Malcolm

By an information filed on October 10, 1973, the defendant Malcolm was accused of violating Penal Code section 459, burglary of a locked automobile. Upon a Penal Code section 995 defense motion, the trial court granted a dismissal of the charge on the basis the car was not locked at the time of the alleged offense. (See Pen. Code, § 1385.) The People appeal from the dismissal.

On June 30, 1973, at approximately 9:30 a.m., Arthur Armstrong drove with some friends to a spot on the Cache Creek in Yolo County, parked his car near the creek and locked all the doors of his Volkswagen with a key. All the car windows were rolled up and closed. However, the left front wing lock was broken preventing it from being locked. The group then left.

Because of a recent rash of car burglaries at this parking area, Yolo County Deputy Sheriff Beal and a fellow officer had this location staked out on June 30, and were positioned about 80 feet from the parking area.

At approximately 1:30 p.m., Beal observed a blue Scout automobile drive into the parking area and then depart. Twenty minutes later this same car returned to the scene. Three men, recognized by Beal as the defendant Malcolm, and…