People v. Chung

LILLIE, J. Defendant was charged with burglary (§ 459, Pen. Code) and two prior felony convictions (sale of heroin and robbery) for which he served terms of imprisonment. A jury returned a verdict of guilty of second degree burglary and found the alleged priors to be true. Defendant appeals from the judgment.

Around midnight on March 9, 1967, a clerk locked the premises of a liquor store and set a silent burglary alarm; he [9]left nickels, pennies and a wrist watch in the cash register. Around 2:50 a.m. pursuant to a radio call from a silent burglary alarm, Officers Petroski and Whitaker proceeded to the liquor store. Officer Petroski walked up to the side of the plate glass window and looked inside; he saw defendant standing behind the cash register looking straight down at the cash drawer. The officers drew their revolvers and tapped on the glass window; defendant looked up, turned slowly and walked hurriedly toward the rear of the store, then ran from the building; the officers took chase. Officer Petroski ordered defendant to halt but he continued to run and the officer fired one shot missing him. Defendant dove into a junked van. Officer Whitaker opened the rear door and saw defendant crouched in the back of the truck; he ordered defendant out but he did not move; Officer Whitaker grabbed him and as he started to pull him out, defendant lunged at him causing him to stumble backwards; then he hit defendant with his fist subduing him and placed him under arrest. Officer Petroski searched defendant and found in one of his pockets the coins and watch wrapped with a piece of paper; Mr. Moser, an owner of the liquor store, identified the watch as being the one he had left in the cash register. Upon entering the store Moser observed the back door had been forced and noticed the watch and nickels were missing from the cash register.

In his defense defendant testified that he had been released from a hospital around 9 p.m. and had gotten on a bus; the bus driver let him off at the wrong place; around 9 :30 he started walking and became dizzy as he had heart trouble and asthma and about 11 p.m. saw a panel truck; he did not want to pass out on the sidewalk so he entered the truck and fell asleep. Around 3 a.m. he was awakened by an officer who said, “You are the man in the store”; he said, “I am not no burglar”; the officer punched him and broke his jaw; he did not try to hit the officer and did not lunge toward him; he did not know anything about the liquor store, did not enter it and did not have a watch or any money on his person when arrested.