People v. Madero

KINGSLEY, J.

—Defendant was charged in count I with a violation of section 664 of the Penal Code (attempted murder) and it was alleged that at the time of the offense, defendant was armed with a deadly weapon. Defendant was charged with two .prior.felony convictions, Penal .Code, section..459..in_ 1961, and a .Conviction of burglary in 1963: In .count; IT

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defendant was charged with violating section 12021 of the Penal Code, the dangerous weapons control law.

Defendant was arraigned, he pled not guilty and he admitted the priors. Defendant was tried by a jury and found guilty on both counts and he was found to have been armed at the time of committing the offense in count I.

Manuel Lopez, a high school student, was on the corner of L and Hyatt Streets in Wilmington, with three friends (Joe Huerta, Peter Gutierrez and Roddy Bielma) about 3 o’clock in the morning on January 1, 1966. They had been to a party and were standing and talking to other people. Lopez saw a blue and white 1955 Chevrolet 2-door, with a continental kit on the back of the trunk, pass by. Lopez, who was parked in another ’55 Chevrolet, heard words exchanged by people around the car, and then the blue and white Chevrolet turned around and passed Lopez at about 10 miles per hour. There were three people in the Chevrolet. Lopez was shot in the stomach. Gutierrez and Huerta saw defendant fire the shot that hit Lopez, and Gutierrez saw that the weapon was a little gun. Later that same day, about 3 or 4 p.m., Gutierrez and Huerta saw the same car again, and recognized the same three occupants. They took down the license number ISJ 681,

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and Gutierrez gave the information to Lopez’ sister-in-law, Ernestine. Gutierrez and Huerta identified defendant in a lineup.

On January 2, 1966, on I and Avalon Streets at about 10 :30 p.m., Officer Fisher and his partner saw, and stopped, a blue and white 1955 2-door Chevrolet with a continental kit on the trunk, license number ISY 681. The officers had received a radio call at about 8 p.m. that day stating that a 1955 Chevrolet white over blue, with a continental kit, license number ISY 681 was wanted in regard to a Penal Code 217 that occurred on L and Hyatt Streets the previous day. The officers ordered the suspects out, the suspects complied, a back up unit arrived, the prisoners were handcuffed and told they were under arrest. Officer Hill, one of the officers in the back up unit, advised the suspects that they had a right to remain silent, that before they made any statement they were entitled to the services of an attorney, and that anything they said could be used against them in any subsequent criminal action. After the occupants were arrested, Officer Fisher requested permission to search the vehicle and the driver said, “Go