FOX, P. J.—
Defendant Salazar appeals from his judgment of conviction on three counts of receiving stolen property (Pen. Code, § 496). The first count involved a grinder; the second, an electric drill; and the third, three auto tires and
He was sentenced to the state prison.
For some five years defendant had conducted a body and fender shop at 4700 Floral Drive in East Los Angeles. Edward Womack had been employed at the Baker Metal Finishing Company in Monterey Park. While so employed, he stole from the company the items involved in Counts I and II. He had known defendant for approximately a year and had
assisted the mechanics at defendant’s body shop upon occasion and had also worked on his own car there. He sold the grinder to defendant in the early part of 1960 for approximately ten dollars. Some months later he sold defendant the electric drill for eight dollars. Womack denied that he ever told defendant that either of these items had been stolen.
The tires and wheels involved in Count III were purchased from Jimmy Resa and Isadore Lopez on May 5, 1960. These items had also been stolen. Resa had known defendant for three or four years but had not seen him for approximately a year prior to November 1959. At that time he had a conversation with defendant about getting some property. Resa told Salazar that he was out again, using stuff [narcotics] and starting to hustle again. Resa had two or three new tires and wheels which he sold to Salazar for 10 dollars each. During the course of this conversation defendant remarked to Resa, “Well, it is good to see you because I had been getting stuff from other guys, they only used to bring one tire, or it would be used tires. ’ ’ He then stated, ‘ ‘ I will let you know later what I want.” Resa thereafter brought in an average of two or three tires a day to defendant. He also brought other stolen merchandise and sold it to defendant, such as a TV set, a Polaroid camera and tools. Lopez usually assisted Resa in the thefts. On May 4, the day before the incidents involved in Count III, Salazar told Resa that he was bringing in too many tires with Ford rims, that he needed tires with Chevy rims. Resa informed him that Chevvies were harder to get; that “I had tried to get them, but I couldn’t promise him.”
When Resa and Lopez drove in on the morning of May 5, Resa told Salazar that he had
‘ ‘
the tires he wanted. ’ ’ Salazar asked him what he had. Resa told him he had two Fords and a Chevy. Salazar then inquired, “What happened, couldn’t you get the other Chevy?” Resa told him, “No ... I couldn’t pick it up.” Salazar said, “Well, let me look at the tires.” Resa opened the trunk of his car and showed Salazar the tires. After some haggling, they agreed on $23 for the three. Garcia then came out and helped Resa put the tires in the trunk of another car. Salazar gave Lopez the $23.
At that time the police had Salazar’s establishment under surveillance and saw Resa and Lopez drive up. The officers observed a conference between Resa, Lopez and Salazar and also observed Resa open the trunk of his car and all look in it. A few minutes later Salazar handed something to Lopez. Resa then took the tires out of the trunk of his car while Garcia
assisted him in putting them into another ear. At this point the police appeared and placed the men under arrest. The officers took some money from Lopez’s shirt pocket and exhibited it to Salazar. They asked him if he had given it to Lopez. He stated he knew nothing about the money. Defendant claimed that the grinder had been given to him by Womack who used to work for him and had left it when he quit and that he hadn’t seen the electric drill previously. He denied having talked to Resa and Lopez and denied having seen or purchased the tires in question.
Defendant’s initial contention is that the court committed prejudicial error in failing to give the jury certain requested instructions on circumstantial evidence.
The gist of the offense of receiving stolen property is the purchase or receipt thereof with knowledge that it was stolen. (42 Cal.Jur.2d, Receiving Stolen Property, § 6, p. 410.) “ [I]t is not essential that such knowledge be actual and positive; it may be circumstantial and deductive.”
(People
v.
Bycel,
133 Cal.App.2d 596, 599 [284 P.2d 927].)
With respect to the grinder and the electric drill (Counts I and II), the People, in their effort to establish that defendant knew these items had been stolen, relied almost wholly upon circumstantial evidence. In such a ease it is incumbent upon the court to instruct the jury that to justify a conviction the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.
