People v. Chung

THE COURT.

In an information filed by the district attorney, Mickey Nakamura Chung was charged in Count I with burglary in violation of section 459 of the Penal Code; in Counts II, III, IV and V with forgery in violation of section 470 of the Penal Code. A prior conviction for robbery was alleged and charged against defendant with respect to each count. Defendant pleaded not guilty and denied the prior. Trial was by the court, trial by jury having been duly waived and pursuant to stipulation of defendant and all counsel the cause was submitted to the court on the testimony contained in the transcript of the proceeding had at the preliminary hearing.

It was further stipulated that neither side is to submit any further evidence. Defendant did not testify. Defendant was found guilty as charged. The court fixed the degree of burglary to be second degree. No finding was made on the prior conviction alleged. Probation was denied and defendant was sentenced to state prison for the term prescribed by law on each of the counts charged. The corrected judgment found in the clerk’s transcript does not indicate whether the sentences were made to run concurrently or consecutively and, absent an order making them run consecutively, it will

be

presumed the court intended that they run concurrently and we so find.

[662]

Defendant prosecutes this appeal “from the judgment and sentence entered on November 10, 1961.” Defendant applied for appointment of counsel ro assist him on the appeal. This court having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona. Defendant was notified and two extensions of time to file a brief were given him. None has been filed. However, we have given the appeal full consideration.

There was evidence of the following facts: Richmond Logan testified he was employed at M. and M. Service Station; that he was the last person to leave the premises and he locked the station in the evening and secured the doors and windows before he left; that he returned to the station next morning and the glass in the door was crushed in; that money, a check protector machine, a payroll stamp and blank cheeks were missing from the service station; that he did not give defendant or anyone else permission to enter the station or to remove money or any of the missing items. He identified the items received in evidence as those taken from the service station.