People v. Helm

VALLÉE, J.

By information defendant was accused of burglary. Trial by jury was waived. Defendant was found

[344]

guilty. Immediately after pronouncing judgment sentencing defendant to state prison, the court fixed the degree of the offense as burglary of the first degree. Defendant appeals from the judgment.

In the evening of February 13, 1957, Agnes Harvey was in her home at 3131 Broadway, Walnut Park. Between 7:30 and 7:45 she saw defendant, a stranger, coming out of the kitchen with her purse in his hand. Her husband and a daughter were in the house at the time. Defendant ran out of the back door with the purse. Mrs. Harvey ran after him. Defendant ran up the street, then between some houses, and disappeared. He had parked his car a few houses from the Harvey home. About 10:30 p. m. that evening he returned for the car and was arrested.

Defendant concedes the evidence is sufficient to support the finding of burglary of an inhabited dwelling-house. He asserts the evidence is insufficient to support the finding that the burglary was of the first degree. Every burglary of an inhabited dwelling in the nighttime is burglary of the first degree. (Pen. Code, § 460.) The phrase “night-time” means the period between sunset and sunrise. (Pen. Code, § 463.) Mrs. Harvey testified it was dark between 7:30 and 7:45 on February 13, 1957; the lights in the house and in the patio were on; the street lights were on. As she ran out of the house Mr. Wright, a neighbor, was backing out of his driveway with his car lights on. He heard a woman screaming and yelling; he could not “tell in the darkness who it was.” Mr. Wright testified the man was running ‘ ‘that night.’’ An occupant of. the house next to the driveway through which defendant ran and who saw defendant testified there was a bright moon at the time just before 8 o’clock. The court was warranted in inferring from this evidence that the burglary occurred after sunset.

(People

v.

Mendoza,

17 Cal.App. 157, 159 [118 P. 964].) Also the trial court was authorized to take judicial notice that the sun set at 5:35 p. m. on February 13, 1957, and consequently that the burglary was committed in the nighttime.