(People
v.
Candiotto,
128 Cal.App.2d 347, 356 [275 P.2d 500] ;
People
v.
Yokum,
145 Cal.App.2d 245, 252 [302 P.2d 406] ;
People
v.
Zerillo,
36 Cal.2d 222, 233 [223 P.2d 223]; see also
People
v.
Hatchett,
63 Cal.App.2d 144, 155 [146 P.2d 469] and
People
v.
Rayol,
65 Cal.App.2d 462, 464 [150 P.2d 812], both cited with approval in
People
v.
Bender,
27 Cal.2d 164,175-176 [163 P.2d 8].) Counsel for defendant requested appropriate instructions on this facet of the ease but the trial court rejected each of them and failed to give any instruction touching the question of circumstantial evidence.
It was clearly prejudicial to thus fail to instruct the jury for there was no substantial direct evidence that defendant knew that either
of the items in Counts I and II had been stolen. Thus the requested instructions became vital to the ease for it was essential that the jury understand and apply the principles embodied in the proposed instructions on circumstantial evidence. The failure to properly direct the jury in this important aspect of the ease was not only error but prejudicial and requires a reversal of the conviction on these two counts.
Implicit in the jury’s verdict on Count III is their acceptance of the testimony of Resa and Lopez from which it unmistakably appears that Salazar knew the tires and wheels in question were stolen. So, as to this count, circumstantial evidence played a minor role in defendant’s conviction. Therefore the failure to give instructions on circumstantial evidence was not prejudicial.
But, argues defendant (as to the third count), Resa and Lopez were accomplices of defendant, hence their evidence required corroboration to sustain his conviction on that count (Pen. Code, § 1111).
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FOX, P. J.—
Defendant Salazar appeals from his judgment of conviction on three counts of receiving stolen property (Pen. Code, § 496). The first count involved a grinder; the second, an electric drill; and the third, three auto tires and
He was sentenced to the state prison.
For some five years defendant had conducted a body and fender shop at 4700 Floral Drive in East Los Angeles. Edward Womack had been employed at the Baker Metal Finishing Company in Monterey Park. While so employed, he stole from the company the items involved in Counts I and II. He had known defendant for approximately a year and had
assisted the mechanics at defendant’s body shop upon occasion and had also worked on his own car there. He sold the grinder to defendant in the early part of 1960 for approximately ten dollars. Some months later he sold defendant the electric drill for eight dollars. Womack denied that he ever told defendant that either of these items had been stolen.
The tires and wheels involved in Count III were purchased from Jimmy Resa and Isadore Lopez on May 5, 1960. These items had also been stolen. Resa had known defendant for three or four years but had not seen him for approximately a year prior to November 1959. At that time he had a conversation with defendant about getting some property. Resa told Salazar that he was out again, using stuff [narcotics] and starting to hustle again. Resa had two or three new tires and wheels which he sold to Salazar for 10 dollars each. During the course of this conversation defendant remarked to Resa, “Well, it is good to see you because I had been getting stuff from other guys, they only used to bring one tire, or it would be used tires. ’ ’ He then stated, ‘ ‘ I will let you know later what I want.” Resa thereafter brought in an average of two or three tires a day to defendant. He also brought other stolen merchandise and sold it to defendant, such as a TV set, a Polaroid camera and tools. Lopez usually assisted Resa in the thefts. On May 4, the day before the incidents involved in Count III, Salazar told Resa that he was bringing in too many tires with Ford rims, that he needed tires with Chevy rims. Resa informed him that Chevvies were harder to get; that “I had tried to get them, but I couldn’t promise him.”
