People v. Cuellar

WOOD, P. J. Defendant Cuellar and one Harold Lumar were accused of attempted burglary. Cuellar admitted an allegation of the information that he had been convicted previously of burglary, a felony. In a nonjury trial Cuellar was adjudged guilty of attempted burglary of the second degree, and Lumar was adjudged not guilty. Cuellar appeals from the judgment and the order denying his motion for a new trial.

On January 5, 1963, about 5 p.m., when Mrs. Blem, the owner of a food store at 2521 La Salle Street in Los Angeles, closed the store for that day, the windows of the building were in good condition and everything in the store was in order. When she returned there about 11 p.m. of that day, after having received a telephone call, she found that the glass in the front door and the back window had been broken and that glass was inside the store and on the window ledge. She had not given anyone permission to enter the store.

About 10 p.m. of said day, when Mr. Yalenz, who resided in an apartment above the store, went downstairs he saw the two defendants standing at the back of a laundromat which was next to the store. He heard one of them say, “Let me in through the back.” After a conversation with them in which Yalenz indicated that he was going to the liquor store (a block away), one of them asked him to bring back a pint of liquor, and gave him the money to pay for it. About five minutes after he arrived at the liquor store, the defendants came there and he gave the liquor to them and then returned alone to his home. About 10 minutes thereafter he heard a noise at the front door. He did not see the defendants after he left the liquor store.

About 10:30 p.m. of said day, while Mrs. Yalenz, wife of the preceding witness, was in her home above the store she heard an unusual noise which sounded as if someone were pounding on something. Then she went to her kitchen window, heard the crash of glass, looked outside, and saw defendant Cuellar squatting on the ledge of the back window of the food store. When she asked him what he was doing there, he looked up at her, jumped off the ledge, and went hurriedly through the laundromat door. A large electric light was on the corner of the building, and when defendant looked up at [754]Mrs. Yalenz she saw his face for a period of approximately three seconds.

About 10:15 or 10:30 p.m. of said day, while Mrs. Boone, who lived across the street from the store, was outside her house she heard glass breaking. Then she saw that the front window of the store was broken, and that two men were running down the street. She could not identify those men, but she noticed that one of them was wearing a brown sweater or shirt, and that the other one was wearing a gray or white shirt or jacket.