Opinion
Rehearing Denied Dec. 26, 1961.
Hearing Granted Feb. 1, 1962.
Opinion vacated 26 Cal.Rptr. 297, 376 P.2d 297.
Alfred A. Affinito, Pittsburg, for appellant.
Stanley Mosk, Atty. Gen., Albert W. Harris, Robert R. Granucci, Deputy Attys. Gen., for respondent.
TOBRINER, Justice.
For the reasons which we detail hereinafter we have concluded that appellant's conviction for violation of section 496 of the Penal Code, in that he feloniously received two stolen hubcaps, cannot stand.
We cannot sustain the court's instruction that any person who buys or receives property from a minor under the age of 18 years is presumed to know the property is stolen. The court based this instruction upon section 496 of the Penal Code; we have concluded that the statute cannot validly apply to the receipt of property from such a minor. Although we understand the basis for the statutory presumption that a person who buys property from the minor of less than 18 years must have known the property to have been stolen, we do not see how such a presumption can properly apply to those who merely receive such property. Such a presumption must rest upon the teachings of common experience; yet the instant presumption, in requiring that all recipients of property from the described minors must assume the property to have been stolen, does violence, we think, to common knowledge, and some violence, indeed, to the integrity of all such youth of the state.
We likewise believe that another of the court's instructions erroneously and prejudicially conveyed to the jury the impression that appellant could have violated the section in concealing stolen property even though he did not know it was stolen.
On the other hand, we have rejected the defense contention that the court improperly admitted evidence as to the search of appellant's vehicle and the product of such search. We have likewise found no merit in appellant's argument that the district attorney prejudiced appellant's rights in misconducting the examination of a prosecution witness.
Appellant's prosecution emanated from his alleged receipt of two Dodge Lancer hubcaps from one Charles Lawson. Lawson, a 15 year old boy, admittedly stole the hubcaps. His testimony revealed that he met appellant during the late afternoon of April 10, 1960, and traveled with appellant in his car to the Vogue Theater in Pittsburg, California, entering the theater about 7:30 p. m. Lawson did not sit with appellant during the show. At about 9:30 p. m. Lawson left the theater to meet his brother; the brother did not arrive. Lawson then removed two Dodge Lancer hubcaps from a parked 1953 Ford, put them in the trunk of appellant's car, and returned to the movie. Lawson later again left the theater with appellant, who drove him home. When they arrived at Lawson's home, Lawson, without telling appellant that he had put the hubcaps in the trunk, asked appellant if he would keep some hubcaps, but appellant denied Lawson's request. The hubcaps remained in the trunk.
Appellant gave the same account as Lawson regarding his transportation to and from the theater and the conversation concerning hubcaps. Appellant categorically denied any knowledge of the fact that the stolen hubcaps were in his trunk. According to appellant he met one Joe Hicks at about 6 or 6:30 p. m. on April 11, 1960, and sometime after 11 p. m., as they drove through Concord in appellant's car, a police officer in a patrol car stopped them and told appellant that his license plate light was out. The officer asked appellant if he could search the car; Hicks said to appellant that the police had no right to search. Appellant then falsely asserted that the key to the trunk was broken. The officer said the ignition key would work; he reached into the car, took the key out of the ignition, and opened the trunk. The officer found the two hubcaps. Appellant explained that "They must belong to Charles Lawson." At the police station appellant learned that the hubcaps had been stolen.
Officer Bedsworth, who stopped appellant's car, related a different version of the search. He stated that after halting appellant's car, he asked appellant for his operator's license and then recognized the The testimony of Sergeant Russo dealt with certain of appellant's alleged statements to the deputy district attorney. Russo said appellant admitted that on April 10th Lawson had told appellant about the hubcaps, which Lawson had put under the front seat of appellant's car; that appellant had told Lawson to remove them. Lawson had said that he could not take back the hubcaps and had asked appellant if he would keep them for awhile; the two of them then had put the hubcaps in the trunk; appellant had not known at the time the hubcaps were stolen.
The jury returned a verdict of guilty; the court rendered judgment that appellant had violated section 496 of the Penal Code.