When Resa and Lopez drove in on the morning of May 5, Resa told Salazar that he had
‘ ‘
the tires he wanted. ’ ’ Salazar asked him what he had. Resa told him he had two Fords and a Chevy. Salazar then inquired, “What happened, couldn’t you get the other Chevy?” Resa told him, “No ... I couldn’t pick it up.” Salazar said, “Well, let me look at the tires.” Resa opened the trunk of his car and showed Salazar the tires. After some haggling, they agreed on $23 for the three. Garcia then came out and helped Resa put the tires in the trunk of another car. Salazar gave Lopez the $23.
At that time the police had Salazar’s establishment under surveillance and saw Resa and Lopez drive up. The officers observed a conference between Resa, Lopez and Salazar and also observed Resa open the trunk of his car and all look in it. A few minutes later Salazar handed something to Lopez. Resa then took the tires out of the trunk of his car while Garcia
assisted him in putting them into another ear. At this point the police appeared and placed the men under arrest. The officers took some money from Lopez’s shirt pocket and exhibited it to Salazar. They asked him if he had given it to Lopez. He stated he knew nothing about the money. Defendant claimed that the grinder had been given to him by Womack who used to work for him and had left it when he quit and that he hadn’t seen the electric drill previously. He denied having talked to Resa and Lopez and denied having seen or purchased the tires in question.
Defendant’s initial contention is that the court committed prejudicial error in failing to give the jury certain requested instructions on circumstantial evidence.
The gist of the offense of receiving stolen property is the purchase or receipt thereof with knowledge that it was stolen. (42 Cal.Jur.2d, Receiving Stolen Property, § 6, p. 410.) “ [I]t is not essential that such knowledge be actual and positive; it may be circumstantial and deductive.”
(People
v.
Bycel,
133 Cal.App.2d 596, 599 [284 P.2d 927].)
With respect to the grinder and the electric drill (Counts I and II), the People, in their effort to establish that defendant knew these items had been stolen, relied almost wholly upon circumstantial evidence. In such a ease it is incumbent upon the court to instruct the jury that to justify a conviction the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.
(People
v.
Candiotto,
128 Cal.App.2d 347, 356 [275 P.2d 500] ;
People
v.
Yokum,
145 Cal.App.2d 245, 252 [302 P.2d 406] ;
People
v.
Zerillo,
36 Cal.2d 222, 233 [223 P.2d 223]; see also
People
v.
Hatchett,
63 Cal.App.2d 144, 155 [146 P.2d 469] and
People
v.
Rayol,
65 Cal.App.2d 462, 464 [150 P.2d 812], both cited with approval in
People
v.
Bender,
27 Cal.2d 164,175-176 [163 P.2d 8].) Counsel for defendant requested appropriate instructions on this facet of the ease but the trial court rejected each of them and failed to give any instruction touching the question of circumstantial evidence.
It was clearly prejudicial to thus fail to instruct the jury for there was no substantial direct evidence that defendant knew that either
of the items in Counts I and II had been stolen. Thus the requested instructions became vital to the ease for it was essential that the jury understand and apply the principles embodied in the proposed instructions on circumstantial evidence. The failure to properly direct the jury in this important aspect of the ease was not only error but prejudicial and requires a reversal of the conviction on these two counts.
Implicit in the jury’s verdict on Count III is their acceptance of the testimony of Resa and Lopez from which it unmistakably appears that Salazar knew the tires and wheels in question were stolen. So, as to this count, circumstantial evidence played a minor role in defendant’s conviction. Therefore the failure to give instructions on circumstantial evidence was not prejudicial.
But, argues defendant (as to the third count), Resa and Lopez were accomplices of defendant, hence their evidence required corroboration to sustain his conviction on that count (Pen. Code, § 1111). He then argues that there is no corroborative evidence of their testimony. The statement of this court in
People
v.
Polsalski,
181 Cal.App.2d 795 [5 Cal. Rptr. 762], is apposite on this point (pp. 797-798) : “It is settled law that the thief is not an accomplice of the receiver of stolen property unless the theft and the passing of the
property to the alleged receiver of stolen goods were accomplished pursuant to an advance conspiracy to do those things.
