People v. Martinez
| Decision Date | 16 August 1962 |
| Docket Number | Cr. 8110 |
| Citation | 23 Cal.Rptr. 897,206 Cal.App.2d 809 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ramon M. MARTINEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Ramon M. Martinez, appellant, in pro. per.
Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for respondent.
In a trial by jury the appellant Martinez was found guilty of the crime of burglary of the second degree. He was represented by a deputy public defender. His appeal is from the judgment.
The appellant applied to this court on several occasions for the appointment of counsel to represent him on this appeal. After an independent investigation of the record, this court determined that such appointment of counsel would be neither advantageous to the appellant nor helpful to this court in the determination of the appeal. The several applications were denied. The appellant has filed an opening brief and a reply brief in which he sets forth his contentions that the evidence was insufficient to sustain his conviction, that a juror was prejudiced against him, and that he was not properly represented by the public defender. In his reply brief he also asserts that his trial occurred the day after judgment was pronounced, but the record shows that his trial was commenced and completed on October 2, 1961, and that the date of judgment was November 1, 1961. 1 That contention is apparently based upon what is obviously an error in the reporter's transcript in that the date of trial is set forth as 'Monday, November 2, 1961.' 2
A summary of the evidence with be given. Donald R. Withers testified that he was a co-owner of the business known as Canoga Park Tire Sales and Service Company which was located at 7139 Canoga Avenue in Canoga Park. On Sunday morning, April 16, 1961, he was in the building and locked the doors when he left. About 8 or 8:30 o'clock that evening he received a call and returned to the premises. Police officers were there. The glass front door, which had been broken, was 'wide open.' He testified: 'There was papers all over the office there and the cigarette machine had been broken into and the coke machine and there was a Kiwanis gum machine on top of the coke machine and it was laying on the floor, about 20 feet out of its regular location.' When he closed the building on Saturday, there was money in the cash drawer in the form of 'nickels, dimes, and pennies' in a total amount of about four or five dollars, but the money way not there when he returned on Sunday evening. He did not give the appellant or his codefendant permission to enter the building.
James P. Murtha, a police officer for the city of Los Angeles, testified that at about 7:40 o'clock Sunday evening, April 16, 1961, he went to the premises of Canoga Park Tire Sales & Service Company with Officer Loveless upon receiving a radio call. After he 'motioned' Officer Loveless to the rear of the building, Officer Murtha went to the front. There was a 150 or 200 watt light inside the building which was on. The door was ajar and Officer Murtha entered. He was two persons crouched down in front of a vending machine in the building. When he yelled at them, they looked up and one spoke to the other in Spanish. They then ran towards a door, opened it and ran out. The officer went out the front door and around the side of the building. He observed the two figures running along the side of the building. He yelled, 'Halt,' and fired two shots. Officer Loveless stopped one of the persons. The witness then grabbed that man and told Loveless to go after the other person. Loveless did so and returned about three to five minutes later with the appellant. Officer Murtha further testified that he was able to see the faces of the two persons while he was inside the building and that one of them was the appellant. When the witness searched the appellant, he found nickels and dimes of a total amount in excess of five dollars.
Officer James W. Loveless testified that after he halted one of the men, Cornejo, he pursued the other man on foot for one and a half to two blocks and finally caught him. When he started his pursuit, he was 'probably 20, 30, maybe 45 feet' behind the fleeing man. At one time they were 'probably 60 to 80 feet' apart. The officer further testified in part as follows: That man was the appellant.
Henry B. Acosta, a police officer for the city of Los Angeles, testified that on April 18, 1961, he had a conversation with the appellant while en route from the jail to court. The appellant's statements were made freely and voluntarily. He said that on the night of his arrest while he and Cornejo were walking down Canoga Avenue they saw the open door, walked in, and were caught. The officer also testified that the appellant said that he had nothing to do with the breaking and entering.
The appellant testified in his own behalf. Just before his arrest he had been at the Adobe Cafe. He was walking towards another bar and, when he heard something, he turned around. The next thing he knew was that he was 'on the floor' and one of the officers was kicking him in the ribs. He had money in the form of change in his pocket. He had collected the money from time to time in a bag at home. That evening when he went out he put the change in his pocket because he had spent his other money the night before. He denied that he made the statement as to which Officer Acosta had testified. On Sunday, April 16, he did not enter the premises of the Canoga Park Tire Shop. Those premises were two blocks away from his home. He had been convicted of a felony, forgery, in 1958.
The appellant's brother was called as a witness in his behalf. He testified that coins were kept in a bag in the appellant's bedroom at home.
The evidence was sufficient to establish that a burglary had occurred. (People v. Brasher, 159 Cal.App.2d 206, 323 P.2d 483.) With respect to the issue of identity, the statement found in People v. Murphy, 173 Cal.App.2d 367, at page 375, 343 P.2d 273, at page 278, is apropos. It was there said: '* * * ...
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