People v. Romero

[591]

FOURT, J.

This is an appeal from a judgment of comviction of burglary.

In an information filed in Los Angeles on March 3, 1967, defendant was charged with codefendant George Figueroa with burglarizing the residence of George Gramata in the City of Bell on February 7, 1967. It was further charged that Figueroa previously had been convicted of two felonies and had served a term in prison on each of them and that Bomero previously had been convicted of a violation of section 11501 of the Health and Safety Code, in October 1960 and had served a term in prison therefor. Bomero pleaded not guilty and severance from his codefendant was granted. The. charged prior conviction with reference to Bomero was admitted. In a jury trial defendant was found guilty of burglary in the second degree. Defendant was sentenced to the state prison, the term to run concurrently with any other term which defendant was to serve. A timely notice of appeal from the judgment was filed.

A résumé of some of the facts is as follows: George Gramata resided at his home in Bell on February 7, 1967. When he left his house in the morning the place was in order. At about 1:15 p.m. Gramata was returning to his home and noticed as he approached, a car parked in front with two men standing near the back of the car. Gramata also saw that the back gate to his premises was open and that the two men in front were starting to open the trunk to the ear. When Gramata reached his house, one man was standing by the car and the trunk of the car was open. The front door of Gramata’s house was open. Gramata asked the man at the parked car what was taking place and the man said, “Nothing much, I guess.” The man then closed the trunk to the car and got into the car. Gramata entered the front door of his house and saw a man leaving a bedroom with a pillow case. Gramata grabbed at the pillow case and struggled momentarily with the man who dropped the pillow case and ran out the front door. Inside the pillow case was Mrs. Gramata’s jewelry which had been kept in a drawer in the bedroom. Gramata was knocked down by his assailant and upon the man’s leaving, he got up and, hearing a voice on the back porch area of his house, looked out and saw defendant Bomero, who was then about seven feet away, leaving through the back door. Gramata also looked out of the kitchen window and saw Bomero move by swiftly. The victim then ran out of his front door and saw Bomero and another man running down the