People v. Clark

NUTTER, J. pro tem.

*

After a court trial, appellant was convicted of burglary in second degree. He was sentenced to state’s prison; the sentence to run concurrently with another sentence. The appeal is from this judgment. Appellant contends that the evidence was insufficient and the trial court abused its discretion in denying a motion for a new trial.

Before a judgment may be reversed for insufficiency of the evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court.

(People

v.

Alison,

189 Cal.App.2d 201, 205 [10 Cal.Rptr. 859].) We must affirm the conviction.

On or about 11a.m. on June 1, 1967, Michael Walker and his wife left their residence at the Sunset Marquis located at 1200 North Alta Loma, Apartment 305, in West Hollywood. Walker and his wife were the sole residents of the apartment. Walker locked his apartment when he left and Walker gave no one permission to enter the apartment or remove anything from it. When he left his Telefunken portable phonograph had been in place, open and plugged into a socket. Also, he had three sportcoats and five pairs of slacks hanging in his closet. The housemen and maids all had master keys to the rooms in the building including the Walker apartment. Appellant had been employed at the apartment house as a houseman from August of 1966 to May of 1967. He had a passkey which he had not returned following his employment termination. Crouch, the manager of the building, observed appellant at approximately 5 :30 p.m. on June 1, 1967, in the subterranean garage of the apartment building standing next to a sheet tied up in a bundle. Crouch asked appellant what the bundle was and appellant stated, ‘ ‘ I don’t know. I found it.' ’ Crouch then asked appellant if he was going to keep the bundle in his car. Appellant answered “yes.” Crouch asked

[295]

appellant why he had not brought the bundle to the office and appellant replied that he was going to bring it later. Crouch saw a phonograph, sportcoats, slacks and a pair of shoes in the bundle. He then asked appellant to come to his office, which was in the same building, and they both proceeded to go there. Crouch asked appellant to wait while he went to call the police. He then went to his office and asked his wife to call the police. When he came back to the outer office appellant was gone. Crouch did not see appellant again that day. The articles found in the bundle were later identified as the articles taken from Walker’s apartment. Crouch returned the articles to Walker’s apartment before Walker returned. However, he did not plug in the phonograph. Walker testified that, with the exception of this unplugged phonograph, all other articles were in the position they had been when he left the apartment in the morning.