People v. Holley

FOURT, J.

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

In an information filed in Los Angeles County, appellant was charged with a violation of section 459, Penal Code. It was stated in the information that the appellant had entered a locked automobile with the intent to commit a theft. A plea of not guilty was entered. The public defender was appointed as counsel for appellant. Trial by jury was waived. The cause was consolidated with case numbered 228394, which pertained to Perry Holley, a codefendant. Appellant was found guilty as charged, and the offense fixed as burglary in the second degree.

A résumé of the facts is as follows:

On April 27, 1960, about noontime, Ann Wright parked and locked her 1955 Oldsmobile car in a market parking lot in the 1400 block of East Florence Avenue in Los Angeles. She returned to her car in about 15 minutes and found the left-hand side wind wing broken and all of the property which had been left in the car missing. The property consisted of certain cosmetic materials in cases, and her purse containing a diamond ring. No one had been given permission to enter the car or to take the items in question.

At about 1:20 p. m. of the same day Officer Prause of the Los Angeles Police Department saw a 1951 Chevrolet parked on 23d Street about 4 feet south of the north curb. The right door of the Chevrolet was open and appellant was between such door and the curb, bending over some trash boxes. The appellant looked in the direction of the officer and at once got into the Chevrolet and it pulled away from the curb. The officer pursued the Chevrolet westbound on 23d Street and finally stopped it near San Pedro Street by sounding the horn in his car and showing a red light. When the officer first sounded the horn the appellant leaned forward as if he were fumbling with something on the front floorboards of the Chevrolet car.

The defendant, Holley, when the Chevrolet car stopped got

[540]

out and walked to the rear where the police car was parked. The officer walked to the driver’s side of the Chevrolet car and saw a leather brief case opened on the front seat. This case was later identified as being the property of Ann Wright. There were similar brief cases and many loose items of cosmetics in the back seat of the Chevrolet. Holley told the officer he was a salesman and when then asked to exhibit his salesman’s license, stated that he was not a salesman. Holley then said that he had found the cosmetics in a trash box in the 1200 block of Bast 23d Street. The appellant, during the period of time just mentioned, remained seated in the front seat of the Chevrolet.