People v. Gilbert

• Decision Date: 31 January 1961
• Docket Number: Cr. 7273
• Citation: 10 Cal.Rptr. 799,188 Cal.App.2d 723
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California Plaintiff and Respondent, v. Jessie James GILBERT, Defendant and Appellant.

Page 799

10 Cal.Rptr. 799

188 Cal.App.2d 723

PEOPLE of the State of California Plaintiff and Respondent, v. Jessie James GILBERT, Defendant and Appellant.

Cr. 7273.

District Court of Appeal, Second District, Division 3, California.

Jan. 31, 1961.

George E. Shibley, Long Beach, and Ernest L. Graves, Wilmington, for appellant.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

FORD, Justice.

This is an appeal from a judgment of conviction of burglary of the first degree and from an order denying a motion for a new trial. ¹ The sole contention of the appellant is that the trial judge (the appellant having waived his right to trial by jury) should have determined the offense to have been burglary of the second degree rather than of the first degree. ²

The evidence upon which the conviction rests will be summarized. On January 27, 1960, at about 6:20 p. m., Arthur Rene stopped at the home of Mary Elizabeth Tucker in the city of Long Beach so that he might take care of newspapers left there during Mrs. Tucker's absence. It was just getting dark. As he was walking up to the front door, he heard male voices emanating from the garage which was a part of the residential structure and was located 'at the front west part of the house.' ³ The door of the garage was closed. He went across the street to a neighbor's home and called the police. When the officers arrived, Mr. Rene and one of them entered the house by means of a key which Mr. Rene had. Mr. Rene turned on some lights. Someone jumped through a plate-glass window in the dining area. Hearing some movement in the hallway, Mr. Rene and the officer went toward a bedroom. At that moment, the sound of a shot came from the direction of the backyard. The appellant was found in the bedroom. He was holding a crowbar but, as the officer approached, he raised his arms and said, 'Don't shoot.' Handcuffs were placed on the appellant. Mrs. Tucker was called and she returned home in about 15 minutes. A number of articles of jewelry which belonged to her were found in the appellant's pockets.

Alan Evenson, the police officer who accompanied Mr. Rene into the house, received the call from the station to go to the house at about 6:33 p. m. He did not see the crowbar when he entered the bedroom. Another officer found it there as a later time and removed it.

Mrs. Tucker had departed from the house about 11:20 a. m.; when she left at that time, the doors were locked. It was stipulated that sunset was at 5:32 p. m. on that day and that the twilight thereafter was of a duration of 25 minutes.

The appellant testified in his own behalf. He said that at the time of the incident he was drunk. After drinking in a bar, he next recalled that he was trapped in a dark place and was trying to get out. This was 'quite some time' before he saw Mr. Rene and Officer Evenson. He later found out that the 'dark place' was Mrs. Tucker's garage. He did not know how long he had been in there. When he finally got out, 'it must have been quite a while afterwards that the police came in * * * [m]aybe 20, 25 minutes.'

It is, of course, clear that the Tucker residence was an inhabited dwelling house even though Mrs. Tucker was temporarily absent from the premises. People v. Loggins, 132 Cal.App.2d 736, 738, 282 P.2d 961; People v. Stewart, 113 Cal.App.2d 687, 691, 248 P.2d 768; People v. Hann, 104 Cal.App. 492, 493, 285 P. 1070; People v. Allard, 99 Cal.App. 591, 592, 279 P. 182. We turn first to the contention of the appellant that the evidence was insufficient to show that the entry was in the nighttime. In section 463 of the Penal Code, nighttime is defined as being the period of time between sunset and sunrise. The question thus presented on appeal is whether there was substantial evidence to support the conclusion of the trier of fact. People v. Daugherty, 40 Cal.2d 876, 885-886, 256 P.2d 911. We believe that there was not in this case. Mere speculation could not suffice. There was no reasonable basis for a conclusion that the entry occurred after 5:32 p. m. rather than prior thereto. Cf. People v. Wozniak, 167 Cal.App.2d 448, 334 P.2d 689; People v. Golembiewski, 25 Cal.App.2d 115, 118, 76 P.2d 717; People v. Richardson, 10 Cal.App.2d 379, 382, 51 P.2d 1114; People v. Clements, 6 Cal.App.2d 582, 584, 44 P.2d 657.

The remaining problem is whether the evidence was sufficient to show that the appellant was armed with a deadly weapon. While the crowbar was not a weapon in the strict sense of the word, it could be used as such. See People v. Raleigh, 128 Cal.App. 105, 108-109, 16 P.2d 752. The applicable law is succinctly stated in People v. Cloninger, 165 Cal.App.2d 86, at page 88, 331 P.2d 441, at page 443: 'A deadly weapon is one likely to produce death or great bodily injury. People v. Fuqua, 58 Cal. 245; People v. Cook, 15 Cal.2d 507, 102 P.2d 752. If it appears that the instrumentality is capable of being used in a deadly or dangerous manner and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion. People v. Morlock, 46 Cal.2d 141, 145-146, 292 P.2d 897.' Measured by such test, the evidence in this case fell short of sustaining a finding that the appellant was armed with a deadly weapon because there was no reasonable basis for an inference that he intended to use the crowbar...