People v. Garcia

ASHBURN, J.

The record discloses no good grounds for this appeal. Appellant asserts (1) insufficiency of the evidence, (2) misconduct of the trial judge, and (3) former jeopardy. None of these points has substantial support in the record.

Defendant was charged by information with four counts of burglary and three prior convictions of felony,—two robberies and one violation of section 503, Vehicle Code. Originally represented by the public defender, a lawyer of defendant’s own selection was substituted at the beginning of the trial and the prior convictions were thereupon admitted. Defendant did not testify or call any witnesses in his own behalf. The trial ended in acquittal with respect to all charges except count III, which alleged that defendant committed burglary (Pen. Code, § 459) on September 29, 1957, in that he willfully entered the house occupied by Alex Corsero and Anna Corsero with intent to commit theft. Convicted of that charge, the offense was fixed at second degree burglary and defendant sentenced to prison for the term prescribed by law, the court making no finding as to the prior convictions.

The evidence shows that Alex Corsero left his residence, 651 Alpine Street, Los Angeles, at about 9:30 p. m, on September 29,1957, taking with him his entire family except a 16-year-old son (who was probably absent on a mission of his own). Upon return at about 10 or 15 minutes before 1 a. m., the Corseros found all lights burning; part of a cake which had been on the

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table was lying on the floor; the screen in a window of the daughter’s bedroom was raised; there were blood spots on the floor and bed; the girl’s purse, which had been left on the bed, was lying on the floor and the contents scattered; also on the floor was icing from the cake; upon a glass in the bathroom were dirt and blood spots and cake icing; the father’s wrist watch was missing from the said bedroom but none of the contents of the purse had been taken. Mr. Corsero heard a noise outside; went into the patio and found defendant sitting on the edge of a bench; when asked, ‘ ‘What are you doing here?” he said, “I am sleeping. I am sleeping.” Corsero grabbed defendant, who tried to get away, but with the help of a friend Corsero held him face down on the ground until the police arrived. When they asked what he was doing there defendant said, “I live here,” according to the daughter, Anna Corsero. Officer Sedgeman testified that defendant would not tell where he lived and when asked what he was doing there said, “it was a cousin’s house”; he refused to answer questions as to what he was doing in the area and how old he was. The officer observed that defendant had a minor injury to the little finger of his right hand and there was fresh dried blood on it; under the finger nails of three other fingers of the same hand were moist white particles. The cake was white and had finger marks on it. Defendant had alcohol on his breath but was not intoxicated; had no difficulty with speech or walk. A search of his person revealed no watch nor was it found elsewhere. As above stated, defendant did not testify and called no witnesses.