PEOPLE v. MASSIE

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil MASSIE, Defendant and Appellant.

Cr. 9967.

Decided: May 04, 1965

Eugene V. McPherson, Canoga Park, under appointment by the District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

In an amended information the defendant was accused of burglary in that he willfully entered a vehicle, to wit, a semitrailer used in conjunction with a motor vehicle, to wit, a motor truck and semitrailer combination, the property of John M. Collier, the doors of said vehicle being locked, and with the intent then and there to commit theft.

In a jury trial, defendant was found guilty of burglary in the first degree. Probation was denied, and he was sentenced to imprisonment in the state prison.

Appellant contends that the court erred in giving certain jury instructions, and in granting permission to amend the information. He also contends that the evidence is insufficient to support the judgment.

On December 3, 1963, about 10 p.m., Mr. Collier, a truck driver in the employ of the Thrifty Drug Company, drove a trucktractor, to which were attached two 22-foot semitrailers, containing drug store merchandise, to a place at the rear of a Thrifty Drug Store in Compton and parked the vehicle there. He had driven the vehicle from the Thrifty Drug Company's warehouse in Los Angeles to that store for the purpose of delivering some of the merchandise there.

The first trailer (the one next to the tractor) had a double-door at the rear end and a single door on each side. Each of the doors on this trailer was sealed by a metal clip, which is a piece or strip of pliable metal about six inches long, and one-fourth inch wide, which ‘goes around the hasp over the handle of the door’—and one end of the strip is placed through a clip at the other end of the strip, and then the clip locks itself. When the doors are sealed with a clip, it is necessary to use force to break the metal seal in order to open the doors.

The second or rear trailer had a rear door and a side door, which doors were locked with devices or padlocks which could be opened only by using a key.

When the driver left the warehouse the doors of the trailers were sealed or locked and he did not stop the vehicle, except for traffic requirements, until he arrived at the Compton store. After parking the vehicle there, he went into the store to ask the manager to unlock the trailers so that he could make the deliveries. When he left the vehicle to enter the store, the doors of the trailers were sealed or locked in the manner above described, but the doors of the tractor were not locked. The assistant manager Mr. Banks, after obtaining the key to the trailer, proceeded with Mr. Collier and another employee, Mr. Collado, to the trailers. As they approached the trailers, they saw the defendant Massie standing inside the first trailer and they saw another man, who was outside that trailer, holding the side door of the trailer open. The metal seal on that door had been broken. Then the man who was holding the door ran away. The defendant jumped out of the trailer and started walking away. The employees asked him to stop, but he kept walking and then he ran across the street. During this time the employees were following him. When they were within a few feet of him, he pulled out a knife and began swinging it. Mr. Collado went to the store and returned in his automobile to the other employees, who entered the automobile, and then they followed defendant to a street corner, where they again approached him. At that time Mr. Collado had a tire iron in his hand and the two other employees had similar weapons. They compelled the defendant to put the knife on the ground, and to drop a pair of leather gloves which he was wearing and which had been in the tractor cab when Mr. Collier went into the store. Then two police officers, who were on patrol duty, arrived there in a police car and arrested defendant.

Officer Parker testified that about five minutes after the arrest, while he and the defendant were in the back seat of the police car, he asked the defendant to relate what had occurred just prior to the arrest. Defendant said that he and Henry Eberhardt had been in the drug store where Eberhardt shoplifted a quart of whiskey, and then they went outside near the truck; Eberhardt found leather gloves in the cab of the truck; they agreed to break into the truck and that Eberhardt would get inside, pitch things out to defendant, and then they would leave; both of them entered the truck, after Eberhardt broke the seal; soon thereafter the employees came and chased them from the truck.

Officer Morrison testified that on December 5 (two days after the arrest), in a conversation with defendant at the police station, the defendant said that he and Henry Eberhardt were in the drug store and Henry took a bottle of whiskey, and they left the store; Henry took a pair of gloves from the cab of the parked truck and handed them to defendant; Henry broke the seal on the trailer door and got into the trailer, but defendant did not enter it; when the employees came out, Henry ran from the scene, but defendant walked away; he was intoxicated when this incident occurred; and he had swung a knife at the employees in a threatening manner.

Defendant testified that Eberhardt took the gloves from the cab of the truck and handed them to defendant, who returned then to Eberhardt; defendant did not know whether Eberhardt broke the seal on the truck, but Eberhardt went into the truck; defendant did not go inside the truck; when the employees came there, Eberhardt jumped out of the truck and ran away, but defendant walked down the street; the employees asked whether he was burglarizing the truck; he said he did not know anything about the truck or burglarizing; the employees wanted to hold him, but he said, ‘No, you are not going to hold me.’; he ran across the street because some cars were coming; when the employees were first following him, they did not have any weapons, but later they had ‘hook blade knives'; one of the employees flashed a light on him and asked whether he had a knife; then defendant threw a knife in the grass; at this time, the officers came and put him in the police car; he did not have a conversation with Officer Parker in the car; he did not tell Officer Morrison that he was inside the truck. On cross-examination, he said that when he was arrested he had the gloves in his hand; that he knew that Eberhardt was inside the truck to do some stealing; that he did talk to Officer Parker while they were in the car, but defendant did not say that he and Eberhardt agreed to break into the truck.

