People v. Russell

SHINN, P. J.

Defendant with a eodefendant, William Briggs, was accused by information of the crime of burglary. In addition, the information charged defendant with three prior felony convictions. Defendant was represented by a deputy public defender. He denied guilt and the prior convictions. A jury trial was waived and by stipulation the cause was submitted on the testimony at the preliminary hearing, with the right to offer additional evidence. No evidence was presented on behalf of the defense. The court found defendant and his codefendant Briggs guilty, found the burglary to be of the second degree and that Russell had

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suffered the former convictions. Probation was denied. A motion for a new trial was denied and defendant was sentenced to state prison. Bussell appeals in propria persona from the judgment.

Defendant applied for appointment of counsel on the appeal. We read the record and denied the application for the reason that the appeal is obviously without semblance of merit, as will hereinafter appear.

Defendant has filed comprehensive briefs in which he urges reversal on the grounds of insufficiency of the evidence, that the evidence introduced against him was obtained by illegal search and seizure, and that he was deprived of a jury trial in the determination of the prior convictions.

Evidence adduced at the trial showed that the building occupied by Paul’s Duck Press, a restaurant located in Los Angeles, was entered some time between 10 p.m. on September 4 and 11 a. m. on September 5. Entrance was gained through an exhaust vent in the kitchen ceiling and at least three cases of liquor were stolen.

At approximately 1 a. m. on September 5, police officers patroling the area observed an automobile emerging from an alley immediately adjacent to the burglarized premises. The officers noticed that the car’s rear end hung low, indicating excess weight in the trunk. The rear license plate was not illuminated. As the car went over some railroad tracks the trunk lid flew open and one officer observed several cases of liquor therein. The car stopped, defendant and his codefendant got out and walked to the rear. Briggs displayed his driver’s license upon request of the officers and he was then asked what was in the trunk. Briggs attempted to lock the trunk, but desisted when the officer again asked the question. Briggs raised the trunk lid displaying six eases and three bottles of Ballentine Whiskey. Briggs said he was looking for his mother’s home. Belative to the liquor in the trunk he stated he was delivering it to a Hollywood liquor store for a Mr. Tucker. Defendant stated that he was helping Briggs deliver the whiskey. He was unable to tell the officer the address of the liquor store from which the liquor had come. He also told the officer that he knew he need only tell them his name and address, and that anything else he told them might incriminate him. Some of the liquor in the trunk of the car was identified as that taken from Paul’s Duck Press restaurant. A microscopic examination of paint particles taken