People v. Johnson

KINGSLEY, J. Defendant was charged by information with a violation of section 487, subdivision 1 of the Penal Code (grand theft). He was also charged with the following prior convictions: 1945, burglary and receiving stolen property; 1950, burglary; 1952, violation of section 503 Vehicle Code, unlawful taking of a motor vehicle; 1957, violation of section 503 Vehicle Code. He pled “not guilty” and denied the priors. When the cause was called for trial, out of the presence of the jury, defendant admitted the priors. He was found guilty as charged • a motion for new trial was denied; probation was denied. Defendant was sentenced to state prison for the term prescribed by law.

The theory of the case for the People was that defendant unlawfully took certain suits from Bullock’s department store with the specific intent to appropriate them permanently without paying for them. His sole defense was that of entrapment. He admitted taking the suits but denied that he intended to keep them and testified that he had been hired and paid by security agent Sances of Bullock’s department store to make a delivery of them.

I

Defendant contends that the failure of the trial court, on its own motion, to instruct the jury as to the value and effect of circumstantial evidence, constitutes reversible error. Specifically, he maintains that the trial court erred in not giving an instruction to the jury that to justify a conviction based substantially on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. In support of this contention, he cites People v. Yrigoyen (1955) 45 Cal.2d 46, 49-50 [286 P.2d 1], in which the court said: “In a criminal case the trial court is required to instruct the jury of its own motion upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence. (People v. Buffum, 40 Cal.2d 709, 724 [256 P.2d 317] [requiring an instruction on the necessity for corroboration]; People v. Putnam, 20 Cal.2d 885, 890-891 [129 P.2d 367] [requiring a cautionary instruction in a ease involving a sexual offense].) In accordance [64]with this rule we declared in People v. Bender, 27 Cal.2d 164, 174, et seq. [163 P.2d 8], that the court on its own motion should have given an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. (See also People v. Koenig, 29 Cal.2d 87, 93 [173 P.2d 1].) It is true that in the Bender case proof of guilt was entirely circumstantial, whereas in the present ease there was direct evidence that defendant issued the check without sufficient funds in or credit with the bank, and circumstantial evidence was relied upon to show his criminal knowledge and intent. However, in the Bender case, it is stated that where circumstantial evidence is substantially relied upon for proof of guilt, adequate instructions on the rules governing the application of such evidence must be given. (27 Cal.2d at p. 175.) And it has been held that the instruction must be given where criminal knowledge is shown only by circumstantial evidence. (People v. Candiotto, 128 Cal.App.2d 347, 355-356 [275 P.2d 500].) Oases holding that the instruction need not be given, even upon request, where circumstantial evidence is only incidental or corroborative are not, of course, applicable here. (See People v. Jerman, 29 Cal.2d 189, 197 [173 P.2d 805]; People v. Alexander, 92 Cal.App.2d 230, 235 [206 P.2d 657].) ”