We begin with the applicability and constitutionality of the statutory presumption. People's Instruction No. 3 consists of a practically verbatim quotation from the last paragraph of Penal Code section 496, which reads as follows: 'Any person who buys or receives any property which has been stolen or which has ben obtained in any manner constituting theft or extortion, from any person under the age of 18 years shall be presumed to have bought or received such property knowing it to have been so stolen or obtained, unless such property is sold by such minor at a fixed place of business carried on by the minor or his employer. This presumption may, however, be rebutted by proof.'
Appellant's contention that he did not know of, or consent to, the placement of the hubcaps in the trunk, and therefore did not 'receive' them, does not defeat the applicability of the section. Even if the property were originally placed in the car without appellant's consent he could be convicted of receiving the stolen property if he knew that it were concealed there. People v. Rossi (1936) 15 Cal.App.2d 180, 59 P.2d 206 states: 'It is not necessary to constitute receipt of stolen property that the accused receive the physical possession of the property. If * * * [it] had been concealed upon the * * * premises by others with his knowledge or consent, that would be sufficient to justify the conviction.' (P. 182, 59 P.2d 207.)
The application of the statute in the instant case, however, as we shall show, deprived appellant of the protection of a constitutional right and worked prejudicial error. Since conviction for violation of section 496 compels proof of knowledge that the prperty had been stolen, the statute, in eliminating such proof in the prescribed circumstance, reverses the presumption of innocence. The statute also applies not only to the purchase of stolen property from a minor under 18 years of age but to the receipt of any such property. The statute likewise covers such receipt of any property; it is not confined to the acceptance of 'an article that has been or is likely to be made an instrument of crime * * *.' (People v. Scott (1944) 24 Cal.2d 774, 781, 151 P.2d 517, 521.)
In determining the constitutionality of this wide statutory presumption we follow the guide lines established by the Supreme Court of the United States and the Supreme Court of California.
Mr. Justice Roberts in Tot v. United States (1942) 319 U.S. 463, 63 S.Ct. 1241, 1243, 87 L.Ed. 1519, speaking for the majority of the court, analyzed the statutory presumption that the possession of a firearm by a person previously convicted of a crime of violence or by a fugitive from justice was prima facie evidence that he 'shipped or transported or received * * * in interstate * * * commerce' In the earlier case of Bailey v. Alabama (1910) 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191 the court invalidated a statutory presumption of an intent to defraud based upon a breach of contract of employment by an employee who had received an advance payment. Mr. Justice Hughes for the court analyzed the vice of the statutory presumption: 'Unless * * * [the defendant] were fortunate enough to be able to command evidence of circumstances affirmatively showing good faith, he was helpless. He stood, stripped by the statute of the presumption of innocence, and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay.' (P. 236, 31 S.Ct. p. 149.)
The California cases follow the same test. Thus People v. Murguia (1936) 6 Cal.2d 190, 57 P.2d 115 holds that while the Legislature may 'enact rules of evidence * * * [t]he courts, as custodians of the judicial powers of government, are not obliged to enforce a statute which through a rule of evidence arbitrarily deprives a litigant of * * * due process of law.' (P. 193, 57 P.2d p. 116.) Accordingly, the court condemned an instruction based upon a statute (Stats.1923, ch. 339, p. 695) which provided that in the trial of a person for a felony committed while he was armed with certain specified weapons "without having a license or permit to carry such firearm * * * the fact that he was so armed shall be prima pacie evidence of his intent to commit such felony." (P. 192, 57 P.2d p. 116.) People v. Fitzgerald (1936) 14 Cal.App.2d 180, 190, 58 P.2d 718, 724, uses the same criteria in upholding a statute (Stats.1887, ch. 95, p. 110) providing that possession of explosive substances by any person not legally engaged in specified normal uses of such substances shall be "presumed (prima facie) to be guilty of a reckless and malicious possession" of such substances.
