People v. Lozano

BROWN (Gerald), P. J.

Jesse Jaime Lozano and Manuel Valdez Ruiz appeal from judgments of conviction entered

[59]

upon jury verdicts of second degree burglary (Pen. Code, §§459, 460). Lozano admitted two earlier felony convictions, Ruiz one.

At 3:30 a.m., November 3, 1965, Police Officer Milburn Wilson saw two men (Lozano and Ruiz) put a bag into a trash can near 17th and Broadway Streets in San Diego. The men walked away. Wilson opened the trash can and found a First National Bank money bag containing $260.13 in coin, primarily Kennedy half dollars, Franklin quarters and liberty head dimes. Wilson apprehended and arrested the men. Lozano possessed a hot wire device for starting automobiles and four Kennedy half dollars.

Later in the morning, Detective Paul Novotny investigated a burglary which had occurred during the night at a market on 12th Street, between F and G streets, a short distance from 17th and Broadway. The owner reported missing cartons of Lucky Strike cigarettes, his collection of Kennedy half dollars, Franklin quarters and liberty head dimes, and money from the cash register. Novotny then went to the jail, and warned Lozano and Ruiz of their consitutional rights as required by

Escobedo

v.

Illinois,

378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and

People

v.

Dorado,

62 Cal.2d 338 [42 Cal. Rptr. 169, 398 P.2d 361]. He obtained an opened Lucky Strike cigarette package from Ruiz. He learned they were walking when arrested because Lozano’s automobile had stalled somewhere on Island Street; Lozano possessed two traffic citations covering a Jaguar with Texas license plates; and Lozano hot-wired the car to start it. Novotny suspected Lozano and Ruiz had stolen the Jaguar and the Jaguar contained items stolon from the market.

Novotny found the Jaguar on G Street, just east of 16th Street. Looking into the Jaguar he saw wires dangling under the dashboard near the ignition, and an opened carton of Lucky Strikes and coins on the front floor. He could not see the Jaguar’s registration slip. He entered the unlocked Jaguar, picked up the cigarettes and coins from the front floor, found three cartons of Lucky Strikes under some clothing on the rear floor and four cartons of Lucky Strikes and a crowbar in the unlocked trunk. Still looking for the registration slip or some indicia of ownership, he discovered a pocket in the leather lining of the front door; the registration slip was in it. Novotny did not have a search warrant.