People v. Drumgo

FOURT, J.

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

In an information filed in Los Angeles on January 10, 1967, defendant was charged with burglarizing Martin's Radio Center in South Gate on or about December 16, 1966. Defendant pleaded not guilty, a jury trial was waived and it was stipulated that certain testimony taken at the preliminary hearing could be considered by the judge. Other evidence was introduced at the trial. Defendant was found guilty as charged and the court fixed the burglary as being in the first degree. Defendant was referred to the California Youth Authority; however, that Authority after a few months determined that defendant was not capable of reformation under their discipline and on September 5, 1967, the court in lieu of granting a motion for a new trial reduced the offense to burglary in the second degree and sentenced the defendant to the state prison (pursuant to § 1202b, Pen. Code). Ultimately a notice of appeal was filed.

A résumé of some of the facts is as follows: at about 3:15 a.m. of December 16, 1966, Max Roberts, the night watchman at Martin’s Radio Center in South Gate, was asleep in his quarters at the rear of the shop. He was awakened by the sound of breaking glass and a crash in the front part of the building. There were floodlights which illuminated the front of the store. While running to the source of the noise, Roberts saw two male Negroes inside the front part of the store, the first of whom was about 12 to 14 feet inside and the second one about 4 to 5 feet inside. The first of the two men was running toward Roberts and Roberts fired his gun at him. The first of two shots must have hit this man for he bent down, turned around and ran out of the store through the front door, the glass in which had been broken.

[481]

The second man (the defendant herein), ran from the store when Roberts started to shoot.

The owner of the store, Leslie Huckins, left the store intact about 6:30 p.m. December 15, 1966, and gave no permission for anyone not an employee, to enter. He returned to the store about 4 a.m. December 16, 1966, and found the front door smashed and glass all over the floor. Inside the door on the floor of the store was a milk crate which had not been there when he left the shop the evening before.