In People v. Scott, supra, 24 Cal.2d 774, 151 P.2d 517, the Supreme Court, speaking through Justice Traynor, upheld a statute (Stats.1923, ch. 339, p. 702) which made the possession of a firearm upon which the marks of identification had been "changed, altered, removed, or obliterated" presumptive evidence that the possessor had committed an offense. (P. 778, 151 P.2d p. 519.) In so doing the court pointed out that such a 'presumption may be invoked if the proved fact is 'at least a warning signal according to the teachings of experience' (Morrison v. People of State of California, supra, 291 U.S. at page 90, 54 S.Ct. at page 285, 78 L.Ed. 664) of the fact presumed, and 'the evidence held to be inculpatory has at least a sinister significance.' Ibid. 291 U.S. at page 90, 54 S.Ct. at page 285.' (P. 780, 151 P.2d p. 520.)
The teachings of experience do not support the legislative assumption that persons receiving goods from a minor know the goods are stolen unless 'sold by such minor at a fixed place of business. * * *' There are countless transactions each day in which an adult who receives an article from a minor not at a minor's 'fixed place of business' has no earthly reason to suspect the article has been stolen. We cannot decree that every time one minor receives property from another of less than 18 years of age the young recipient must assume the article has been stolen and receive the property at his peril. This is a preposterous proposition The vice of this presumption lies in holding that anyone who receives property from a person under 18 years of age must assume such property is stolen. To hold that people must act upon the assumption that the youth of the state are dishonest possessors of stolen goods imports an ugly note into a society founded upon the concept of free and fair dealing. The further assumption that property obtained from one over the age of 18 has not been stolen is equally untenable. The arbitrary absolution from the presumption after the age of 18 is as indefensible as the implied supposition that all children under that age are guilty of stealing property.
The Attorney General asserts that: 'Surely, any thinking person cannot help but be aware of the tremendous number of thefts perpetrated by juveniles. * * * What is more sensible, then, than that a statute put a duty of inquiry upon a person when approached away from a store or similar establishment by a juvenile with something to sell or hold for him.' The statistics do not bear out the allegation as to the tremendous number of thefts perpetrated by juveniles. The Annual Statistical Report, 1960, Department of the Youth Authority, State of California, Table 8, page 14, shows the first commitment rates for selected offenses for the year 1960, per 100,000 population in the 10 to 20 year age groups, to be as follows: robbery 14.2, burglary 32.7, theft (except auto) 11.4, auto theft 23.6. The total of such offenses constituted 81.9 per 100,000 of the juvenile population. We note that the 1960 figure is less than the 1950 computation: in 150 the total number of such offenses equaled 83.4 per 100,000 of the juvenile population. It is true that the percentages of juvenile crime attributable to such offenses, as compared to all juvenile offenses, is 48.2 per cent. (Idem Table 7, p. 13. See also, State of California, Department of Justice Division of Criminal Law and Enforcement, 'Crime in California 1960' pages 146, 147.) While the percentages of juvenile commitments to the Youth Authority for robbery, burglary and theft, as compared to the total number of commitments to such authority may be high, the number of such commitments per 100,000 of juvenile population is extremely small. It does not disclose a 'tremendous number' of such offenses by juveniles as compared to the total juvenile population.
We emphasize that in the instant case the court applied the statutory presumption to the receipt, not the purchase, of the stolen property. Appellant did not purchase the property, acquire it for later sale or subsequent disposition for his own purposes. The most that can be claimed is that the hubcaps were in the possession of appellant and that he had received them. We do not pass, therefore, upon the constitutionality of the application of the statute to the purchase of stolen property or the acquisition of it for sale. Indeed, in People v. Seerman (1941) 43 Cal.App.2d 506, 111 P.2d 457 the court in upholding a conviction for purchasing a stolen gold watch from a boy of 14 years noted that the section 'provides that if property is purchased from a person under 18 years of age it shall be presumptive evidence that the property was stolen.' (P. 510, 111 P.2d p. 460.) It may be that common experience would indicate that the purchase of goods from a minor of less than 18 years at a place other than his place of business may cast upon the purchaser a duty of inquiry as to the source of the goods but common experience dictates no such predicate in the case of a mere receipt of property from such a minor.
