People v. Michaels

[196]

FOX, P. J.

In an information filed by the district attorney the defendants Michaels and Montoya were accused of burglary in two counts. In Count I it was alleged that defendants entered the repair shop of Superior Optical Company on or about January 9,1960, with the intent to commit a felonious theft therein. In Count II it was charged that the defendants entered the building occupied by Steve’s Ringside Inn on the same day and for the same purpose. Each defendant was charged with having suffered a prior felony conviction for which he served a term of imprisonment.

Following a jury trial, the defendants were found guilty under both counts of attempted burglary, a felony, which is a lesser and necessarily included offense in the crime of burglary. Probation was denied and defendant Montoya

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was sentenced to the state penitentiary. He has appealed from the judgment and from the order denying his motion for a new trial.

Appellant went into the Ringside Inn, located in the vicinity of Venice Boulevard and Grand Avenue, in Los Angeles, at approximately 6 p.m. on January 8, 1960. He ordered a glass of beer. Michaels, the codefendant, arrived at the inn some 30 minutes to an hour later; he also ordered a beer. He joined Montoya; they conversed and watched the fights on TV. They left the bar right after the fights, about 8 o’clock. The Ringside Inn closed at approximately 11:15. Before closing, the bartender cheeked the restrooms and locked the premises.

The Superior Optical Company was located adjacent to the Ringside Inn. The men’s restroom in the inn was alongside the women’s restroom in the optical shop, separated only by the wall between the two buildings. During the early hours of the morning of January 9th, Officers Thompson and Rudin, of the Los Angeles Police Department, received radio instructions to go to the Ringside Inn. Officer Thompson went to the rear of the Superior Optical Shop. He observed defendant Michaels open the door and step out of the building. He was immediately placed under arrest by the officer. This was at approximately 2 :40 a.m. The only lights in the area were the street lights. After handcuffing Michaels, Officer Thompson focused the light of his flashlight inside the open door at the rear of the optical shop. In the beam of his flashlight the officer saw appellant standing inside the shop approximately six feet from the rear door. Appellant was wearing dark clothing. He was