People v. Lee Ward Ang

COUGHLIN, J.

The defendant, appellant herein, was charged with, tried before the court without a jury for, and convicted of the offense of burglary, i.e., a violation of section 459 of the Penal Code, which the court fixed at second degree; made a motion for a new trial, which was denied; withdrew his application for probation; was sentenced to imprisonment in the state prison; and appeals from the judgment entered, contending:

1. that the evidence is insufficient to support the judgment, and

2. that he was deprived of due process of law because neither he nor his attorney was present in the judge’s chambers when, prior to his trial, the judge and the deputy district attorney representing the People were conversing.

On the night of December 11, 1960, at about 10 :30 p. m., the defendant, accompanied by a male and two female companions, stopped at the Submarine Café, in San Diego, on his return from the Caliente racetrack to his home at Long Beach; were served by the proprietress who recalled their having been on the premises about six weeks previously, which immediately preceded a burglary of her café; played various coin-operated machines, including a record player commonly called a juke box; and left about 11:30 p. m. During the course of their stay the two women, in the presence of the defendant, engaged the proprietress in a conversation respecting “the amount of take that a business like that did.” On the occasion when they were in the café six weeks previously, a waitress had a similar conversation with these couples.

Apparently being suspicious that these people might have had some connection with the prior burglary, the proprietress washed all of the equipment in the café after closing for the night, giving particular attention to the coin-operated machines, including the juke box, which she washed with “Spic and Span” and polished with “Windex.” She left the café at about 12:30 a. m., and when she returned shortly after 7 o’clock a. m. discovered that the place had been burglarized; entry had been gained through a window; the coin boxes on

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the machines had been broken into; an estimated $60 to $70 and other articles of small value had been removed; beer glasses had been washed and placed in the sink; and things generally were in a state of disorder. Shortly thereafter, in the course of a police investigation, fingerprints were lifted from the chrome bar on the juke box and compared with fingerprints subsequently obtained from the defendant. A fingerprint expert identified one of the fingerprints lifted from the juke box as the fingerprint of the defendant. It appears that other fingerprints lifted from the chrome bar either were not identified or were not identifiable.