People v. Wozniak

STONE, J. pro tem.

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A jury found the defendant guilty of burglary in the first degree. By this appeal defendant asks the court to modify the judgment to burglary in the second degree.

Kent Parker was a permanent resident of a hotel in San Diego on March 19, 1958. A few days prior to that date he had been released from the hospital, he was not well, and was suffering some pain. At about 6 :30 p. m. he took two sleeping pills prescribed by a doctor and went to sleep. When he awoke on the morning of March 20th he discovered that some of his property had been stolen. This was about 7 or 7:15 a. m. He then dressed, went downstairs to the hotel office, and reported the theft. He was advised by a girl in the cashier’s office that his credit cards had been turned in by a cook in whose room they had been found. The defendant registered at the hotel at 10 p. m. March 19th and checked out sometime during the day of March 20th. There is nothing else in the record to indicate the time at which the burglary was committed.

[450]

Penal Code, section 460, defines the degrees of burglary as follows:

“1. Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree.”

“2. All other kinds of burglary are of the second degree.”

As there is no contention that the defendant was armed or that he committed an assault in the commission of the burglary his conviction in the first degree can be sustained only if the record reflects that the burglary was committed in the nighttime. Section 463 of the Penal Code defines nighttime as follows: “The phrase ‘nighttime,’ as used in this Chapter, means the period between sunset and sunrise.”

The hour of sunset on March 19th is unimportant as the defendant did not arrive at the hotel until 10 p. m. The hour of sunrise the following morning, March 20th, was 5 :52 a. m. Defendant contends that the failure of the court to instruct the jury of the time of sunset and sunrise made it impossible for the jury to determine whether the burglary took place in the nighttime, before 5:52 a. m. March 20th, or after that hour and during the daytime.