People v. Gilbert

FORD, J.

This is an appeal from a judgment of conviction of burglary of the first degree and from an order denying a motion for a new trial.

1

The sole contention of the appellant

[725]

is that the trial judge (the appellant having waived his right to trial by jury) should have determined the offense to have been burglary of the second degree rather than of the first degree.

2

The evidence upon which the conviction rests will be summarized. On January 27, 1960, at about 6 :20 p. m., Arthur Rene stopped at the home of Mary Elizabeth Tucker in the city of Long Beach so that he might take care of newspapers left there during Mrs. Tucker’s absence. It was just getting dark. As he was walking up to the front door, he heard male voices emanating from the garage which was a part of the residential structure and was located “at the front west part of the house.”

3

The door of the garage was closed. He went across the street to a neighbor’s home and called the police. When the officers arrived, Mr. Rene and one of them entered the house by means of a key which Mr. Rene had. Mr. Rene turned on some lights. Someone jumped through a plate-glass window in the dining area. Hearing some movement in the hallway, Mr. Rene and the officer went toward a bedroom. At that moment, the sound of a shot came from the direction of the backyard. The appellant was found in the bedroom. He was holding a crowbar but, as the officer approached, he raised his arms and said, “Don’t shoot.” Handcuffs were placed on the appellant. Mrs. Tucker was called and she returned home in about 15 minutes. A number of articles of jewelry which belonged to her were found in the appellant’s pockets.

Alan Evenson, the police officer who accompanied Mr. Rene into the house, received the call from the station to go to the house at about 6 :33 p. m. He did not see the crowbar when he entered the bedroom. Another officer found it there at a later time and removed it.

Mrs. Tucker had departed from the house about 11:20 a.