People v. Cline

BURKE, P. J.

Defendant was charged in count 1 with assault with a deadly weapon, a sawed-off shotgun, on a police officer (Pen. Code, §§ 245, subd. (b), and 12022); in count 2 with possession of a sawed-off shotgun eoncealable on the person having a barrel less than 12 inches long (Pen. Code, § 12021) ; and in count 3 with possession of a sawed-off shotgun with barrel less than 18 inches long (Pen. Code, § 12020). Prior felony convictions for robbery and burglary were alleged and subsequently a prior conviction for grand larceny was added to the charges.

Appellant was acquitted by a jury of count 2 and convicted of the first and third counts. A motion for new trial was denied and probation was denied. No sentence was imposed as to count 3, as only one act was involved. Appellant was sentenced to state prison for the term prescribed by law as to count 1 and was adjudged a habitual criminal under section 644, subdivision (a), of the Penal Code, the court reserving the right to alter provisions as to the habitual status within 60 days. Defendant appeals.

On March 1, 1962, a passing motorist saw defendant, with a rifle in his hand, near a gas station and telephone booth in Glendora. The motorist reported to a sheriff’s patrol car and two deputy sheriffs proceeded to the service station and observed a man standing in the rear; an employee was in the building at the cash register; the lights of the station were off except inside the building and a light .shone in the phone

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booth outside the station. The man outside began to run and appeared to be wearing a mask and carrying a sawed-off shotgun. The officers pursued on foot commanding defendant to halt, and after an exchange of shots, during which both defendant and an officer were wounded, defendant was cornered in a doorway. The police ordered him to throw down his gun. He complied. There was an empty casing in the chamber of defendant’s shotgun. Near defendant on the ground were found some empty shotgun shells, a Halloween-type mask, a gray hat and a pair of gloves.

Defendant denied the commission of the offenses charged. He testified that he went to La Puente the evening of the crime to find some work. A friend had driven him there and left him, and defendant was endeavoring to locate a certain Arthur Smith who had told him of available work in the area. He did not have a gun or rubber mask. He wore a trench coat. As he approached the scene of the crime he heard gunshots and knowing he had a record became concerned. He passed the driveway of the corner house, saw someone running and started to make a hasty retreat when he was hit with a magnum shot.