People v. Alvarado

SHINN, P. J.

Appellant John Alvarado and his brother Manuel were jointly charged with the crime of burglary. The public defender was appointed counsel for both defendants. Manuel pleaded guilty and John not guilty. In a jury trial John was found guilty of burglary and the degree of his crime was found to be of the second degree. Appellant’s motion for a new trial was denied and he appeals from the order and from the judgment.

The uncontradicted evidence shows that a warehouse building located in Los Angeles County was broken into and entered by Manuel at about 3 :30 a. m. on July 1, 1957. The evidence as to the participation in and commission of the charged crime by appellant was in substance, as follows: One of the police officers, who had proceeded to the warehouse building in response to a burglary alarm, took a position in a passageway at the rear of the building; he heard a noise inside the building, observed a rear window being opened outwards, and saw two persons emerge from the opened window space, drop to the ground, and start to run; he commanded the two persons to halt, identifying himself as a police officer; when the two persons did not stop, he fired one shot toward them ; they stopped and were placed under arrest. He identified one of them as Manuel Alvarado and the other as John Alvarado. Questioned by the officer, appellant replied “that they were just looking around.” In a second conversation held while appellant was under arrest, the officer asked appellant alone what his reason was for going into the building and appellant replied that “he went in to look for a restroom.”

Upon the trial appellant testified that he had been drinking for several hours on the night in question; he was sleeping or dozing in a passageway at the rear of the warehouse; he had not broken into nor entered the building; he was entirely unaware that Manuel had entered the building; he had started to run away from the scene only because he had suddenly been awakened from his stupor and had observed Manuel running, and not because he was aware that a crime

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had been committed or that a police officer was trying to arrest him. Appellant also denied that he had ever told the arresting officer that he had entered the building.

Appellant urges that the evidence was insufficient to show any intent on his part to commit larceny or any felony in entering the warehouse building, even if the evidence be regarded as sufficient to show that he entered the warehouse building. This contention is devoid of merit. While it was necessary for the prosecution to show that the appellant entered the premises with intent to commit a theft, it is settled that such intent may be inferred from all the facts and circumstances disclosed by the evidence; and that, where the evidence is sufficient to justify a reasonable inference that such intent existed, the verdict may not be disturbed.