People v. Gonzales

LILLIE, J. Defendant and two codefendants, Mayor and Linarez, were charged with burglary (§ 459, Pen. Code); defendant was charged with three prior felony convictions— grand theft (1959) and violation, section 10851, Vehicle Code (1961) and section 11500, Health and Safety Code (1961)—■ all of which he admitted. Called for trial, on motion of defendant and Mayor, the cause was severed; thereafter Linarez was tried separately for the same offense and convicted. The cause of defendant and Mayor was tried to a jury; both were convicted of second degree burglary. Defendant appeals from the judgment.

Around 11:25 a.m. on February 18, 1966, Officer Westray, on patrol in a police car, was directed to the residence of Mr. and Mrs. Parks; he observed from the outside through the dining room window that the rear door of the residence was open, returning to the police car he relayed his observation by radio to the station. As Officer Courtney turned into the alley at the rear of the residence he observed a car parked on the street with one door and the trunk open and Linarez standing near it; he recorded the license number. As the officer approached the rear of the house someone appeared in the doorway; he called to him to halt but the person turned around and ran back into the house; he approached the rear doorway [504]and heard Officer Westray at the front of the house call to someone to halt, then heard a shotgun blast. Officer Westray had gotten his shotgun from the patrol car and returned to the northeast corner of the lot; he saw Officer Thomas at the northwest corner; at that point the front door suddenly opened and defendant and one Leon came running out; Officer Westray shouted to them to halt, they looked directly at the officer, crouched, turned and ran back toward the house; defendant ran into the house again but Leon stopped by a bush near the front of the house, turned toward Officer Westray and dropped onto one knee behind the bush; unable to see Leon’s hands, Westray believed he might be armed and about to fire; he then shot Leon. The front door of the house slammed shut; Officer Westray anticipating that defendant would go out the back door, ran along the side of the house and into the back yard where he met Officer Courtney and went to the back door; he found defendant standing in the doorway of the rear bedroom and took him at gun point out the front door turning him over to Officer Thomas. Officer Westray returned to the house and found Mayor lying underneath the bed; he ordered him out and took him outside to the other officers; Leon who had been shot was lying on the front porch with a sock on one hand, another sock was lying under him.