People v. Berry

FOURT, J.

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

Appellant was originally charged with burglary with explosives (Pen. Code, § 464) but following the preliminary hearing the information was amended to charge him in a second count with burglary. The case was submitted on the transcript of the preliminary hearing augmented by further testimony by stipulation. The court found appellant guilty of burglary, dismissed the first count, denied probation, and sentenced appellant to state prison for the term prescribed by law.

There is no merit to appellant’s contentions that he was arrested without probable cause and interrogated in violation of his constitutional rights.

The record discloses that Samuel Kotnik at around 11 p.m. on the evening of April 27, 1965, reported to the sheriff’s office a suspicious incident which occurred in the vicinity of his restaurant. That evening Kotnik, who lived in Newhall near the restaurant which he owned and operated, was aroused by loud sounds outside his residence. When he went outside to investigate, his attention was attracted by a flash of fire in the phone booth located near his restaurant on San Fernando Road. The area was well lighted and he was able to distinguish the figures of two men. One, who wore a white shirt, was inside the phone booth and the other stood in front of the booth’s folding door. When he yelled out, “What are you guys doing down there?” the men ran to a red pickup truck parked nearby and headed south on San Fernando Road with headlights off.

The sheriff’s office was alerted by Kotnik’s call and only six minutes later Officers Nere and Bertram, proceeding north on San Fernando Road, located a red pickup truck with three occupants traveling south. The officers turned around and stopped the vehicle near the sheriff’s station, less than two miles south of Kotnik’s restaurant. The officers requested that the occupants of the vehicle get out and identify themselves.

[656]

Two acetylene gas bottles with hoses and a torch attached lay in the exposed hed of the pickup, and Officer Nere, touching the tip of the torch, noted that it was still hot.

When appellant and his companions were questioned, they said they had stopped for beers at a couple of taverns, but each denied that they had stopped anywhere after leaving “Ace Cain’s” bar sometime earlier. When questioned about the plainly visible acetylene equipment, appellant said he had borrowed it from a friend and had last used it several hours before. Neither he nor his companions could explain why the tip was still hot.