Appellant contends that the court erred in giving the following two instructions: (1) ‘* * * that the word ‘lock’ means to make fast by the interlinking or interlacing of parts.' (2) ‘If you find as a matter of fact that all the doors of the semi-trailer were secured with metal seals such as Exhibit No. 1 in evidence prior to the entry, and that application of some force was required to break the seal to permit entry to the interior of the vehicle through the door, then such vehicle was locked within the meaning of the law.’ Appellant agrues that these are instructions on questions of fact, and that they instruct the jury that a seal is a lock. Section 459 of the Penal Code provides, in part: ‘Every person who enters any house * * * or other building * * * trailer coach as defined by the Vehicle Code, vehicle as defined by said code when the doors of such vehicle are locked, * * * with intent to commit * * * larceny or any felony is guilty of burglary.’ (Italics added.) In the present case, the evidence was uncontradicted that, when the driver entered the store, each door of the first trailer was sealed with a pliable metal strip ‘around the hasp over the handle of the door,’ with one end of the strip through a self-locking clip at the other end of the strip. The definition of the word ‘lock,’ as stated in the given instruction, was a correct definition of that word. The other instruction, above quoted, was to the effect that if the jury found as a matter of fact that all the doors of the semitrailer (first trailer) were secured with metal seals, as described in the evidence, the vehicle was locked within the meaning of said code section. The matter of construing the section was a question of law for the court. It does not appear that the court instructed the jury as to what the facts were with respect to questions of fact. It appears that the court was instructing the jury that if it found certain facts, then and in that event the court was declaring as a matter of law that the trailer was a locked vehicle within the meaning of said code section. Under the evidence, it was proper to instruct the jury that the trailer was locked.

Appellant argues further, however, to the effect that even if such sealing of the trailer amounted to a locking of the trailer, the ‘vehicle,’ which he asserts consisted of the truck-tractor and the trailers, was not a ‘locked vehicle,’ since the doors of the truck-tractor were not locked. In People v. Toomes, 148 Cal.App.2d 465, 306 P.2d 953, wherein the doors and the trunk of an automobile were locked and the defendant broke the trunk open and stole a tire therefrom, it was held that the act of entering the locked trunk for the purpose of theft was burglary. In that case the burglarized part (trunk) of the automobile was a separate enclosed part which could not be entered from the passenger part of the vehicle. In the present case the trailer was a separate enclosed part of the tractortrailer combination and it could not be entered from the passenger or cab part of the tractor. As above indicated, section 459 of the Penal Code, in specifying various things or places which may be the subjects of burglary, states in part: a ‘vehicle as defined by said code [Vehicle Code] when the doors of such vehicle are locked.’ (Italics added.) Section 550 of the Vehicle Code defines ‘semitrailer’ as ‘* * * a vehicle designed for carrying persons or property, used in conjunction with a motor vehicle, and so constructed that some part of its weight and that of its load rests upon, or is carried by, another vehicle.’ (Italics added.) The court, in giving the said instruction, properly referred to the semitrailer as ‘a vehicle.’ The court did not err in giving said instruction, above quoted, to the effect that if the jury found certain facts, then and in that event the trailer was a ‘locked vehicle.’

Appellant contends further that the court should have given an additional instruction, namely, Instruction 115–B of California Jury Instructions Criminal, concerning conviction of a lesser degree of the crime of burglary. Appellant did not request the trial court to give the instruction. Under the circumstances, the court was not required to give such an instruction. (See People v. Walker, 155 Cal.App.2d 273, 275, 318 P.2d 77.) The court gave an instruction to the effect that if the jury found the defendant guilty of the crime of burglary it should determine the degree of the crime; that evidence had been admitted from which the jury could conclude that the defendant was armed with a deadly weapon and that in the commission of the crime he assaulted a person; and that the degree may be found to be of the first degree if the proof shows beyond a reasonable doubt that the defendant committed one or both of such acts.

Appellant also contends that the court erred in allowing the information to be amended. The original information alleged, in part, that defendant committed burglary in that he ‘did willfully enter a motor vehicle, to wit, a semi-truck and trailer combination * * * the doors of said motor vehicle being locked * * * with the intent * * * to commit theft.’ During the trial (while the sixth witness for the prosecution was testifying), upon motion of the prosecution and over the objection of the defendant, the information was amended by interlineation to read that defendant ‘did willfully enter a vehicle, to wit, a semi-trailer used in conjunction with a motor vehicle, to wit, a motor truck and semi-trailer combination * * * the doors of said vehicle being locked * * * with the intent * * * to commit theft.’ Appellant argues that the amendment constituted a substantial change in the information and required a plea to the amended information and necessitated a continuance. Defendant did not request a continuance, and, at the time of trial, apparently did not consider that he had been prejudiced. It does not appear that the rights of defendant were prejudiced by the amendment. ‘Whether the prosecution should be permitted to amend an information is a matter within the sound discretion of the trial court and its discretion will not be overruled in the absence of a clear abuse thereof.’ (People v. Baldwin, 191 Cal.App.2d 83, 87, 12 Cal.Rptr. 365, 368—reaffirmed on rehearing in1 228 Cal.App.2d 840, ——, 39 Cal.Rptr. 355.) It was not necessary for defendant to enter another plea. He had pleaded not guilty to the information and he retained the benefit of that plea to the amended information. The court did not abuse its discretion in allowing the amendment.

Appellant contends further that the amended information does not allege an offense. As hereinabove indicated, section 459 of the Penal Code proscribes the entry of a ‘vehicle as defined by said code [Vehicle Code] when the doors of such vehicle are locked.’ Also, as above shown, section 550 of the Vehicle Code refers to a semitrailer as a ‘vehicle.’ The amended information alleges the crime of burglary.

Appellant asserts further that the evidence was insufficient to support the judgment. The substance of the evidence has been set forth hereinabove. It is clear that the evidence amply supports the judgment.

The judgment is affirmed.

FOOTNOTES

1.  Advance Report Citation, 228 A.C.A. 119.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.