People v. Bernal

SHEPARD, J. This is an appeal by defendant from a judgment of conviction of burglary, second degree (Pen. Code, § 459.)

Facts

There is no substantial dispute as to the physical facts. Only inferences and evidence of knowledge and intent are in possible conflict. During the evening of October 22, 1961, appellant and one Richard Prank White were patrons of the Goldstone Bar, Barstow, California. Some time during the evening, White unscrewed the screws on the inside of the back door latch or lock. He did not tell appellant of this but claims that some two weeks previously he had proposed to her that they burglarize the Goldstone and that she agreed. He testified that he also talked to her about it an hour or so previous to the burglary but that she seemed pretty drunk and he told her to go home but she insisted on going with him and he consented. She denies such conversations or knowledge and denies intent to steal at the time of entry.

During the evening both had a large number of drinks of an alcoholic beverage made of one ounce of gin to a glass of grapefruit juice. The bartender estimated 12 to 17 drinks [407]apiece until they left at 12 midnight. They claim they went then to a bar called Mickey’s and had more drinks. They were seen there by one of the officers. Next, they spent from 2 a. m. to 3 a. m. at the New City Café, drinking coffee and he eating a sandwich. At 3 a. m. they left the café and went down an alley to the back of the Goldstone. Appellant stood near the alley looking around while White tried to shoulder the door open. Then he kicked it. Before he was able to open it, she moved up close to him. As he opened it and went in, she followed him, walked along the bar past the cash register to a front window where she looked over the street from a stooped or crouched position. White broke open the cash register with a heavy screwdriver. The entry was without the owner’s permission. Three officers entered the broken rear door. Appellant said, “Honey, there are the cops,” and dropped to the floor near the bar, where the officers found her. Another officer had seen her looking out the front window. While he was watching her she ducked aside out of his sight. Appellant and White were arrested, taken to the police station immediately and booked.

Circumstantial Evidence Instructions

Appellant requested and the court refused to give certain instructions generally known as CALJIC forms 26, 27 and 28. These instructions, which simply elucidate the rule of reasonable doubt as applied to circumstantial evidence cases, have been repeatedly approved, are well known, and need not here be repeated. In the recent case of People v. Moore, 196 Cal.App.2d 91, 97, 98 [6-7] [16 Cal.Rptr. 294], this court reviewed many of the authorities on the necessity for an instruction of this type. What was there said sufficiently covers our opinion now that “if proof of a significant element of the charge depends upon circumstantial evidence the instruction in question should be given,” but that “if the circumstantial evidence in the case is merely ‘ incidental ’ or ‘corroborative,’ the instruction need not be given.”