People v. Helsley

California Court of Appeal Dec 13, 1940 No. Crim. 3400Published

Before: York

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Holding. The court affirmed the convictions for first-degree burglary, holding that the trial court reasonably inferred the crimes occurred at night based on the circumstances, and that the trial court lacked jurisdiction to vacate the judgment after an appeal had been filed.

Issues

Whether the evidence was sufficient to support a finding of first-degree burglary based on the time of the offense.
Whether the trial court retained jurisdiction to vacate a judgment of conviction after an appeal had been filed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it was a reasonable conclusion for the trial court to make that the appellant would hardly take the risk of breaking into these buildings in a heavily populated residential district in broad daylight”

“The effect of an appeal is to remove from the jurisdiction of the trial court the subject matter of the judgment or order appealed from, and it therefore has no power to vacate or set it aside.”

YORK, P. J.

Appellant was charged in an information containing four counts with the crime of burglary. He entered a plea of “guilty” as to Counts 3 and 4 and applied for probation. The court denied the application for probation and found the crimes to be burglary of the first degree as to these two counts. Counts 1 and 2 were dismissed in the interest of justice.

[936]

This appeal is prosecuted from the judgments of conviction and relates particularly to the order fixing the crimes as burglary of the first degree.

Stipulations were entered into for the purpose of fixing the degree of the crimes as follows: As to Count 3: “The Court: According to the probation officer's report, Count 3 charges that some time between the hours of 2:00 A. M. and 6:00 A. M. on the 6th day of September, 1939, the defendant burglariously entered the residence of Emil Rinus, 12881/2 West 39th Street, Los Angeles, while Hr. Rinus was sleeping in bed, and he stole about $35.00 in cash from a purse belonging to Mrs. Rinus, entrance being gained through the front window after a screen had been cut and the catch broken. The money was removed from a table in the front part of the house. Is it stipulated those are the facts as to this burglary, for the purpose of fixing the degree?

“Mrs. Root: I will so stipulate.

“Mr. Barnes: So stipulated.”

With respect to Count 4: “The Court: In Count 4 it is charged that at some time between the hours of 3:00 and 6:00 A. M. on the 1st (3rd) day of September, 1939, the residence of one Ileen Bleiek, 1191 West 39th Place, in Los Angeles, was burglarized by the defendant, entrance being gained through an open rear door, and a purse was stolen off of a davenport while Miss Bleiek was in bed asleep in the bedroom, $15.00 in cash being stolen. Is it stipulated those are the facts for the purpose of fixing the degree?

“Mrs. Root: So stipulated.

“Mr. Barnes: So stipulated.”

It is here contended by appellant that the judgment of burglary of the first degree is contrary to the law and the evidence for the reason that the sun arose on September 9, 1939, at 5:28 A. M., and at 5 .-30 A. M. on September 6th, and so far as is shown by the record the entry could have been made after sunrise, thus constituting the offenses burglary in the second degree.

People v. Helsley

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YORK, P. J.

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