People v. Montalbano

DOOLING, Acting P. J. Defendant was convicted of burglary of the first degree and, by reason of two prior convictions of burglary, was adjudged an habitual criminal. He appeals from the judgment of conviction and from an order denying his motion for new trial.

Appellant raises no question of the sufficiency of the evidence to support his conviction of burglary. He complains only: (1) that the court erred in instructing the jury that if they should find appellant guilty of burglary such burglary could only be burglary of the first degree and (2) that the court erred in adjudging appellant to be an habitual criminal since such adjudication depended on his conviction of first degree burglary. (Pen. Code, § 644, subd. (a).)

It is well settled that where a crime is divided into degrees the trial court may properly instruct the jury that if they find the defendant guilty they must find him guilty of the higher degree in any case where under the uncontradicted evidence he is guilty of the higher degree if guilty at all. The Supreme Court thus expressed the rule in a homicide case, People v. Alcalde, 24 Cal.2d 177,188 [148 P.2d 627] :

“It is proper to refuse to give an instruction as to a lesser degree, or as to an included lesser offense, if the evidence warrants only a verdict of first degree murder in the event the accused is guilty at all.”

The same rule has been applied in eases of burglary. (People v. Kruger, 100 Cal. 523 [35 P. 88] ; People v. Tolli, 93 Cal.App. 62 [268 P. 1078] ; People v. O’Brien, 53 Cal.App. 754 [200 P. 766] ; People v. Howard, 39 Cal.App. 216 [178 P. 865].) Indeed appellant does not dispute this rule, his only contention being that on the evidence presented it was not established without contradiction that the building bur[626]glarized was inhabited so as to bring the ease within Penal Code, section 460, which makes the burglary of “an inhabited dwelling-house or building committed in the night-time” burglary of the first degree,

The burglary was admittedly committed in the nighttime, somewhere between midnight and 1 a. m. The record makes it clear that the claim that the building was not inhabited is an afterthought, since appellant’s counsel at the trial (not the attorney now representing him, who is acting under appointment by this court) himself developed the fact on cross-examination of a witness for the prosecution, as the following excerpt from the transcript shows: