People v. Garcia

SCHOTTKY, J.

Joseph Garcia was charged by information with the crimes of burglary in the second degree and petty theft. He was found guilty by a jury on the burglary charge and has appealed from the judgment entered on the verdict and from the order denying his motion for a new trial.

Pursuant to appellant’s request this court appointed Willard L. Weddell to act as his counsel. Hr. Weddell has informed this court that in his opinion no meritorious grounds for appeal exist. Notwithstanding this statement of counsel, we have made a careful study of the record and have concluded that the judgment should be affirmed.

The evidence as shown by the record shows the following: David Settle drove his car to the rear of the Lucky Market on Auburn Boulevard to get some boxes out of the trash bin. As he approached he saw two men closing the trunk of a 1956 Oldsmobile. He observed a ease of Jim Beam whiskey and a case of cigarettes inside the trunk. As he drove up the men leaped into the car and drove away at high speed. Settle followed the car and obtained its license number. He identified Garcia as one of the men. Thereafter it was ascertained that someone had removed five cases of Jim Beam whiskey from the liquor storage room of the market. The liquor storage room, or cage, is located in the rear of the store in an area not normally open to customers. The rear of the store is separated from the front or sales area by a wall in which there are two archways. The liquor cage is secured by a padlock. When an investigation was made the lock was found on the hasp. There was no evidence of a forcible entry. There was evidence that someone had left by the rear door.

Garcia was seen driving his ear by a police officer who possessed warrants for Garcia’s arrest for traffic offenses. The officer did not know Garcia was a suspect in the burglary. After making the arrest the officer searched Garcia’s car and found four cases of Jim Beam whiskey, two of which were identified as having been taken. .

We shall first consider the question of whether or not the evidence supports the judgment.

[683]

Burglary is defined as the entry by a person of any house, room, apartment, tenement shop etc., with intent to commit larceny. (See Pen. Code, § 459.) The statute does hot require that there be a breaking into any structure. Burglary is committed if a person enters a store with the intent to commit theft and is guilty of burglary although the entry was made through the public entrance during business hours.