People v. Latourell

California Court of Appeal Nov 18, 1931 No. Docket No. 1637.Published

Before: Sturtevant

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Holding. A defendant cannot challenge a conviction for second-degree burglary on the grounds that the evidence did not support that specific degree when the evidence would have supported a conviction for the more serious first-degree burglary.

Issues

Whether a defendant may challenge a conviction for second-degree burglary when the evidence would have supported a conviction for first-degree burglary.
Whether a conviction for a lesser degree of burglary constitutes a miscarriage of justice when the evidence supports a higher degree.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When, as here, the defendant receives a verdict more favorable to himself than the facts warrant he may not complain”

“If the jury, under these circumstances, found the degree to be second when it should have found it to be first this court may not reverse the judgment.”

“That a crime was committed is clear. It follows that in no proper sense can it be said there was a “miscarriage of justice,” and, therefore, the judgment may not be reversed.”

STURTEVANT, J.

The district attorney filed an information against the defendant charging him with the commission of the crime of burglary on August 10, 1930, in San Francisco. The defendant was arrested, he pleaded not guilty, and thereafter he was tried and convicted. By its verdict the jury fixed the degree as the second degree. From the judgment entered on the verdict the defendant has appealed.

He makes one point. He claims there was no evidence that the act was committed in the daytime and therefore there was a failure of proof on that element of the offense and that the defendant should have been acquitted. In this connection it is his contention that burglary of the first degree and burglary of the second degree are separate and distinct offenses and that the latter is not included in the

[387]

former. The manner of presentation may be new, but, in substance, the point has been made and ruled against the contention of the defendant

(People

Barnhart,

59 Cal. 381;

People

Maroney,

109 Cal. 277 [41 Pac.

1097]; People

Lowen,

109 Cal. 381 [42 Pac. 32];

People

Black,

80 Cal. App. 605 [251 Pac. 321]).

People

Barnhart,

59 Cal. 381, is a full treatment of the subject. Among other things it is there said: “But it is a sufficient answer to the objection taken on behalf of the defendant, to say that he is not prejudiced by the error complained of. . . . (Sec. 1404, Pen. Code.) ” However, this defendant asserts that it is not “a sufficient answer”. He says such a verdict rests on no evidence, that it stands on no better footing than if he were charged with burglarizing a house in San Francisco and convicted of burglarizing a house in San Mateo. He cites

People v. Latourell

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STURTEVANT, J.

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