People v. Garcia

Opinion

KAUS, P. J.

Defendant was charged by information with one count of burglary (Pen. Code, § 459), one count of receiving stolen property (Pen. Code, § 496), one count of mayhem (Pen. Code, § 203) and one count of assault with a deadly weapon (Pen. Code, § 245). A prior felony conviction was also charged.

Defendant pleaded not guilty and denied the prior conviction. A motion under section 1538.5 of the Penal Code was denied. Jury trial was waived. Defendant was found guilty of counts III (Pen. Code, § 203) and IV (Pen. Code, § 245) and not guilty of counts I (Pen. Code, § 459) and II (Pen. Code, § 496). The clerk’s transcript states that the alleged prior conviction was found not true, but the reporter’s transcript is silent as to any disposition of the prior felony charge.

Motion for new trial as to count III was denied, as was probation. Defendant was committed to the Youth Authority. This appeal followed:

Facts

George Kuusisto and Russ Veccia, accompanied by two girls, left a party in Venice about 3 a.m., September 1, 1968, and returned to Kuusisto’s car. On the way there, they passed another car parked in the middle of the street with its lights out, several car lengths behind Kuusisto’s. Veccia noticed a stereo tape deck on its hood. When Kuusisto unlocked his own car he noticed his stereo tape deck was missing from under his dashboard.

Kuusisto and Veccia returned to the car they had just passed. Four persons, including defendant, were in the car. Kuusisto made known the loss of his tape deck and declared his intention to “check out” the car. He opened the front door and saw his tape deck on the front seat. He took it and placed it on the floor of his own car. He was about to enter his own car when he was jumped by two men, one of whom he identified as defendant. Each of

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the two assailants was armed with two objects, which looked like knives or clubs. The best description Kuusisto could give of the manner in which defendant was armed was that he had a dark bar about a foot long in one hand and a small knife, about 6 inches long, in the other.