Finally, the fact that the statutory presumption could conceivably be more reasonably related to the specific subject of the receipt of hubcaps, which are involved in the instant case, does not save it. It may be true that hubcaps are more likely to be stolen than other articles. The general language of the statute, however, applies not merely to hubcaps but to all property. The possible narrow application of the presumption to a situation which conceivably could sustain it does not prevent its possible invalid application to other situations and its consequent unconstitutionality. '[A] statute which is not severable and which by its express terms permits an application the effect of which is unconstitutional, is invalid County of Los Angeles v. Jessup
In applying the presumption to the instant situation and instructing the jury according to its terms the court applied the statute in a manner which cannot constitutionally be upheld. The evidence in the case conflicted and the question of guilt was closely balanced. The rendition of the instruction could not avoid the imposition of prejudicial error upon appellant.
We turn to the second issue. As we have stated supra, we have concluded that People's Instruction No. 1 erroneously conveyed to the jury the impression that appellant could have been guilty of violation of section 496 of the Penal Code in concealing stolen property even though he did not know it was stolen.
The instruction repeated the language of the section as it read prior to its most recent amendment in 1959, which had become effective prior to the trial of this case. The court instructed as follows: 'Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft, knowing the same to be so stolen or obtained or who conceals, withholds or aids in concealing or withholding such property from the owner is guilty * * *.' The amendment (Stats.1959, ch. 734, p. 2723) changed the last portion of the section to state, 'or who conceals, withholds or aids in concealing or withholding any such property from the owner, knowing the same to be so stolen or obtained, is punishable * * *.' (Emphasis added.)
Appellant claimed he did not know of the presence of the hubcaps or that they had been stolen. Conceivably the jury, acting upon the given instruction, could have convicted appellant of concealing and withholding the stolen hubcaps despite their conclusion that he did not know the hubcaps had been stolen. (See People v. Thomas (1945) 25 Cal.2d 880, 895, 156 P.2d 7.)
We cannot believe that the rendition of such an instruction in a case involving a delicately balanced conflict of testimony would not be prejudicial. We appreciate the fairness of the Attorney General's statement that the instruction 'may be characterized as error in a technical sense,' but we cannot concur in his arguments that it worked no prejudice. The reliance upon our decision in People v. Feldman (1959) 171 Cal.App.2d 15, 26, 339 P.2d 888 is not efficacious because that decision predated the amendment, and the amendment specifically links the inculpating concealment with the requirement that the offender know that the property was stolen. Moreover, in Feldman the court cured any error by a further instruction incorporating another instruction which 'did include the requirement of guilty knowledge * * *.' (P. 26, 339 P.2d p. 895.) The jury in the instant case should have had the benefit of a full and clear instruction; the failure to afford it may well have led the jury to an erroneous verdict.
Nor can we accept respondent's argument that the general instruction that '[i]n every crime or public offense there must exist a union, or joint operation, of act and intent' cured the error. The instruction did not reach to the point of the requisite union of concealment and knowledge. Finally, respondent's defense that appellant should have requested a more precise instruction as to knowledge collapses upon appellant's request for an instruction that if the jury had 'a reasonable doubt that the defendant received the two hub caps knowing them to have been stolen' they should acquit him. The court did not give the instruction; the court noted it as given elsewhere.
Thirdly, we address ourselves to appellant's contention that the court erroneously admitted into evidence both the hubcaps and the testimony relating to their discovery. According to appellant, such evidence emanated from an unlawful search and seizure. The first thesis finds support in two factual foundations. As we have noted, Officer Bedsworth testified that when 'Defendant said that his trunk key had been broken, and he didn't have a key for the trunk,' the officer, knowing the 'trunk key and the ignition key of Chevrolets normally to be the same,' asked 'if * * * [he] might try [the ignition key] * * * and he [appellant] handed me his keys to try in the trunk of the vehicle, which I did.' (Emphasis added.) Furthermore, the officer, on cross-examination explicitly testified that he asked appellant if he 'might try' the ignition key and that appellant affirmatively answered this question: [h]e said 'Yes.' and handed me the keys.'
While appellant and his passenger assert that appellant did not agree to the opening of the trunk and that, on the contrary, the officer reached into the car, taking the ignition key from the lock, the resolution of this conflict of testimony lies with the trial judge. (People v. Gorg (1955) 45 Cal.2d 776, 782, 291 P.2d 469.) It is 'a question of fact to be determined in the light of all the circumstances.' (People v. Michael (1955) 45 Cal.2d 751, 753, 290 P.2d 852, 854.) Clearly the officer's statements would suffice to constitute substantial testimony upon which the trial court's finding of consent could appropriately rest.
Even in the absence of appellant's consent, the record contains testimony which affords the court a second basis for the admission of the hubcaps. According to Officer Bedsworth, appellant and his passenger became 'nervous' when the officer suggested checking the trunk; appellant offered the excuse that his key had been broken. While such nervousness does not conclusively predicate guilt of any wrongdoing, it could at least furnish reasonable ground for a belief that contraband might be hidden in the trunk. Moreover, Bedsworth's recognition of the passenger, Hicks, as one previously arrested for theft of hubcaps, while, again, not grounds in itself for the search, added a factor to his conclusion that the total situation reasonably indicated suspicious conduct. The cases have consistently held that if reasonable grounds support the stopping of an automobile, furtive actions on the part of the occupants may justify a search of the vehicle. (People v. Blodgett (1956) 46 Cal.2d 114, 117, 293 P.2d 57; People v. Zubia (1958) 166 Cal.App.2d 620, 333 P.2d 349; People v. Cantley (1958) 163 Cal.App.2d 762, 767, 329 P.2d 993; People v. Sanson (1957) 156 Cal.App.2d 250, 253, 319 P.2d 422.)
The two bases discussed above sustain the admission of the evidence; we need not rely upon the respondent's questionable ground that 'the search was incident to a lawful citation for a traffic offense.' Although the driving of a car without a license plate light might sustain the issuance of a traffic citation, it does not justify a search of the vehicle because such search would bear 'no relation to the traffic violation.' (People v. Sanson, supra, 156 Cal.App.2d 250, 253, 319 P.2d 422, 424; People v. Molarius (1956) 146 Cal.App.2d 129, 131, 303 P.2d 350; People v. Blodgett, supra, 46 Cal.2d 114, 116, 293 P.2d 57.)
Finally, appellant's contention that the prosecutor committed prejudicial error in his direct examination of Charles Lawson fails in the face of the court's ultimate ruling in appellant's favor. Appellant waived any objection to the prosecutor's questions on redirect examination upon the same subject by asking further questions on that matter on recross-examination.
In order to introduce an inadmissible prior statement of the witness to a detective charging appellant with knowledge of the presence of the hubcaps, the prosecution claimed surprise as to the testimony of Lawson. Despite the court's ruling, the prosecutor, on redirect examination, question the witness as to his statements to the police officers and introduced the substance of the inadmissible prior statement. Appellant's counsel did not object at that point but on recross-examination elicited the reason for the inconsistency, namely that the witness feared that the police would put him in juvenile hall if he did not say appellant knew about the hubcaps.
As to the rulings on the direct examination, appellant apparently claims prejudicial misconduct because 'the prosecutor made a deliberate attempt to introduce the prior statement.' We fail to see how appellant shows prejudice in the rendition of a final ruling in his favor excluding from evidence Lawson's prior statement. As to the redirect examination, appellant did not object to the admission of the evidence but chose to amplify the testimony on recross-examination. Appellant's waiver destroys any possible position he may have pressed upon appeal.
We conclude, however, that section 496 of the Penal Code as applied in this case deprived appellant of his constitutional protections. The structure of the statutory presumption did not rest upon the earth of experience; instead, it attempted to raise an unfounded indictment against the integrity of the young people of the state. Likewise, the court's further instructions under that section prejudicially affected appellant.
We reverse the judgment.
BRAY, P.J., and SULLIVAN, J., concur.