People v. Holmes

[23]

Opinion

STEPHENS, J.

Defendant was charged by information with violation of Penal Code, section 487, subdivision 1 (grand theft). Defendant, appearing with counsel, was arraigned and pled not guilty. Defendant personally and all counsel waived jury trial and stipulated that the case be submitted on the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. Further testimony was taken and the court found defendant guilty of violating Penal Code, section 484 (petty theft), a lesser and necessarily included offense. Probation was denied and defendant was sentenced to imprisonment in the Los Angeles County jail for 180 days, with sheriff’s honor farm recommended.

The victim of the theft hired defendant’s wife to do some typing at the victim’s home. The victim had been cleaning out his garage but was unable to complete the job because of his broken ankle. Since defendant was coming to his house each day to bring the defendant’s wife her lunch, the victim asked him if he would like to clean out the garage. In return for his work, the victim offered to give defendant certain items from the garage “to be selected later.” The defendant accepted the offer. Approximately a week or two after defendant began cleaning the garage, the victim ascertained that certain items were missing from both the garage and his home. The victim personally noticed that a Sony tape recorder which he estimated to be worth $300 and a vari-bladed appliance, worth about $50 were missing from his home. He determined that a Viking tape deck in a case, stated to be worth about $450, a full set of elecric soldering equipment, valued at $75, various automobile tools, machine tools and a Skil saw, worth about $125, and a 16-millimeter movie projector, worth about $300, were missing from his garage. Because of his broken ankle, the victim was unable to personally inspect his garage. However, he determined the above items were missing when, after the Sony tape recorder disappeared, he asked the defendant to look for it and the other items in his garage. The defendant looked on several different days but told the victim he could not find the items. Approximately a week after the tape recorder disappeared, the victim telephoned the defendant’s wife and complained about the missing items. The defendant came to the victim later the same day, looked in the garage, and announced that he had found the Sony tape recorder. A day or two later the defendant brought the Viking tape deck to the victim and said “Well, here you are.” When the victim asked where the case for the tape deck was, defendant answered that he had given it to a friend and offered to pay the victim $10 for it. The victim refused to accept the money. When the victim asked him where the other missing items were, the defendant became angry and left. The victim testified that he had never given the defendant permission to take anything from his home or garage.