People v. Rosenbrock

STEPHENS, J. After a preliminary hearing, defendant was charged by information with violation of section 459 of the Penal Code (burglary). A prior violation of section 470 of the Penal Code (forgery) was also alleged. Defendant denied the prior and pleaded not guilty. Trial by jury was waived, and the matter was submitted on the testimony in the first 33 pages of the transcript of the preliminary hearing, subject to the right of either side to put on additional testimony. After testimony by the complaining witness and the defendant, the court found the defendant guilty of burglary in the second degree. No disposition was made on the prior. A motion for a new trial and probation were denied. Defendant was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment and from the order denying his motion for a new trial.

Facts

The defendant arrived at the home of a friend, Pease, in Studio City about noon on February 4, 1966. He had met Pease about one and a half years previously, while both were incarcerated in a county penal institution. During the course of their friendship, Pease had come into good financial times. Pease testified that although he was unemployed, he and his wife enjoyed a $1,500 a month income from the wife’s stocks. Defendant apparently had not been so fortunate, and Pease had come to the aid of defendant from time to time by loaning him funds. Defendant remained with Pease throughout [649]the course of the afternoon and early evening. Part of the day was spent at Pease’s apartment, and part of it elsewhere. During the course of the day, the two did a bit of drinking. Defendant represented to Pease that a third party owed him money, and he used the telephone many times in apparent efforts to reach the debtor during the day. It was hoped that by collecting this debt defendant could in turn pay back part of what he owed Pease. Defendant was not successful in his phone calls, and Pease wrote the phone number on the cover of a magazine so that he could phone on behalf of the defendant.

Pease’s wife was also home during the day. She was engaged in doing some washing, and went in and out of the apartment from time to time. She had placed her house key in a dish on a coffee table in the living room for her ease of access thereto, near the location of the phone and magazine. The Peases had deposited in various piggy banks substantial amounts of change which they saved in the expressed hope that a vasectomy previously performed on Pease could be repaired so that the couple might have children. Two piggy banks were in the bedroom closet, and one in the living room. They contained at least $1,500 in coin. The evidence was that when they counted that amount, they stopped counting, though more had been deposited. About $2,000 in cash, and at least that much in jewelry were also in the bedroom. Defendant was one of the few people who knew about the piggy banks. He did not know about the $2,000 and jewelry. Nobody else was in the apartment during the period in question except a TV repairman, who was there from about 5:30 to 6:30. This workman was in the constant company of Pease.