People v. Luick

Opinion

KINGSLEY, J.

Defendant was charged with burglary, in violation of section 459 of the Penal Code. After a trial by the court, he was found guilty of burglary in the second degree and sentenced to state prison; he has appealed. We modify the judgment and affirm it as modified.

I

It is not, and could not be, contended that the evidence does not support the finding of guilt. On the guilt issue it is argued, only, that evidence of a statement made by defendant after his arrest was improperly admitted because defendant had not been given adequate

Miranda

warnings. Although the police officer’s first recitation of the warnings given was deficient in one respect, his further testimony supplied that omission. We cannot say that the trial court’s implied finding of adequacy was without support in the record. In any event, the statement was entirely exculpatory and its admission could by no possibility have been prejudicial.

(Chapman

v.

California

(1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].)

II

Originally the information charged only the substantive offense of burglary, to which defendant pled not guilty and as to which issue he duly waived trial by jury. Thereafter, the information was amended to allege five prior felony convictions (three of “joyriding” and two of burglary). He denied the priors, but no new jury waiver was taken. Ultimately the trial court struck the three joyriding convictions “in the interest of justice” but the judgment recites as true the two burglary convictions.

It is here contended that this procedure violated defendant’s con-

[558]

stitutional right to a trial by jury on the issue of the priors and that it, also, violates the procedural requirement of section 969½ of the Penal Code.