People v. Thomas

[322]

Opinion

FLEMING, Acting P. J.

Defendant appeals from the judgment entered following a juiy trial that resulted in his conviction for burglary. He contends: “I. Prejudicial error occurred when the trial court instructed the juiy in the disjunctive, that appellant could be found guilty of burglary if he entered Pacoima T.V. with the specific intent to commit larceny

or

with the specific intent to receive stolen property. (CT 32.) II. The prejudicial effect of the foregoing error was compounded by the trial court’s refusal to instruct the jury as per appellant’s request. III. The trial court abused its discretion in denying appellant’s motion to suppress the use of his robbery conviction for impeachment purposes.”

The procedural facts determinative of the one fundamental issue tendered by this appeal are not in dispute. On the afternoon of August 4, 1976, appellant and one Lee Richardson broke the lock on the front door of the Pacoima T.V. shop, a shop wherein its owner kept television sets he had purchased at swap meets for repair and sale. When the police arrived on the scene after a few items had been removed and placed in appellant’s car, appellant informed them, “We are helping the owner take this stuff out for safe-keeping” because the store “was supposed to be ripped off that night.” At trial the owner of the store, Roland Teal, known as Lucky, denied that.he had instructed appellant to enter his store for any purpose, or that he had given him permission so to do. However, he admitted that he had known appellant for some time, knew he was an ex-felon, and, in fact, had spoken with him at one of his bars only 35 minutes before learning that the police had apprehended appellant at the television shop.

In defense appellant testified that Teal had promised to “give us $200. and give me a position as a security officer” if appellant would remove certain designated items from Teal’s store. Originally it had been planned that the manager of the store would open it for appellant but, since this party unexpectedly had been arrested on the morning of the 4th, Teal assertedly had told appellant, “Break in. You got permission. If anything happens, I mean go wrong, I would take care of it.” Appellant was also told that the merchandise to be taken would be found segregated in a certain location within the store and a van would arrive to aid appellant in transporting the more bulky items.