People v. Washington

FOURT, J. This is an appeal from a judgment of conviction of burglary.

In an amended information filed in Los Angeles on March 29, 1967, defendant with Alvin Nairn, Ezel Wilson, Jr., and George Wilson were charged in count I with burglarizing the building occupied by National Outfitting Company and Leo Birnstein on April 13, 1966; in count II George Wilson was charged with receiving stolen property. It was further charged that defendant Washington previously had been convicted of forgery in Los Angeles County in March 1965. Washington pleaded not guilty and denied the charge of the prior conviction. A jury trial was waived as to the issue of the [815]charged prior conviction. In a jury trial on the merits Washington was found guilty as charged in the information. No finding was made as to the prior conviction. The burglary was found to be in the second degree. A motion for a new trial was denied as was probation. Washington was sentenced to the state prison. A timely notice of appeal from the judgment was filed.

A résumé of some of the facts is as follows: Paul Herne the owner and Leo Birnstein the manager of National Outfitting Company of 5225 South Broadway, Los Angeles, left the store at about 6 :05 p.m. on April 12, 1966. The merchandise was present and ready for sale at that time. Birnstein unsuccessfully attempted to set a burglar alarm at the time of leaving. No one had permission to enter the store upon or after their leaving.

At a time before the store was closed on April 12, 1966, Washington with three others had entered the store. Jones, one of the group at that time, made out an application for credit for the purchase of a television set.

Walter Bailey, a resident of 5217% South Broadway, was awakened by a noise outside his house at about 5:30 a.m. April 13, 1966. Bailey looked out of his bedroom window at the National Outfitting Company’s loading dock. Bailey first saw a ear and after watching it for a few minutes decided to call and did call the police. While he was talking to the police the ear drove away. In about five minutes a stake truck drove up and parked with the front thereof under his window and the rear thereof facing the loading dock. Bailey called the police again. Bailey saw Washington and others around the truck. Bailey, after watching the truck for a few minutes, proceeded to the vicinity of the truck in order to secure the license plate number. Bailey saw Washington bringing television sets out from the back of the store and taking them to the truck where they were being loaded into the truck.