People v. Taylor

247 Cal. App. 2d 11, 55 Cal. Rptr. 521, 1966 Cal. App. LEXIS 930

Opinions

FLEMING, J.

Taylor pleaded not guilty when indicted on three counts of burglary (Pen. Code, § 459), one count of attempted burglary (Pen. Code, § 664), two counts of grand theft (Pen. Code, §487), and two counts of possession of a weapon by a felon (Pen. Code, § 12021). Except on the two counts of grand theft he was found guilty as charged. Additionally, the court found he was armed during the commission of the offenses.

One of the burglary victims, Mendelson, testified that a diamond pin and a gold watch belonging to his wife were found missing from his home near the UCLA campus on May 4, 1964. Darlene Grose, originally a codefendant, was granted immunity and testified that between May and August Taylor had given her the pin identified by Mendelson and a watch. In November Taylor told her that he had stolen them, and he took her to view the burglarized homes near UCLA. They discussed which homes would be burglarized that night. At 11 p.m. she drove Taylor to a residential neighborhood near UCLA, where she parked the car and waited while Taylor with a gun tucked in his belt went to commit the burglaries. On his return to the ear about 6 a.m. Taylor said he had entered the burglarized homes by prying open doors with a .screwdriver. He showed Darlene a man’s ring initialed “E.I.S.,” a lady’s watch and a lady’s ring. Earl I. Swetow testified that someone had entered his home that night by prying open the door and had taken his ring initialed “E.I.S.” and his wife’s diamond ring and watch.

After her arrest, Darlene took Officer Gravante to an area near UCLA and pointed out homes belonging to Mendelson, Swetow, and Brunswick, which she and Taylor had picked to burglarize. At the time she identified a cap worn by Taylor on the evening of the November burglaries. Mendelson testified he had awakened around 3 a.m. on the night of the burglaries and had seen a man on his balcony wearing the cap identified as Taylor’s.

Taylor appeals from the judgment, claiming (1) admissions he made in the absence of counsel to Officer Gravante following the preliminary hearing should have been excluded from evidence; (2) there was insufficient corroboration to connect him with the November crimes; and (3) there was no evidence to support iihe finding he was armed during the May burglaries.

1. The arresting officer advised Taylor of his right to remain silent, to have an attorney, and that any statement he made could be used against him. Taylor said he understood his rights. When he was later asked by Officer Gravante if he understood his rights Taylor replied that he did, saying that both the arresting officer and his own attorney had advised him of them. Two days after the preliminary hearing at which he had been represented by counsel, Taylor asked to see Gravante. During their conversation, when Gravante refused to do some personal errand for Taylor, the latter made an outburst which contained incriminating statements. These statements were volunteered and not the result of police interrogation. Taylor knew his rights and understood them, having been advised of them by the police as well as his own attorney. When an accused person in custody understands his rights, the decision to exercise these rights is his. Taylor chose to waive his right to remain silent, and the admission in evidence of his volunteered statements was proper. (Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].)

2. Taylor argues there was insufficient evidence eorroborating the testimony of his accomplice, Darlene, to support his conviction for the November burglaries. Corroborating evidence need only relate some act or fact of the offense to the defendant so as to reasonably satisfy the trier of fact that his accomplice is telling the truth. (People v. Kutz, 187 Cal.App.2d 431 [9 Cal.Rptr. 626]; Pen. Code, § 1111.) Circumstantial evidence alone suffices to corroborate an accomplice’s testimony. (People v. Temple, 102 Cal.App.2d 270 [227 P.2d 500].) Darlene’s testimony was supported by Mendel-son’s testimony, which included identification of Taylor’s cap as the cap worn by the burglar, by Swetow’s testimony that his house was burglarized in November and his ring initialed “E.I.S.” stolen, by the pry marks and method of entry which indicated the same modus operandi for the May and November burglaries. Additionally, the court could take into consideration admissions made by Taylor to Gravante. There was sufficient evidence to corroborate the testimony of Darlene.

3. Taylor contends there was no evidence to support a finding he was armed during the May burglaries. This is correct. Nor was he charged in the information with being armed during the May burglaries. Since neither a charge was made nor evidence offered on this subject we cannot hold that the May burglaries were burglaries of the first degree. (Pen. Code, § 460.)

The judgment is modified to reduce the conviction on counts I and III to second degree burglary, and as modified the judgment is affirmed.

Roth, P. J., and Herndon, J., concurred.

Respondent’s petition for rehearing was denied December 22,1966, and the following opinion was then rendered: