People v. Borba10/7/1980
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
Crim. No. 19802
1980.CA.40301 ; 110 Cal. App. 3d 989; 168 Cal. Rptr. 305
October 7, 1980
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WILLIAM HENRY BORBA, DEFENDANT AND APPELLANT
Superior Court of Santa Cruz County, No. 68351, Donald O. May, Judge.
Luis M. Villarreal, under appointment by the Court of Appeal, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein, John Runde and Nancy Stewart, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Feinberg, J., with White, P. J., concurring. Separate dissenting opinion by Scott, J.
Feinberg
Appellant William Henry Borba was acquitted of burglary (Pen. Code, § 459) of the residence of Mark Lofgren and convicted of receiving stolen property (Pen. Code, § 496) of the same victim.
Mark Lofgren's house was burglarized sometime between 5 p.m. and 9:45 p.m., and part of his coin collection, consisting primarily of foreign coins but including American money having a face value of approximately $65, was stolen.
At about 11:30 p.m. the same night, appellant was arrested for drunk driving . During booking procedures, he was found to have two silver dollars (an 1883 and a 1976), two silver certificates, ten Jefferson nickels, two Roosevelt dimes, and a 1946 Lincoln penny in his pocket. Lofgren came to the police station and identified the 1883 silver dollar and the silver certificates. The arresting officer, who had participated in the burglary investigation, intended to question appellant about the drunkdriving incident but not about the burglary, which he would leave to detectives, and advised appellant of his Miranda rights, which appellant refused to waive. It was then 2 a.m.
At 8:30 a.m., a detective who was unaware that appellant had invoked his Miranda rights, readvised appellant of same and obtained a waiver. In response to questioning about the burglary, appellant denied having committed it and said that 10 days to 2 weeks earlier a Brad Snyder had given him the money as payment for a ride to San Jose.
Asked where Snyder got the money, appellant said "he felt he [Snyder] committed a burglary in the Aptos area and had received them from that." Without objection by appellant, the detective testified that a sheriff's detective had been unable to connect the coins with any other burglary.
Appellant presented at trial the testimony of a professional numismatist to the effect that, whereas none of the money found in his possession would be likely to be in anyone's possession at a particular time (with the possible exception of the nickels), any of it would be likely to be found in a basic coin collection -- i.e., the money was not in general circulation but not rare either. In particular, he estimated that 1 out of every 15 or 20 silver dollars is an 1883.
The judge, at appellant's request, gave the jury an instruction to the effect that, before considering appellant's statement to the detective, it had to find, beyond a reasonable doubt, that the money found in his possession was Lofgren's -- i.e., once having found that, it could treat appellan
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