Summerfield

This is an appeal following a jury trial from a judgment of conviction of burglary which the jury found to be of the first degree. The grounds of appeal are: (1) prejudicial error was committed in admitting in evidence two pieces of paraffin and testimony respecting a screwdriver allegedly products of an illegal search and seizure ; (2) the evidence in support of the conviction was insubstantial ; (3) the court refused appellant’s prepared jury instruction that if a burglary had been committed it could only be of the second degree; and (4) the court, in giving an instruction based on CALJIC 235, improperly commented on appellant’s exercise of his constitutional privilege against *628 compulsory self-incriminatiou. Only the last mentioned ground has merit.

At about 10:15 p.m. on April 27, 1966, Mrs. Marguerite Sadler returned to her second-floor apartment in the Hollywood area of Los Angeles. She was surprised to find the door of her apartment open and some lights on inside. 1 She entered, inquired nervously as to who was there and what he wanted and then stepped a little further into the living room to see down the inner hall. She saw appellant, a stranger to her, standing in the…

I dissent. In my opinion the criticized instruction to the effect that possession of stolen property soon after it was taken, in the absence of a showing by a defendant that such possession was honestly acquired, is a circumstance tending to show guilt, does not compel a defendant to testify against himself as proscribed by article I, section 13 of the California Constitution, and it does not violate Amendment Five to the United States Constitution. It is my opinion that the question was properly determined adversely to the appellant’s contention herein in People v. De Leon, 236 Cal.App.2d 530, 533-534 [ 46 Cal.Rptr. 241 ].

I would afSrm the judgment.

Respondent’s petition for a hearing by the Supreme Court was denied August 8, 1968. Peters, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.

Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council,

COBEY, Acting P. J.

This is an appeal following a jury trial from a judgment of conviction of burglary which the jury found to be of the first degree. The grounds of appeal are: (1) prejudicial error was committed in admitting in evidence two pieces of paraffin and testimony respecting a screwdriver allegedly products of an illegal search and seizure; (2) the evidence in support of the conviction was insubstantial; (3) the court refused appellant's prepared jury instruction that if a burglary had been committed it could only be of the second degree; and (4) the court, in giving an instruction based on CALJIC 235, improperly commented on appellant's exercise of his constitutional privilege against compulsory self-incrimination. Only the last mentioned ground has merit.

At about 10:15 p.m. on April 27, 1966, Mrs. Marguerite Sadler returned to her second-floor apartment in the Hollywood area of Los Angeles. She was surprised to find the door of her apartment open and some lights on inside. [fn. 1] She entered, inquired nervously as to who was there and what he wanted and then stepped a little further into the living room to see down the inner hall. She saw appellant, a stranger to…