Reset A A Font size: Print

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander Aragon ROJAS and Joe Hidalgo, Defendants and Appellants.*

Cr. 7072.

Decided: August 22, 1960

Alexander L. Oster, Laguna Beach, for appellants. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

The court, sitting without a jury, convicted defendants Rojas and Hidalgo of having received stolen property in violation of Penal Code, § 496. Hidalgo's motion for a new trial was denied and he was sentenced to state prison. Rojas' motion for a new trial was denied and he was granted probation. They appeal from the judgments (in Rojas' case, the order granting probation), and from the orders denying new trials.

During the night of March 3, 1959 about $4,500 worth of electric conduit was stolen from John Taft Electric Company in Ventura. On March 4 Officer Lovold of the Los Angeles Police Department saw a man named Hall sitting in a car directly opposite a truck which was parked on the street. The body of the truck had a solid front, roof, and sides. There were two doors in the rear which, when open, disclosed it was loaded with electrical conduit. Lovold approached Hall and asked him what he was going to do with the merchandise in the truck. Hall said he intended to sell it to defendant Hidalgo; he (Hidalgo) would duy all electrical materials that he (Hall) could get; and he had had several transactions with him in the past. Hall was placed under arrest and taken to the police building. The truck was moved to the police parking lot.

Later that afternoon, Hall was asked to telephone to Hidalgo. Lovold listened to this conversation: Hall: ‘Joe.’ Hidalgo: ‘Yes.’ Hall: ‘This is Bill. How about the building materials or the conduit? Are you ready for it?’ Hidalgo: ‘No, I don't have the money yet. Call me back about 8:00 o'clock. I have to get some money and I don't have it now.’ Hall called back at 7 o'clock. Lovold listened to this conversation: Hall: ‘Hello, Joe.’ Hidalgo: ‘Yes.’ Hall: ‘This is Bill, how about the material?’ Hidalgo: ‘Yes, you can bring it over. I don't have all the money now but I can give you a part of it now and the rest tomorrow. Bring the material but don't bring the truck to my place of business. Park it a couple of blocks away. Come alone. Be here at 8:00 o'clock.’

Lovold conveyed the information he had to Officer Saville. Saville and Hall drove the truck to the rear of a service station on the southwest corner of State and Marengo Streets in Los Angeles where they parked it and then walked about two blocks to a small electrical shop. They entered the shop. Hidalgo, who was talking on the telephone, held his index finger to his lips and pointed to the back room. After Hidalgo finished telephoning he asked Hall and Saville outside. The three went outside and Hall introduced Saville to Hidalgo as ‘Rudy.’ Hidalgo asked Hall where the other ‘fellows' were. Hall said they were in San Bernardino ‘casing a joint.’ Hidalgo asked and was told where the truck was parked. He said the reason he did not want them ‘to bring the truck to the shop was that his place was ‘hot’ and was being watched by the police.' He asked Saville and Hall to return to the truck and follow him. They returned to the truck and followed Hidalgo, who was in an automobile, mobile, over several streets. Hidalgo stopped, asked Saville and Hall to wait, and left. He returned in about 30 minutes, asked them to get in his car, and had Hall return the keys to the truck. Hall said the back of the truck was not locked. Hidalgo said the truck would not be there long, and it would be all right to put the keys into the ignition. Hidalgo then drove Saville and Hall to another location ‘by way of several back streets.’ On the way, Hidalgo told Hall he had just bought $3,500 ‘worth of stuff’; that was the reason he was short; the last time he ‘got stuff from you guys' he paid Hall $1,460; he had to pay $100 to have it unloaded; he put $1,700 into the load and sold it for $2,000. Hall said ‘this stuff was not ‘hot”; it was from santa Barbara. Hidalgo said, ‘I know you guys will let me make money. You ask $700.00. That's what I am giving you. I haven't seen the stuff yet’; whom Hall split with was his (Hall's) business; in the future he preferred doing business with Hall alone, not to come to the office, to call him, he would instruct him (Hall) ‘where to leave the truck and where he could pick it up later.’ Hidalgo gave Hall $200 and told him to call him the next day at noon and he would tell him where to get the truck and he could get the balance of $500.

