00. Defendant then proceeded to remove from the closet about five pairs of shoes and about 15 (or 17) suits, sport coats, and slacks. Upon being questioned about the television, defendant said that he had bought it at a pawn shop at Western and Vernon, and he had the record player before he went to prison. Officer Burke compared the things brought from the closet with a list of the missing items, took possession of the properties, placed defendant under arrest, and transported him and them to the police station. When he asked again where defendant had gotten the properties, defendant replied: ‘If I told you where I got this stuff you wouldn't believe my story. * * * I guess I'm going back to prison.’

Officer Smith testified that he transported defendant and the properties from one police station to another, and the properties included a television, a record player and quite a bit of clothing. He notified Lemons to come to the station to indentify the properties, and after Lemons did so, the properties were returned to him. Later, Officer Smith and another officer talked with defendant, telling of the charge of burglary against him, and defendant told them that he had not entered Lemons' home or stolen anything, but that on May 16 Lemons had brought the entire amount of property which they had taken from his home and had left it at defendant's address.

Mrs. Herd, the mother of defendant Walker, testified: That Lemons had telephoned her after May 31, the date of the preliminary hearing, and had asked her whether he might come to her house to get the rest of his clothes. She answered that the officers had taken all of the clothing he had there. She asked him if he had given the clothes to her son and he said, ‘Yes, I did,’ and he told her he was sorry about the whole thing. She suggested that Lemons meet with her and her son to ‘thrash this out,’ since they had had such an affair and he had spent the night with Lemons. They then planned a meeting for the three of them on the following day. She denied that she had talked to Lemons' mother, offering to pay her $25 if they would drop the charges against defendant.

Kenneth Walker (not related to defendant) testified: That about the first of May defendant had come with Lemons to the store where he was employed, and had asked him about a job. Lemons said that he was planning to move into his own apartment and he was going to let defendant keep some of his things until the lights and gas were turned on in the apartment. This was the only time he saw defendant and Lemons together.

Kenneth Walker denied that he had sent a typewritten letter to Lemons in which he urged Lemons to withdraw the charges against defendant, and that he would pay off any expense necessary at $10, a week. The letter was unsigned, but had Kenneth Walker's telephone number at the end. Walker (witness) said he had known Lemons for three years, and that Lemons knew his telephone number.

Defendant Walker testified: That he did not break into Lemons' apartment and take the clothes, television set, or record player. He said he first met Lemons at a party where they talked about the manner in which Lemons might help him with his music and the writing and singing of songs, and at this time Lemons told defendant that he was a homosexual. The next day he telephoned Lemons, who came by an a friend's car and took him to the home of Lemons' mother. There they talked about music and planned to go to a rehearsal at Lemons' church the next day, but defendant said he did not have the proper clothing to go there, so Lemons offered to give him some old clothes and then took him to his apartment for defendant to see and try them on. Lemons got out a corduroy suit, a brown tweed suit, and a pair of shoes which defendant tried on. When he asked how much these things would cost, Lemons replied that they would work out some kind of terms. As they started to leave, defendant noticed a portable television set and radio-record player, and in a joking manner asked why Lemons did not let him borrow those, too, and Lemons agreed to let him borrow them but said he definitely wanted them back when the electricity was turned on. They put the things in the automobile, returned to defendant's home and sat around playing records (after he put the clothing on). Then they went to see a friend of Lemons, Kenneth Walker, at the store where he was employed. Defendant asked him about getting some work, and they arranged to keep in touch with each other about it. Defendant intended to pay for the clothes as soon as he obtained work and to return the television set and record player as soon as the electricity was turned on in Lemons' apartment.

Defendant admitted lying to the arresting officers about buying the television set at a pawn shop, but said that he lied to spare his mother the embarrassment of knowing that he was running with homo-sexuals and abnormal people, and he felt that if he told the officers the truth about where he had gotten the things, he would not be believed, since the officers knew that he had a record. He said that the officers were wrong in saying the took about 17 suits from his closet, because there were only two suits and one pair of shoes. In answer to questions by the prosecution, defendant said that he had been twice convicted for felonies, grand theft and armed robbery. He said that Officer Riley had lied about him and tried to bribe him to tell about other persons' crimes.

In rebuttal, Officer Riley denied offering to make it easier for defendant if he would tell about the criminal activities of others, but he did ask defendant if he was mixed up in other crimes, and he also said that they removed about 15 suits of clothes from defendant's closet.

Mrs. Jones, the mother of Lemons, testified in rebuttal that Mrs. Herd had talked to her on the telephone and offered to pay $25 if they would drop the charges against her son.

The evidence shows that a burglary was committed at Lemons' apartment, and that many articles which were stolen from the apartment were found in the possession of defendant. ‘Possession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor's conviction of that burgary. * * * When possession is shown, however, the corroborating evidence may be slight [citations], and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary.’ (People v. Citrino, 46 Cal.2d 284, 288–289, 294 P.2d 32, 35.) In the present case the defendant made false statements to the officers regarding the manner in which he came into possession of the property. He said he bought the television at a pawn shop and he had the record player before he went to prison. He said he bought the clothing from a ‘hyp’ for $8.00. Admittedly those statements were false. At the trial the defendant said that he obtained the things with Lemons' consent—he and Lemons took the clothing, television, and record player to defendant's home. ‘[I]t is well settled that possession, coupled with false statements as to the manner in which the property came into a defendant's possession, may be sufficient to sustain a conviction for burglary.’ (People v. Kefry, 166 Cal.App.2d 179, 189, 332 P.2d 848, 854.) In the present case there was evidence that the burglary was committed during the nighttime. The evidence was sufficient to support the verdict and judgment.

Appellant also contends that possibly there was illegal search and seizure when the stolen articles were found in his home and taken therefrom. The evidence shows that defendant's mother, who also lived there, invited the officers to come into the house to see the articles. Under such circumstances, it cannot properly be concluded that entering the place and viewing the articles was an illegal search of the premises. (See People v. Gorg, 45 Cal.2d 776, 783, 291 P.2d 469.) There was no illegal search or seizure herein. Furthermore, at the trial in the present case, the defendant did not raise an issue as to illegal search and seizure. Under such circumstances, a reviewing court is not required to consider the alleged point. (See People v. Kelsey, 140 Cal.App.2d 722, 723, 295 P.2d 462.)

Appellant contends further to the effect that there was no competent evidence and therefore the conviction was based on hearsay evidence. This contention is without any merit.

Appellant asserts further to the effect that he was deprived of a fair trial. He argues that there was constant reference to his character with regard to homosexual relationships, and that the references indicated bias and prejudice against him. The first reference to homosexuality was made by counsel for defendant during cross-examination of Lemons. Apparently such references in that cross-examination were for the purpose of reflecting adversely upon the character of Lemons. The record does not show that the prosecution imputed, or attempted to impute, homosexuality to defendant. Defendant was accorded a fair trial.

The judgment and the order denying his motion for a new trial are affirmed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.