IN RE: KEVIN M.

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Court of Appeal, Second District, Division 5, California.

IN RE: KEVIN M., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. KEVIN M., Defendant and Appellant.

Cr. 35685.

Decided: May 29, 1981

Tibor I. Toczauer, Tarzana, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., William R. Pounders and William H. Davis, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Kevin M., a minor, appeals from an order adjudging him to be a ward of the juvenile court, based on a finding that he came within the provisions of section 602 of the Welfare and Institutions Code in that he had committed burglary.

FACTS

Trader Joe's market in Eagle Rock was burglarized during the night preceding April 15, 1979.   Bottles of liquor were missing.   A window facing Colorado Boulevard was broken.   The liquor had been taken from a shelf directly in front of the broken window.

At about 1:30 a. m. on April 16, 1979, Officer Roy Wagner of the Los Angeles Police Department went to a home at 15501/212 Colorado Boulevard in response to a radio call regarding a “family dispute.”   Trader Joe's is “located approximately next-door” to the home in question.   On arrival Wagner was met by Mrs. Marie Stephens who told him that she owned the home, that her grandson—Kevin—lived with her, that he had friends at the house, that she wanted his friends to leave and her grandson to go to bed, but that he had locked her out of his bedroom.   She did not say how many friends were in the bedroom.

After being invited into the house, the officer was shown the door to Kevin's bedroom.   He knocked and the door was opened by Kevin.   Another minor, later identified as Farel M., was in the room sitting on a small armchair directly in front of a closet door.   A crock bottle of sour mash whisky was on the floor.   After some conversation with the two minors, Wagner told Farel M., to comply with Mrs. Stephens' wishes to leave.   As Farel M. got out of his chair, Wagner opened the closet door to see whether any other friends of Kevin's were in the closet.   No others were;  but Wagner did see seven half-gallons of Scotch plus a full gallon of Chivas Regal on the floor.   Farel M. claimed that he had bought the liquor at the Beverage Hut.   The liquor had an estimated value of approximately $200.

Realizing that the juvenile was not old enough to purchase the liquor from a store and because of its cost, Officer Wagner was suspicious and called the Northeast police station to check on burglaries involving the theft of liquor.   He was advised that Trader Joe's located next door to appellant's house had been burglarized the previous night and that liquor had been taken.   He returned to where appellant and Farel M. were waiting and questioned Farel M. more closely as to where and when he bought the liquor and how much he paid.   He examined the liquor bottles and saw green stickers on them which bore the name Trader Joe's and were later identified as being loot from the Trader Joe's burglary.   He then arrested appellant and Farel M.

At the Northeast station Detective Paul Zigan advised Farel M. of his rights and questioned him.   Farel M. told Detective Zigan that on his way to appellant's house at approximately 4 p. m. the previous day he walked by Trader Joe's and noticed that the window had been boarded up.   When he arrived at appellant's house, he went to his bedroom and appellant showed him the liquor in the closet.   Farel M. put “two and two together” and determined that appellant had gotten the liquor from Trader Joe's.   Appellant told him it had been Farel M.'s brother's idea and that the two of them had smashed the window and taken the liquor.

At the trial Farel M. was called by the People as a witness.   However, he testified that he went to Kevin's home at about 3 p. m. on April 15.   He walked past Trader Joe's but did not notice anything unusual, such as a broken or boarded up window.   In Kevin's home the two boys “listened to music and that was all.”   He saw no liquor either in the closet or in the room.   He testified further that he could not remember telling Zigan that the window at trader Joe's was boarded up, or that Kevin showed him liquor with Trader Joe's label on the bottles, stored in the closet.

Officer Zigan then took the witness stand and testified regarding his interrogation of Farel M. after his arrest.   He testified that after advising Farel M. of his constitutional rights he obtained a statement to the following effect: “[H]e stated that he was on his way to Kevin's house at about 4:00 P.M. in the afternoon, that as he walked by Trader Joe's Liquor Store, he noticed the window had been boarded up.  [¶] He stated that when he came over to Kevin's house and went inside the bedroom, Kevin showed him the liquor inside of his closet.  [¶] Farel [M.] indicated at that time, he put two and two together and determined that Kevin had possession of the liquor, as a result of the window smash at Trader Joe's.  [¶] ․ [¶] He made statements regarding what Kevin had told him about the fact that it was Robert [M.‘s] idea to hit Trader Joe's, because it had been done about two weeks prior, successfully and Robert and Kevin went over together and committed the burglary at Trader Joe's.”  (Emphasis added.)

ISSUES

Appellate counsel presents three basic issues:  (1) that the court refused to consider a defense motion to suppress the liquor found in the closet and that in any event, its seizure was illegal;  (2) that the court erred in admitting the italicized portion of Farel M.'s statement to Officer Zigan as a prior inconsistent statement;  and (3) that, with or without the Farel M. statement, the evidence is insufficient to support the conviction.

