PEOPLE v. COLEMAN (1962)

Ralph J. Coleman, charged by information with burglary, with two prior convictions of felony, which he denied, was convicted in a nonjury trial and sentenced to state prison. He appeals in propria persona from the judgment and from an order denying his motion for new trial. He requested appointment of counsel on the appeal; we read the record, determined that the appeal is frivolous and denied the application. Defendant was so advised, was given time to file a brief and none has been filed.

There was evidence of the following facts. Defendant had his car in a body shop for repair. He paid his bill with a check for $11, which was payable to him, and drove away shortly before the shop was locked up for the night, at about 6 p. m. Shortly thereafter the foreman returned and found defendant in the office, hiding behind a filing cabinet. Defendant had removed his socks and covered his hands with them. The office was ransacked, but nothing was missing. There was a hole in the roof estimated to be about 18 by 20 inches. In the dust, leading from the hole to the stairway down into the shop, there was a single pair of footprints. There was evidence that the clothing defendant was wearing while at the shop, and which was recovered from his apartment by the police, was dusty and wrinkled. Defendant testified he was drunk in the shop, went to sleep in the toilet and awoke to find the shop locked up. He was looking for the $11 check, which he feared was not cashable. However, it was cashed upon presentation. Defendant testified he had a sock covering his left hand but none covering the right hand. He did not want to leave fingerprints, because of his criminal record.

Upon the stand, upon cross-examination, defendant admitted the prior convictions of felony. He jumped bail in the present case and was in jail in Denver for a crime he was charged with there when he was located and was returned to California.

In view of the evidence that defendant was not in the shop when it was locked up for the night, it was a reasonable inference that he entered the shop through the hole in the roof with intent to commit theft.

The case was tried without error and defendant was justly convicted. The court found the allegation of the former convictions to be true. Although defendant admitted them on the stand they were not otherwise proved. Therefore, the finding with respect to the former convictions should be stricken. (People v. Hamm, 145 Cal.App.2d 242, 302 P.2d 345; People v. Carrow, 207 Cal. 366, 278 P. 857.)

The finding that defendant had suffered the former convictions is stricken from the judgment; otherwise the judgment and the order denying motion for new trial are affirmed.

PER CURIAM.