People v. Acosta, Cr. 4731

Decision Date30 October 1952
Docket NumberCr. 4731
Citation249 P.2d 316,114 Cal.App.2d 1
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE v. ACOSTA.

Andrew P. Acosta, in pro. per. Edmund G. Brown, Atty. Gen., and Norman H Sokolow, Deputy Atty. Gen., for respondent.

DRAPEAU, Justice.

On the evening of May 12, 1952 two adjoining houses in South Pasadena were ransacked by a burglar, one at 175 Monterey Road, the other at 167 Monterey Road.

Mr. and Mrs. Henze, who lived at 175 Monterey Road, were visiting neighbors across the street. Mrs. Henze went home about nine o'clock to put her baby to bed. When she opened her front door a man who had been inside her house dashed past her and ran away.

Mrs. Henze made an outcry. Her husband heard her and ran out into the street. He saw the man running, chased him, but could not catch him. During his flight the man dropped a suit case, a clock, and some shirts taken from the Henze residence.

Then a police car came along. Mr. Henze told the officers in the car what had happened. They all searched the vicinity but could not find the man.

During the search a black Ford sedan was observed, parked directly east of the Henze driveway. On the back seat of the Ford was a radio, wrapped up in an overcoat.

A watch was set on the car by officers 'staked out' on the porch of a near-by house. About midnight their vigil was rewarded, for defendant approached the Ford, got into the front seat, and tried to start the motor. It was then that he was arrested. Admittedly the Ford belonged to him.

The other house next door to the Henzes belonged to Mr. and Mrs. Hamilton Quick. The Quicks were at the beach that evening. On receipt of police notification they came home and found that their house too had been entered, and that Mr. Quick's overcoat and radio were gone. That overcoat and radio were the ones found on the back seat of defendant's car.

The defendant was charged with two counts of burglary and two prior felony convictions. When arraigned, he admitted the prior convictions and pleaded not guilty to the two counts of burglary. He was tried by a jury, convicted, and sentenced to state's prison, and now prosecutes this appeal from the judgment.

Defendant elected to defend himself without counsel during his trial, and is without counsel on appeal. While it is the right of a defendant so to do, the results generally demonstrate the folly of such an election. In this case defendant has been in the county jail pending determination of his appeal, when he should have been earning time on his sentence, and when he was advised by the public defender on the day judgment was pronounced that his chances of success on appeal were infinitesimal.

In a one-page brief defendant argues that it was error: (a) for the trial judge to select the jury, (b) to deny defendant's motion to dismiss under Penal Code Section 995, and (c) to proceed with the trial without procuring defendant's car to exhibit to the jury, to refute the testimony of one of the witnesses for the People.

(a) The proceedings to impanel the jury were not made a part of the record on appeal. Defendant does not state how the trial court erred. This Court must therefore presume that official duty was regularly performed. Code of Civil Procedure, Section 1963, subd. 15. And no objection having been made in the trial court, the impanelment of a jury may not be questioned for the first time on appeal. 8 Cal.Jur., Criminal Law, Sec. 520, p. 506; People v. Johnson, 104 Cal. 418, 38 P. 91; People v. Flores, 15 Cal.App.2d 58, 58 P.2d 1311.

(b) Referring to defendant's contention relative to his motion under Penal Code Section 995: There is no transcript in the record on appeal of the preliminary examination or of the hearing of defendant's motion. Therefore the same rule must be applied.

(c) Referring to defendant's contention of error in the failure of the trial court to direct the production of his automobile: It had been repossessed by a finance company, and its whereabouts were uncertain. Defendant's request that it be...

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8 cases
  • People v. Collins
    • United States
    • California Court of Appeals Court of Appeals
    • September 20, 1963
    ...requests permission to conduct his own trial, he cannot complain of the court's failure to appoint counsel for him. People v. Acosta, 114 Cal.App.2d 1, 249 P.2d 316.' (People v. Collins, supra, 117 Cal.App.2d 175, 182-183, 255 P.2d 59, So many novel concepts of due process have evolved in t......
  • People v. Zavaleta
    • United States
    • California Court of Appeals Court of Appeals
    • July 5, 1960
    ...to the inclusion of the prior conviction along with the new offenses. Hence, it is not a subject for review. People v. Acosta, supra, 114 Cal.App.2d at page 1 249 P.2d 316' (People v. Collins, 117 Cal.App.2d 175, 183, 255 P.2d 59, Relative to the probation report, its use by the trial court......
  • People v. Massey
    • United States
    • California Court of Appeals Court of Appeals
    • October 11, 1961
    ...Finley window was made during the preliminary examination on July 26. Burglary may be proved by circumstantial evidence (People v. Acosta, 114 Cal.App.2d 1, 249 P.2d 316). Fingerprints are the strongest evidence of identity of a person and under proper circumstances alone sufficient to iden......
  • People v. Hinson
    • United States
    • California Court of Appeals Court of Appeals
    • February 11, 1969
    ...not necessary that a witness actually see the defendant breaking and entering the premises or in the vicinity thereof (People v. Acosta, 114 Cal.App.2d 1, 249 P.2d 316; People v. Flynn, 73 Cal. 511, 15 P. 'Although it is necessary for the People to show that a person charged with burglary e......
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