People v. Muela

FOURT, J. This is an appeal from a judgment of conviction of burglary in the second degree.

In an information filed in Los Angeles County on February 3, 1966, defendant was charged with burglarizing Millie’s Cafe on January 7, 1966, and that on or about September 17, 1958, defendant had been convicted of the crime of burglary, a felony, in Los Angeles County and further had been convicted in Los Angeles County on July 30, 1962, of a felony and had served a term therefor in a state prison. Defendant admitted the charged prior convictions and pleaded not guilty. In a jury trial he was found guilty as charged (Pen Code, § 459) and it further was found to be burglary in the second degree. Defendant was sentenced to the state prison. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: On January 7, 1966, Mrs. Laurita, the owner of “Millie’s Cafe” on Santa Monica Boulevard, arrived at the place of business at about 8 a.m. and found that the glass of the front door had been broken out. She entered the cafe and saw what appeared to be bloodstains around the place. She saw also that a metal plate over the coin bag was missing. Cigarette packages which were offered for sale in the place were scattered over the bar and some appeared to be bloodstained. Some cigarette packages were missing entirely. Also missing was a “Bank of America” coin bag containing about $15 in coins which Mrs. Laurita had left in a roaster in the kitchen. No one had been given permission to enter the cafe the evening before.

At about 9 :40 a.m. of January 7, 1966, Officer Smith, of the Los Angeles Police Department, and a fellow officer were called to an address on North Ardmore Street by a police radio call. Upon arriving at that address they were told by the manager of the apartment house at the location that she had called them since on the evening of January 6, 1966, she had witnessed a fight between one of her tenants and a cab driver; that when she went to the rear of the building on the morning of January 7th, she saw what appeared to be blood spots and sne was concerned over the health and safety of her tenant. The officers saw what appeared to be numerous blood spots on the ground and on the door. After knocking on the front and rear doors and receiving no response, the officers had the manager unlock the rear door and accompany them into the apartment to check on the occupant’s health. The rear door opened into the kitchen of the apartment and there the officers saw some beer and whiskey bottles on the floor, [488]