People v. Bright

Opinion

STEPHENS, J.

Defendant was charged by information with violation of Penal Code section 459 (burglary) in count I, and with violation of Penal Code section 496 (receiving stolen property) in count II. The information was amended to allege two prior convictions of Penal Code section 459. Defendant pleaded not guilty and denied the priors. His motion under Penal Code section 1538.5 was submitted on the transcript of the preliminary hearing plus additional testimony, and was denied. Defendant personally and all counsel waived jury trial, and the case was submitted on the transcript of the preliminary hearing, subject to all objections there raised, with each side reserving the right to offer additional evidence. Additional testimony was taken. The court found defendant not guilty of count I and guilty of count II. The court failed to make a finding on the issue of defendant’s alleged prior convictions. This is equivalent to a finding against the allegations.

(People

v.

Huffman,

248 Cal.App.2d 260, 261 [56 Cal.Rptr. 255].) Proceedings were suspended, and probation was granted for five years upon condition that defendant spend the first year in county jail.

Conflicting testimony was presented at the trial, but viewing the evidence in the light most favorable to the people

(People

v.

Hill,

67 Cal.2d 105, 121 [60 Cal.Rptr. 234, 429 P.2d 586]), the following facts were established: Willard R. Stevens, president of W. R. Stevens Company, Inc., 504 East Euclid, Compton, testified that some time between 4 p.m. on December 8 and 9 a.m. on December 9, 1967, someone broke into the company office, pried open the safe cabinet, and took the payroll checkbook and a Paymaster checkwriter, serial #77C20177, which bore the name plate “W. R. Stevens Company, Incorporated.” No one was given permission by Mr. Stevens to have possession of the checkwriter.

[929]

Peter J. Lupton testified that he was a police oificer for the City of Los Angeles. On April 2, 1968, he was assigned to Central Division Patrol, and at approximately 11 p.m. he and his partner, riding in a marked police car, were stopped at a red light at the corner of Seventh and Gladys. Defendant, driving a 1968 Volkswagen without any headlights on, approached the red light while travelling in the same direction as the officers. When defendant reached the corner, he made a right turn and drove northbound on Gladys. Officer Lupton made a right turn and followed defendant to the corner of Sixth and Ceres, where defendant stopped his car. The officers pulled in behind him and approached his vehicle to issue a traffic citation. No citation was issued, however. At no time did the officers turn on the red lights of their police vehicle, or otherwise signal for defendant to stop. As Officer Lupton approached defendant’s car on the passenger side, he shined his flashlight into the car. Resting on the back seat in plain view was a Paymaster checkwriter. Officer Lupton knew that two days earlier a Paymaster checkwriter had been stolen in a burglary approximately two blocks from the location where defendant had stopped his car. “At this time [the officers] took the checkwriter into custody, as well as the defendant.”