People
v. Lima, 25 Cal.2d 573, 576 [154 P.2d 698] ; ‘It is now settled in this state that the thief and the receiver of stolen property are not accomplices
(People
v.
Burness,
53 Cal.App. 2d 214, 218-219 [127 P.2d 623]). This is so, because the receiver usually has no part in the theft, directly or indirectly, and the criminal act of knowingly receiving the stolen property occurs independently thereof and at a time subsequent to the completion of the asportation. And conversely, it has been said that inasmuch as a thief cannot receive from himself, he cannot be an accomplice of the receiver. The thief and the receiver are therefore generally said to be guilty of separate and distinct substantive offenses, and not being “liable to prosecution for the identical offense,” are not accomplices within the meaning of that term as defined in section 1111 of the Penal Code. There is, however, a well-established exception to this general rule.’ Page 578: ‘When there has been a conspiracy or prearranged plan between the thief and the receiver, the conspirators have been held to be accomplices even where, as is necessary under our statutory definition of accomplices (§ 1111,
supra),
the test is whether they are liable to prosecution for the identical offense or offenses. . . . Where, as here, the prosecution evidence discloses the existence of a conspiracy or agreement whereby the principal prosecution witnesses were to steal and defendant was to purchase the stolen property, it is both logical and reasonable to hold that they are accomplices in the offense or offenses resulting from execution of such plan. If we were to allow the conspiracy element to be disregarded and the accomplice relationship thereby eliminated, the prosecution could circumvent the rule requiring corroboration of accomplice witnesses.’ [Citations.] ”
The testimony of Besa and Lopez would support an implied finding by the jury that they had an arrangement with defendant to steal automobile tires and wheels and that defendant would purchase same from them; that such an arrangement had been in effect and in operation for quite some time prior to May 5, 1960, when the incidents involved in Count III took place. Under the principles above stated, the jury reasonably could impliedly find that Besa and Lopez were accomplices of defendant.
The question then is: Was there sufficient corroboration of their testimony ? In this connection it should be noted that the corroborating evidence need not of itself establish
guilt.
(People
v.
Rissman,
154 Cal.App.2d 265, 278 [316 P.2d 60].) Even slight circumstantial evidence may suffice for this purpose.
(People
v.
Griffin,
98 Cal.App.2d 1, 25-26 [219 P.2d 519].) “[T]he corroborating evidence is sufficient if it tends to connect the defendant with the commission of the offense in such a way as may reasonably satisfy the trier of fact that the witness who must be corroborated is telling the truth.”
(People
v.
Aadland,
193 Cal.App.2d 584, 589 [14 Cal.Rptr. 462] ;
People
v.
Lyons,
50 Cal.2d 245, 257 [324 P.2d 556] ;
People
v.
MacEwing,
45 Cal.2d 218, 225 [288 P.2d 257].)
Here the police watched from a distance the negotiations by which defendant received the stolen property from the thieves. They saw defendant with them at his place of business. They observed the parties engaged in conversation and defendant’s inspection of the tires and wheels. They saw defendant hand something to Lopez. They observed the tires being taken out of the trunk of Resa’s car and handed over to Garcia who placed them in another vehicle. Upon arresting defendant and Garcia the police recovered the exact amount from Lopez that Resa testified had been paid for the tires. Although the officers observed defendant talking to Resa and Lopez and inspecting the tires, he denied having talked to them. He also denied having seen the tires and wheels in question. These facts and circumstances were sufficient to connect defendant with the offense charged in Count III and reasonably to persuade the jury that the accomplices were telling the truth.
(People
v.
Davis,
124 Cal.App.2d 173, 179-180 [268 P.2d 66] ;
People
v.
Antone,
141 Cal.App.2d 681, 683-684 [297 P.2d 88].)
The judgment on Counts I and II is reversed; the judgment on Count III is affirmed.
Ashburn, J., and Herndon, J., concurred.