People v. Berry

KINGSLEY, J. Defendant was charged by information with a violation of section 487, subdivision 3 of the Penal Code (grand theft auto), and with a violation of section 10851 of the Vehicle Code (unlawful taking of an automobile). Three prior felony convictions were also charged. He was arraigned, with counsel, on June 4, 1964; he pled not guilty and denied the priors. Trial was set for July 7, 1964; the record does not indicate any objection by defendant or his counsel to the date as set.1 The case was called for trial, as thus set, on July 7, 1964; trial by jury was duly waived and the ease was submitted to the court on the transcript of the preliminary examination supplemented by the testimony of two witnesses—a police officer and defendant. Defendant was found not guilty of grand theft but guilty of violation of section 10851 of the Vehicle Code; probation was denied; no finding was made as to the priors; defendant was sentenced to state prison.2

Since we conclude that the judgment must be reversed for violation of the rules laid down in People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], we set forth only so much detail as is necessary for the discussion of that point.

There is no serious question as to proof of the corpus delicti: the automobile in question was leased by a commercial car leasing company to Simon Taub. On February 3, 1964, Mr. Taub parked it in a county parking lot at the corner of Temple and Hill Streets, in the City of Los Angeles. When he returned, the ear was gone. Neither he, nor the owner, had given permission for its removal. A prima facie violation of section 10851 was thus shown.

The issue is whether or not defendant was the person who had taken the car. The arresting officer (Officer Rupe) testified that a woman named Ortiz (not shown to have been a “reliable” informant) told him that a car parked in the vicinity of 46th and Hooper Streets was a stolen car. About 11 p.m., on April 2, 1964, the officer went to the location [462]indicated, examined the vehicle (which turned out to be the one herein involved) and (after checking with his headquarters) determined that it was stolen. So far as the record here discloses, the officer, without further information, went, at about 1:30 that morning, to defendant's home, located several miles from the place where the car was parked and, without a warrant, “woke him up" and arrested him for the theft of the car.

The officer then testified that, during the course of the trip to the police station and during a 45 minute “general conversation” at the station, defendant admitted stealing the car, giving, in substantial detail, the manner of its taking, the procuring of false license plates and the ultimate parking. The “conversations" at the police station continued, with other officers participating. In all, the record discloses interrogation at the police station by four or five officers— Officer Rupe, his partner Officer Harper, Officer Medina, his partner, and Officer Colum, and perhaps Sergeant Dollinger. Officer Medina testified to a full confession, which he wrote out and which defendant signed.