People v. Brown

VAN DYKE, P. J. This is an appeal from a judgment entered upon a jury’s verdict which found appellant guilty of second degree burglary. No brief has been filed in support of his appeal. At his request an attorney was appointed to represent appellant herein who has informed the court that in his opinion the appeal lacks merit. Thereafter this court made an independent study of the entire record and after such study we agree with appointed counsel. The record discloses one tenable contention of error, but in view of the entire record we have concluded that it is not sufficient to justify a reversal under the constitutional admonition.

At approximately 3 o’clock in the morning of November 18, 1958, the Vallejo police were called to a small restaurant which the owner had closed and locked less than an hour before, taking with him all money, except pennies, which had [534]been in the cash register. The officer who first arrived at the scene apprehended appellant and one Roy Morgan just as they emerged from the burglarized building. Morgan admitted that he had broken into the building for the purpose of committing burglary. He was carrying out a large quantity of coins recovered from pinball and vending machines, together with cigarettes and lighters, all of which he admitted he had stolen while in the building. No identifiable stolen goods were found upon appellant’s person.

At the trial both Morgan and appellant testified that on the evening of November 17th they had been drinking with one Joe Valentine in Oakland; that appellant fell asleep in the back seat of Valentine’s car after the three had left their rendezvous. Morgan testified that while appellant slept, he and Valentine planned the burglary and drove to Vallejo to commit it; that appellant was still sleeping when he and Valentine forced a back door of the restaurant. Appellant testified that when he woke up Valentine, who had returned to the car, told him that Morgan was burglarizing the restaurant, whereupon appellant said he went to the restaurant to get Morgan to leave, as he, appellant, did not want to be connected with the crime. This explanation as to appellant’s innocence from participation in the admitted burglary was obviously disbelieved by the jury, since otherwise they would not have convicted him. Appellant was charged with two prior convictions, one forgery, the other burglary. He had served prison terms for both. Appellant admitted the charge of two prior felony convictions, and on taking the stand to testify in his own behalf he admitted the same before the jury. Appellant's testimony varied from that of the officers. Appellant said that when he went to persuade Morgan to come out of the building he did not go into the building; that as he stood near the point where Morgan had entered he was arrested. The officers, however, testified that Morgan came out of the building first; that appellant followed him and both were arrested. In an extrajudicial statement made after the arrest, appellant, according to one of the officers, said that he and Morgan had been brought to Vallejo by two other persons. It is apparent that the evidence is amply sufficient to justify appellant’s conviction.