People v. Jochen

Opinion

KINGSLEY, J.

Defendant was charged: (count I) with burglary, in violation of section 459 of the Penal Code; and (count II) with possession of a firearm, being previously convicted of a felony, in violation of section 12021 of the Penal Code. After a trial by jury, he was found guilty on both counts and was sentenced to state prison, the sentences to run concurrently. He has appealed;

1

we affirm as to count II and reverse as to count I.

The police received a “tip” that defendant had committed, or was involved in the commission of, a burglary. The officer assigned to investigate that tip examined the police records on defendant. He discovered, inter alia, facts suggesting that defendant might be on parole. The officer called the local parole office and (after a check of their records had been made) was advised that defendant was on parole and that he was a “parolee-at-large”—i.e., that he was not reporting to his parole officer and had not reported a current address. The parole agent asked the police officer for help in locating defendant. Thereafter, the

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officer was advised that an order for defendant’s arrest had been issued by the parole agents.

With that information, coupled with other information, the officers discovered defendant and a companion eating in a restaurant. They waited until the pair had left the restaurant and had driven out of the parking lot. Several officers then stopped the vehicle, ordered defendant and his passenger to alight, handcúffed them and arrested them. Because defendant said that the vehicle sometimes moved by itself, the officer reached into the vehicle to turn off the ignition. He saw the handle of a firearm protruding from under a seat, removed it and discovered that it was loaded.

The police, purportedly looking for the registration certificate, opened the glove compartment and discovered, in plain sight, items of jewelry, which were later identified as part of the fruits of the burglary herein involved. They opened the trunk of the vehicle and discovered other fruits of the burglary and a wrench.