PEOPLE v. Harold Sylvester Lumar, Defendant and Appellant.

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Sylvester Lumar, Defendant and Appellant.

Cr. 13782.

Decided: February 07, 1968

Albert I. Kaufman, Woodland Hills, under appointment by Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Stephen H. Silver, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment of conviction of grand theft.

In an information filed in Los Angeles on February 23, 1967, defendant was charged in count I with grand theft in that he did on January 28, 1967, feloniously take an automobile, the personal property of Budget Rent–A–Car;  in count II he was charged with a violation of the provisions of section 10851, Vehicle Code, on January 28, 1967.   It was further charged that defendant previously had been convicted of a felony, namely, of violating the provisions of section 487, subdivision 1, Penal Code, on March 29, 1960, and had served a term in prison therefor.   Defendant pleaded not guilty.   A jury trial was waived and the cause was submitted upon the testimony contained in the transcript of the preliminary hearing, the further testimony of witnesses for the prosecution and the testimony of defendant.   The defendant was found guilty as charged in count I of the information.   Count II was dismissed in the interest of justice.   Although the testimony of defendant himself was:  “* * * I have been convicted of a felony.   And he ask me did I do any big time.   And I told him yes, I have.   Was I still on parole?   I told him no, I had a discharge.” and although the judge said at the time of sentence, “He has been in the penitentiary on one occasion.   He has been convicted of many lesser type offenses, and he has shown in many ways that he will not overcome his inclination toward anti-social conduct.” the charge of the prior conviction was withdrawn by the prosecutor.   Defendant was sentenced to the state prison as a first offender.   A timely notice of appeal from the judgment was filed.

A résumé of some of the facts is as follows:  On January 28, 1967, a 1965 white Ford Mustang automobile bearing a Nevada license number C 73784 was in possession of Budget Rent-A-Car at its premises on Wilshire Boulevard, Beverly Hills.   During the day the car disappeared.   No one had been given permission to take the car from the premises.   About a week previous to this time one of the partners of Budget Rent-A-Car had been approached by defendant at the premises and inquiry was made by defendant as to whether certain cars were for sale.

At about 9:30 a.m. February 3, 1967, Officer Smith of Los Angeles was driving a police car on Temple Street and heard a police department broadcast to the effect that a male Negro, wearing a red sweater and brown pants, about 26 years of age, who might be in possession of a gun was in the neighborhood of Temple and Mountain View Streets.   The officer was not aware of the location of Mountain View Street and was looking for the same when a man in a pick-up truck signalled to him to pull over and stop.   The man from the pick-up truck came to the police car and advised Officer Smith that he had just reported to the Rampart police station with reference to a man “that he had seen with a gun,” that the person was in a parked car “down the block.”   The officer drove the police car to the rear of the Ford Mustang car in which defendant was seated.   The Mustang car then carried California license plates PRZ 066.   The officer searched the car for a gun and found none.   The officer noticed that there was no registration slip in the car and he asked defendant where the slip was located and defendant stated that it was in the glove compartment.   Defendant told the officers that he had just recently received the car from a repair shop and possibly the slip had been removed while at such shop.   Officer Smith then turned the investigation over to other policemen who had arrived upon the scene.   Officer Crowe ascertained that the license number PRZ 066 was registered to a 1958 Ford car.   Defendant was then placed under arrest and advised fully of his constitutional rights.   Defendant responded that he understood his rights and that the Ford Mustang was his automobile, that he had purchased it new and that he could not understand why the license plates on the car were not registered to it.

On February 6, 1967, Officer Smith, of the Beverly Hills Police Department, talked with defendant after advising defendant of all of his constitutional rights as of that date.   Officer Smith inquired about the defendants' possession of the Mustang car and defendant stated that he had been hitchhiking and was picked up by a man driving the Mustang car, that he, the defendant, recognized the car as being the one which had been stolen from Budget Rent–A–Car and had taken it from the driver in order to return it to the owners.   defendant indicated that he did not desire to talk about the change of license plates on the car.

At the time of trial defendant testified that he had never told an officer that the car was his or that he had purchased it or that he had driven the car after having been picked up as a hitchhiker.   Further, that had never seen the car before his arrest.

Appellant now raises in effect two questions:  The first, whether there is sufficient evidence to support the judgment, and the second, whether this court should substitute its judgment on the facts for that of the trial judge.

There is no merit whatsoever in appellant's position in this appeal and, like so many criminal appeals of no substance these days, simply serves to clog the Court of Appeal calendar and consumes time that might well be expended on meritorious cases.

 It is not necessary in securing a conviction that some person see appellant take the car in the first instance.  (People v. Phelps, 192 Cal.App.2d 12, 14–15, 13 Cal.Rptr. 383;  People v. Peterson, 251 Cal.App.2d—,* 59 Cal.Rptr. 694.)

 There was ample corroborative evidence of inculpating circumstances in this case, such as, for example, false and misleading accounts of possession.   (People v. Machabie, 33 Cal.2d 67, 69–70, 198 P.2d 681;  People v. Phelps, supra;  People v. Conrad, 125 Cal.App.2d 184, 185, 270 P.2d 31;  People v. Jeffries, 47 Cal.App.2d 801, 808, 119 P.2d 190.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  FN* Advance Report Citation:  251 A.C.A. 767.

FOURT, Associate Justice.

WOOD, P.J., and LILLIE, J., concur.