People v. Blackwell

FOURT, J. This is an appeal from a judgment of conviction of second degree burglary and an attempted appeal from an order denying a motion for a new trial.

In an information filed in Los Angeles on March 21, 1966, Buhe Marvin Blackwell and James Marion Beed were jointly charged in count I with burglarizing a building occupied by Clanton Block Corporation on or about March 1, 1966, and in count II with burglarizing a building occupied by M. W. Concrete Company and Ladd Beady-Mix Concrete Company on or about March 1, 1966. Blackwell was further charged with six prior felony convictions; (1) in Texas in 1927 a burglary conviction, (2) in Texas in 1932 a conviction for arson, (3) in Texas in 1935 a conviction for burglary, (4) in Texas a 1940 conviction for burglary, (5) in California a 1948 conviction for burglary, and (6) in California a 1957 conviction for forgery. Each defendant entered a plea of not guilty and Blackwell denied the prior convictions. By stipulation the cause was submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing with each side reserving the right to offer additional evidence. Further, the exhibits received at the preliminary hearing were deemed received into evidence. The prosecution put on for further testimony one of the officers who had testified at the [253]preliminary hearing. Neither of the defendants saw fit to testify. Bach of the defendants was found guilty as charged. All of the alleged prior convictions were found to be true excepting number three at which trial defendant apparently was not represented by counsel and the record thereof on its face did not disclose that he had waived his rights thereto. A motion for a new trial was denied and Blackwell was sentenced to the state prison. He has appealed from the judgment of conviction.

A résumé of some of the facts is as follows: The respective places of business which were burglarized, Ladd Ready-Mix Concrete Company, 25444 San Fernando Road, and Clanton Corporation, 25446 San Fernando Road, were regularly closed on Monday night, February 28, 1966. The premises in each instance were in good condition when closed and neither defendant had permission to make any entry or to take anything from either of the premises.

Deputy Sheriff Wigham and Deputy Sheriff Eddelman between 2 a.m. and 3 a.m., March 1, 1966, were patrolling the area in a sheriff’s automobile. They drove onto a dirt extension road of the San Fernando Road which leads to the two premises above mentioned. The officers saw a hole, about 4 feet square, cut in the fence on the north side of the road which surrounds one of the plants. They also noted two tire or wheel tracks coming from the fence opening and leading across the dirt road. Upon a search of the area the officers found behind some bushes a dolly with numerous electrical tools and other tools and an adding machine and other electrical office equipment. Thinking that the items were stolen property under the circumstances, the officers got back into the official ear, exited from the dirt road and turned south into the Hi-Chiek Drive-In area. The business operation at the drive-in was closed. From that vantage point, the officers watched the area of the dirt road to see whether anyone might make an attempt to pick up the property which appeared to have been stolen and cached in the brush at the side of the dirt road. In about five minutes the officers saw a black and white automobile going past the area where the sheriff’s unit was parked. A passing train blocked the entrance to the dirt road and the black - and white automobile then went northerly and shortly thereafter proceeded' southerly to the front of the restaurant, -turned around and then proceeded onto the main road toward the dirt road, off the main road and onto the dirt road leading to the area of the premises of the respective victims heretofore