DISCUSSION

 The claim that the trial court refused to consider a motion to suppress on its merits rests on a misreading of the record.   There was some argument whether Kevin was late making his motion, but it is clear that the trial court overruled the deputy district attorney on that point.   In fact, much of the testimony admitted would have been quite irrelevant, had the court foreclosed appellant from raising the issue.

It is clear that the opening of the closet door was amply justified.   Mrs. Stephens had told the officer that “friends”—plural—were with her grandson and that she wanted them to leave.   She was obviously enlisting his aid toward that end and showed him the bedroom door.   When the officer noticed only one “friend” in the bedroom, he opened the closet door “to see if there were any more juveniles in there.”  (See People v. Block, 6 Cal.3d 239, 245, 103 Cal.Rptr. 281, 499 P.2d 961.)   Officer Wagner had express and implied permission to do precisely what he did.

Appellant's second point, relating to the admissibility of Officer Zigan's testimony concerning Farel M.'s statement to him, also is without merit.   He contends that Farel M.'s prior statement to Officer Zigan was not inconsistent with his trial testimony (Evid. Code, § 1235) because Farel M. did not remember what statements he made to the officer.   It was inconsistent, however, with Farel M.'s testimony at trial that he did not notice the liquor store window boarded up and that he saw no liquor either in the closet or in the room.

 We undertake a more detailed analysis, however, of the portion of Officer Zigan's testimony italicized, ante.   Farel M. was not specifically asked while on direct examination whether appellant made a statement to him admitting the burglary at Trader Joe's.   However, this does not render Zigan's testimony inadmissible in the circumstances of this case.   Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a prior inconsistent statement.  (People v. Green, 3 Cal.3d 981, 988, 92 Cal.Rptr. 494, 479 P.2d 990.)   Here Farel M. denied even seeing any liquor in the room or in the closet, which is totally inconsistent with appellant's admitting to Farel M. that he took the allegedly nonexistent liquor in a burglary.  Evidence Code sections 1235 and 770 do not require that every detail of the prior inconsistent statement be covered by comparable detail during the examination of the witness.   (See People v. Morgan, 87 Cal.App.3d 59, 71, 150 Cal.Rptr. 712 [admissibility upheld where “most” of the statements in a tape recording were inconsistent with the witness' testimony at trial].)  Finally, if defense counsel doubted Officer Zigan's testimony or desired a specific explanation or denial by Farel M. of Farel M.'s statement to Officer Zigan about appellant's statement to him, counsel could have recalled Farel M. to the stand, since the record does not indicate that Farel M. was unconditionally excused as a witness.  (Evid. Code, § 770, subd. (b), and Law Revision Com. comment thereto.)

 Appellant's last contention is that even if Farel M.'s declaration to Officer Zigan was properly admitted, the evidence is insufficient to support the conviction and that without the declaration the insufficiency is that much more flagrant.   We disagree.   Disregarding the Farel M. declaration, we find in addition to possession of very recently stolen liquor:  (1) the extreme proximity in point of distance from the burglarized premises and the closet in which Kevin kept the loot;  (2) the fact that Kevin kept the liquor in an usual place—hidden in a closet;  and (3) the improbability that either Kevin or Farel, both minors, acquired the liquor by purchase.

The judgment is affirmed.

I respectfully dissent.

While my heart tells me that the majority opinion reaches the correct result, the foundation for the admissibility of a hearsay statement under section 1235 of the Evidence Code is that the statement “is inconsistent with [the witness'] testimony at the hearing and is offered in compliance with Section 770.”   The plain fact is that when Farel was on the stand the prosecutor neglected to ask him whether he had heard appellant's confession.   Therefore when Officer Zigan testified to Farel having stated that appellant confessed, there was no inconsistency with any testimony by Farel.

The fact that it is fairly safe to assume that Farel would have denied having heard such a confession is immaterial.   As I understand it the basic rationale for section 1235 is that since the trier of fact hears the inconsistent statement anyway, it might as well be admitted on the merits.   Obviously when the inconsistent statement is not offered because the witness does not give an answer with which it would be inconsistent, the rationale for section 1235 disappears.

Finally, it is no answer to say that appellant himself could have called Farel to question him on whether or not he heard appellant confess.   There obviously is no obligation on a party to lay the foundation for damaging testimony offered by the other side and erroneously admitted.

Were it not for the rule which makes the erroneous admission of a confession reversible error, I would nevertheless vote to affirm.   Even without the confession the evidence against appellant was massive and it is inconceivable that the trier of fact was swayed by Officer Zigan's hearsay testimony concerning a confession allegedly heard by a proven unreliable witness.

ASHBY, Associate Justice.

HASTINGS, J., concurs.

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