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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack HYDE, Defendant and Appellant.*

Cr. 5892.

Decided: November 08, 1957

Jack Hyde, in pro. per. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

By amended information Jack Hyde was charged in Count I will burglary and in Count II with receiving stolen property. It was also alleged that he had suffered two prior felony convictions and had served separate terms of imprisonment in state prison therefor, to wit, convictions of robbery in California in 1947 and 1952. Defendant pleaded not guilty and admitted the prior convictions as alleged in the amended information. Trial was to a jury which found him guilty of receiving stolen property but not guilty of burglary. Defendant's motion for a new trial was denied. Probation and likewise denied and Hyde was sentenced to state prison for the term prescribed by law. He appeals from the judgment and the order denying him a new trial.

The conviction of receiving stolen property was based upon evidence of the following facts. On the morning of August 11, 1956, between 70 and 80 pieces of camera equipment of the value of over $13,000 were found to be missing from the Pan Pacific Camera Company in Los Angeles. Mrs. Libby Kaner, owner of the store, testified that the missing equipment had been on the shelves at closing time on the preceding evening and that she had given no one permission to remove the items. Among the missing equipment was a Reflecta camera, a Dittar camera and a Revere stereo camera.

At about 11 p. m. on the night of August 16, Officers Johnson and Atkisson of the Los Angeles Police Department were on duty in a patrol car at the intersection of Pico Boulevard and Clark Drive in the City of Los Angeles. They observed two cars, one closely following the other, make a left turn from Clark Drive onto Pico Boulevard. The two cars then turned south off Pico onto Robertson Boulevard. Both automobiles failed to stop for a pedestrian who was attempting to cross Robertson in the crosswalk. The officers stopped the nearest automobile and Johnson stepped out of the patrol car to speak to the driver. Officer Atkisson drove on alone and halted the other automobile about half a block away.

Officer Johnson testified that as he approached the car defendant stepped out, leaving the door standing open, and asked what was wrong. Johnson told him that he had failed to stop for a pedestrian in a crosswalk; defendant said that he had stopped. At the officer's request defendant exhibited his driver's license. Johnson asked defendant who owned the car and Hyde said it belonged to his wife. Johnson looked on the steering column for the registration slip but did not find one. Defendant showed the officer a registration slip which he carried in his wallet.

Johnson then shined his flashlight into the interior of the car and observed six gunny sacks which completely filled the rear floor and seat. He saw a camera protruding from one of the sacks and some shiny metal beneath it. Johnson asked defendant what was in the sack. Hyde said he was moving to a rented house in Culver City and that the sacks contained personal belongings. He then admitted that there were cameras in the gunny sacks. Johnson asked defendant what business he was in and Hyde replied that he was a camera salesman. Johnson said that it was strange for a man in the camera business to carry cameras around in a gunny sack in the back-end of his car. Defendant said: ‘Well, there is no use talking about it here.’ The officer said: ‘I think you are a burglar. A few nights ago * * * I read a teletype where a camera store in Hollywood had been burglarized and approximately $20,000 worth of camera equipment was taken.’ Johnson then arrested defendant on suspicion of burglary.

Shortly thereafter, Officer Atkisson returned to the scene and asked defendant where he had obtained the cameras and defendant replied that he had nothing to say and that he wanted to go to the police station. En route to the station in the patrol car Officer Johnson again asked defendant where he had obtained the cameras. Defendant said: ‘A fellow had given them to me’ but when asked to identify this person he said: ‘Well, I would be a raving idiot to tell you who. I don't want to talk to you. I want to talk to some one higher up who could do something good.’ At the police station the gunny sacks were removed from defendant's car and a list made of their contents. The gunny sacks were found to contain the three cameras subsequently identified as being among those missing from the camera shop on August 11. The cameras were received in evidence.

Detective Northrup of the Los Angeles Police Department was the investigating officer in the case. He testified that he had a conversation with defendant on the morning of August 17 at the police station. He asked defendant about the cameras and told him that they had been taken in a burglary. Defendant replied that he could say nothing about the burglary except that he did not commit it. He said that he was merely delivering the equipment for some one else and that he was ‘going to get a couple of bills' for his services. He also said: ‘I cannot tell you who I picked it up from or who I was going to deliver it to.’

Joe Larios testified on behalf of defendant. He stated that on August 11th or 12th he received about 60 cameras and other photographic equipment in six burlap bags in his hotel room at the Missouri Hotel in Los Angeles. The cameras were delivered to him by one Tom McGowan. Several days later McGowan called Larios and told him that he had arranged to sell the cameras and to have them delivered to one Red Cole at a tavern near Pico and Robertson Boulevards. In the early evening of August 16th Larios telephoned defendant and asked him to make a delivery with his car in return for $10. Defendant did not ask what he was to deliver and Larios did not tell him during the telephone conversation. Just before 8 p. m. defendant parked his car in the lot adjoining the Missouri Hotel and went to a drugstore to buy a pack of cigarettes while Larios loaded the gunny sacks into the car. Hyde returned as Larios was loading the last two sacks and asked what Larios was putting in the automobile—‘What is it, melons?’ Larios replied ‘No, cameras.’ Larios stated that he suspected that the gunny sacks contained stolen property but that he did not tell this to defendant. Larios told defendant to deliver the cameras to Cole at the tavern.

