People v. Alvarado

• Decision Date: 23 October 1967
• Docket Number: Cr. 10856
• Citation: 255 Cal.App.2d 285,62 Cal.Rptr. 891
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Peter Richard ALVERADO, Defendant and Appellant.

Page 891

62 Cal.Rptr. 891

255 Cal.App.2d 285

The PEOPLE, Plaintiff and Respondent, v. Peter Richard ALVERADO, Defendant and Appellant.

Cr. 10856.

Court of Appeal, Second District, Division 4, California.

Oct. 23, 1967.

George V. Denny III, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., David W. Halpin, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

This is an appeal by Peter Alvarado from the judgment entered upon his conviction by a jury of two counts of robbery (Pen.Code § 211). He was tried together with one Robert Frazer who was also convicted of two counts of robbery but who does not appeal.

Both defendants were charged in a single information which alleged three counts: Count one charged Frazer alone, alleging that, on August 18, 1964, he robbed P. Gregorio of $493. Count two charged Alvarado alone. It alleged that he robbed William Minyard, Jr., of $141.23 on August 24, 1964. In count three both defendants were jointly charged with robbing David Burks of $90 on September 9, 1964.

Before the jury was impaneled, Alvarado moved to have count one (which as indicated charged only his codefendant) severed and tried separately. In support of the motion, Alvarado's counsel argued that, because of the similarity of the crimes, the jury might be prejudiced against his client if it found Frazer was guilty of count one. The court denied the motion. Alvarado assigns this as error. The evidence subsequently introduced at the trial showed, as defense counsel had pointed out, a pattern of robberies each strikingly similar.

With respect to count one, on August 18, 1964, at about 8:45 p.m., Frazer entered a grocery store located at 5658 Clara Street, Bell Gardens. He picked up a few items and approached the checkstand. He handed Mr. Gregorio, the proprietor, a one dollar bill in payment for the merchandise. When Gregorio turned back around he saw that Frazer had pulled out a short chrome-plated gun. Frazer ordered him to hand over all the bills. Gregorio complied and Frazer stuffed the money in his pockets. He ordered Gergorio to walk to the back of the store and then left.

As to count two, the evidence showed that, on August 24, 1964, William Minyard was working at a checkstand in Von's Market located at Paramount and Florence in Downey (about two miles from Gregorio's grocery store). At about 8:15 p.m. that evening, Alvarado approached his checkstand carrying a carton of cigarettes. After he 'rang them up' and stated the price, Alvarado pulled out a white-handled gun, told Minyard it was 'a holdup' and ordered him to put the money in a paper sack which he produced. Minyard did as directed and Alvarado then ordered him to walk to the back of the store. He did not see Alvarado leave. Minyard indicated that there was 'somebody' with Alvarado but he did not get a good look at the person and was not able to make any identification.

The victim of the third robbery (alleged against both defendants in count three), was David Burks. On the evening of September 9, 1964, he was employed at the Jolly Market on Florence and Emil, in Bell Gardens. At about 8:20 p.m., Frazer walked up to the checkstand carrying a quart of milk and some lunch meat. He handed Burks a one dollar bill in payment and Burks gave him the change. It was then that Frazer displayed a .32 caliber nickel-plated revolver. He told Burks to put the rest of the money from the cash register in the bag in which the milk and lunch meat had been placed. Burks followed Frazer's orders and the latter then left the store.

Paul Silva was standing outside the market. Through the front window he saw the robbery take place. When Burks put the money in the paper bag, Frazer left the store and then ran to an automobile parked across the street. Alvarado was the driver of this car. Brady Adams also saw Frazer come out of the store and get into the car driven by Alvarado. Before Frazer came out, the engine of the car was running.

A .32 caliber chrome-plated revolver with a mother-of-pearl handle was introduced in evidence as People's Exhibit 1. Each of the three robbery victims indicated that the weapon was similar to the one used to rob them. The revolver, together with .32 caliber ammunition, were found on September 10, 1964, in a search of the residence of Frazer.

In a statement to the police after his arrest, and after being advised of his constitutional rights, Frazer admitted having committed the robberies charged against him in counts one and three. He further stated that he had used the revolver found in his residence. His statement in no way implicated Alvarado.

Alvarado testified, denying any involvement in the robberies charged against him. His story was that he was in Ensenada on August 24, 1964, the date of the Von's Market robbery. Frazer was with him at the time. With respect to the Jolly Market robbery, he admitted waiting in the car while Frazer went into the market. He did not know that Frazer was going to commit a robbery. Frazer told him later that he had committed the crime.

Frazer testified in behalf of Alvarado, supporting the latter's alibi for the Von's Market robbery. He further testified that Alvarado knew nothing about the Jolly Market robbery which he alone had committed.

A defendant is not, as a matter of right, entitled to a separate trial. (People v. Santo, 43 Cal.2d 319, 332, 273 P.2d 249; Pen.Code § 1098.) Where there is an underlying set of common facts or common evidence, the consolidation of separate charges against multiple defendants charged jointly with at least one offense, is proper. (People v. Chapman, 52 Cal.2d 95, 97, 338 P.2d 428; People v. Andrews, 165 Cal.App.2d 626, 635--636, 332 P.2d 408.) The oft-used expression in such a case is that the charges have 'a common element of substantial importance in the commission.' (People v. Spates, 53 Cal.2d 33, 36, 346 P.2d 5, 7; People v. Chambers, 231 Cal.App.2d 23, 32, 41 Cal.Rptr. 551.)

A motion for severance must be decided upon the showing made at the time the motion is made. (People v. Santo, supra, 43 Cal.2d 319, 332, 273 P.2d 249.) The defendant has the burden of demonstrating, then and there, that the charges were not properly consolidated and therefore should be severed. (People v. Andrews, supra, 165 Cal.App.2d 626, 635, 332 P.2d 408.) When Alvarado made his motion for severance, he made absolutely no showing that the crimes were unrelated or unconnected, as was the case in the People v. Biehler, 198 Cal.App.2d 290, 17 Cal.Rptr. 862, upon which he relied. Quite to the contrary, as indicated above, defendant pointed out that the offenses were indeed similar. (That this observation was correct, was later borne out by the evidence.)

Furthermore, even if we were in a position to conclude that the trial court had erroneously denied the motion for severance, we could not reverse Alvarado's conviction on such ground. To do so, we would have to be able to say a reasonable probability existed that he would have obtained a more favorable result had the severance been granted. (People v. Massie, 66 A.C. 937, 960--961, 59 Cal.Rptr. 733, 428 P.2d...