Officers Lovold and Bischonden followed the truck from Hidalgo's shop. After Hidalgo, Saville, and Hall had left the truck, defendant Rojas got in and drove it by a roundabout route to a parking area in the rear of a service station which was Rojas' place of business. Rojas got out of the truck, opened the rear end, looked, inside, and left. Later that night Hidalgo and Rojas went to the rear of the truck, opened it, looked at the conduits, closed it, and went across the street to a cafe.

The next morning about 8 o'clock Rojas opened his shop and, with another person, began to unload the truck. After about a third of the conduit had been unloaded, Rojas was placed under arrest. The conduit in the truck was that stolen from John Taft Electric Company in Ventura on March 3, 1959.

In a conversation with Officer Lauritzen, Rojas said he knew the conduit was stolen. $Rojas testified. He denied knowing the conduit was stolen. Hidalgo did not testify or offer any evidence in his behalf other than cross-examination of the People's witnesses.

The first specification of error is that the corpus delicti was not established. It is argued the stolen property was, at the time Hidalgo received it, ‘recovered property,’ that it had lost its character as stolen property at the time it was recovered by the police. Defendants concede that Hall was their accomplice. It may be inferred from the evidence that Hall, Hidalgo, and Rojas entered into an agreement whereby Hall was to steal the conduit and deliver it to defendants. It does not follow from the fact the police took possession of the stolen property for a limited time between the theft and the receipt of the property by Hidalgo that it lost its character as stolen property. It was still stolen property at the time Hidalgo received it and at the time Rojas took it. See People v. Lima, 25 Cal.2d 573, 577–578, 154 P.2d 698; People v. Morrow, 127 Cal.App.2d 293, 295–296, 273 P.2d 696. The corpus delicti was established.

Defendants contend it was error to admit the testimony of Officer Lovold as to the telephone conversations had by Hall. The only argument made is that admitting the conversations was in violation of Penal Code, § 640, and the Federal Communications Act. 47 U.S.C.A. § 605. The conversations were not objected to on those grounds at the trial. They were not admitted against Rojas. The only objection of Hidalgo was ‘that there is no proof to show that Hidalgo took part in this conversation.’ The failure to object on the grounds now urged constitutes a waiver thereof. (Witkin, California Evidence, 29, § 20(3), 478, § 427.) Hidalgo is deemed to have waived all grounds of objection not stated, and they may not be raised for the first time on review. People v. Porter, 105 Cal.App.2d 324, 331, 233 P.2d 102; People v. Modell, 143 CalApp.2d 724, 730, 300 P.2d 204.

The next specification of error is that the testimony of Hall was not corroborated, as required by Penal Code, § 1111. The point is so palpably without merit as not to require discussion. Hall was not called as a witness by the People. His testimony was introduced by defendants. The convictions were not had on the testimony of Hall. They were had on the testimony of Mr. Taft and the police officers.

The final specification of error is that defendants were entrapped into committing the offenses. The point is untenable. There is no entrapment if the intent to commit the offense originated in the mind of the accused. People v. Malotte, 46 Cal.2d 59, 64–65, 292 P.2d 517. Merely affording an opportunity to a defendant to violate the law is not entrapment. People v. Benford, 53 Cal.2d 1, 345 P.2d 928. The evidence showed that defendants and Hall had the unlawful agreement prior to the intervention of the police. It also showed that defendants were in the business of receiving stolen property. The fact that the police asked Hall to telephone Hidalgo does not constitute entrapment.

The judgments and orders appealed from are affirmed.

VALLEÉ, Justice.

SHINN, P. J., and FORD, J., concur. Rehearing denied; FORD, J., dissenting.