Defendant, testifying in his own behalf, stated that he had previously delivered merchandise for Larios in his car. He denied knowing that the cameras were stolen. After picking up the cameras he drove to the tavern, where he waited for several hours but did not find Cole. He left the tavern and was driving on Robertson Boulevard when he was stopped by the officers. He denied telling Officer Johnson that he was moving, that the gunny sacks contained his personal belongings, or that he was a camera salesman. He stated that he told the officers he was delivering the cameras for another man who sold cameras. He admitted making a statement to the officers that if he told anything about this he would be a raving idiot, but he only used the phrase after being beaten at the police station. He first learned that the cameras were stolen property when he was shown a teletype at the station. He admitted telling Officer Northrup that he could not say anything about the burglary except that he did not do it, but he denied telling Northrup that he was to get two bills which ‘in the vernacular’ would mean $200.

Upon request for appointment of counsel on the present appeal the court referred the matter to the Los Angeles Bar Association Committee on Criminal Appeals for report to the court as to possible merit in the appeal. The matter was assigned to a member of the committee who has made written report to the court stating that the record had been examined and that in the opinion of the attorney it disclosed no meritorious ground of appeal. Defendant was duly so advised and his time to file a brief was substantially extended. He has filed a brief in propria persona. It is adequate as a presentation of all the points that could be urged in his behalf. We have made a thorough examination of the record and have discovered no insufficiency of the evidence and no error at the trial.

Defendant argues the following points in his brief: (1) The evidence was insufficient to support the verdict; (2) The court erred in permitting the officers to testify as to their conversations with him; (3) The court erred in admitting evidence obtained through an unlawful search and seizure; (4) He was denied due process of law.

The first contention to be noticed is that there was insufficient evidence to show that defendant knew he was dealing with stolen property. The argument is without merit.

Section 496 of the Penal Code provides in part: ‘1. Every person who buys or receives any property which has been stolen * * *, knowing the same to be * * * stolen * * *, is punishable by imprisonment * * *.’ Whether defendant knew that the cameras were stolen property was a question of fact to be resolved from all the circumstances in evidence. People v. Boyden, 116 Cal.App.2d 278, 288, 253 P.2d 773. It was unnecessary for the People to prove actual and positive knowledge on his part, as the element of guilty knowledge may be shown by evidence from which such knowledge may be inferred. People v. Juehling, 10 Cal.App.2d 527, 531, 52 P.2d 520. It is well-settled that guilty knowledge may be inferred from the circumstance that when questioned about the ownership of the stolen property, the accused gave false and evasive answers. People v. Boyden, supra, 116 Cal.App.2d 278, 288, 253 P.2d 773, and cases cited. From the conflicting statements made by Hyde to Officers Johnson, Atkisson and Northrup in accounting for the presence of the cameras in his car, the jurors could reasonably conclude that he knew the cameras were stolen property. Although defendant denied having had guilty knowledge the effect to be given to his testimony was a matter for the determination of the jury. People v. Toliver, 90 Cal.App.2d 58, 61, 202 P.2d 301. The jurors were likewise not required, as a matter of law, to give credence to the testimony of Larios that he did not tell defendant that he thought the cameras had been stolen. People v. Gould, 111 Cal.App.2d 1, 6, 243 P.2d 809. In our opinion the verdict was amply supported by the evidence.

Defendant's second contention is that the court erred in permitting the officers to testify as to the statements made by him while being questioned about his possession of the stolen cameras. In this connection defendant argues that the officers' testimony as to his replies was not corroborated by other evidence. The argument cannot be maintained. Corroboration is not a statutory requirement in a prosecution for receiving stolen property. Defendant quotes extensively from People v. Reingold, 87 Cal.App.2d 382, 197 P.2d 175, but that case is not in point. The Reingold case discusses the rule requiring the corroboration of accomplice testimony and it cannot be contended that the officers were accomplices of defendant in committing the offense for which he was on trial. Pen.Code, § 1111.

A third contention is that the cameras taken by the officers from defendant's car should have been excluded from evidence for the reason that they were obtained through an unlawful search and seizure. There are several reasons why the argument is without merit. Defendant was represented by counsel at the trial and his counsel did not object to the introduction of the cameras in evidence. It is established that the admissibility of evidence allegedly obtained by means of an unlawful search and seizure will not be reviewed on appeal in the absence of a proper objection in the trial court. People v. Kitchens, 46 Cal.2d 260, 262–263, 294 P.2d 17. Further, there can be no doubt of the lawfulness of the officers' actions in the present case. They had the right of halt defendant's car after they saw him commit a traffic violation. The car door was standing open and when Officer Johnson looked inside, the gunny sacks and at least one of the cameras were clearly visible. What the officer saw while looking through the open car door was admissible in evidence and was not obtained by an unreasonable search. The presence of the cameras in gunny sacks in the rear of defendant's car, together with defendant's evasive replies to Johnson's questions, warranted the officer in a reasonable belief that the cameras were stolen property and that defendant was implicated in the theft. The officer was justified in arresting defendant and the cameras were lawfully seized as an incident to the arrest. People v. Boyles, 45 Cal.2d 652, 655, 290 P.2d 535; People v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582.

Defendant's final contention is that he was denied due process of law in that he was beaten by the arresting officers. Defendant testified to that effect and C. T. Van Daley, a trusty at the county jail, testified that he saw a swelling on defendant's head but that Hyde did not ask for medical care. The officers denied striking defendant. On being asked on direct examination whether he had admitted his guilt as a result of physical violence, defendant stated that he never told the officers that he knew the cameras were stolen. No claim was made in the court below and none is advanced in defendant's brief that he was coerced into making a confession or any admission of guilt because of police brutality. There is, therefore, no merit to the argument that the alleged beatings deprived him of a fair trial.

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

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.

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