People v. Arline

• Decision Date: 01 December 1970
• Docket Number: Cr. 856
• Citation: 91 Cal.Rptr. 520,13 Cal.App.3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert William ARLINE, Defendant and Appellant.

Page 520

91 Cal.Rptr. 520

13 Cal.App.3d 200

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert William ARLINE, Defendant and Appellant.

Cr. 856.

Court of Appeal, Fifth District, California.

Dec. 1, 1970.

Thomas A. Castelazo, Fresno, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Robert E. Venturi and Gary Allon Larson, Asst. Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GINSBURGE, ^* Associate Justice.

Appellant appeals from a judgment entered pursuant to a jury verdict convicting him of violation of Penal Code section 211a, armed robbery. The robbery occurred at approximately 2 a.m. on June 20, 1969, at a service station known as Larry's Douglas Station, located at Ventura and E Streets in Fresno. Two employees, one Jackson and one Gomez, were working on an automobile when they were approached by appellant and two others. Appellant threatened them with a gun, and under this threat they handed over the money in the cash box.

Appellant makes several specifications of error allegedly occurring during the course of the trial. These contentions will be discussed in order.

I.

The information charged appellant with robbery of Jackson; the evidence showed that Jackson's co-employee Gomez had the key to the cash box at the time. Appellant contends that for this reason Gomez was the only victim. Both Gomez and Jackson were employees of the station, and both were threatened by the robbers. All of the acts specified in the information occurred in Jackson's actual physical presence. The items taken were within his constructive possession as well as the constructive possession of Gomez. It is established that an attendant or employee may be the victim of a robbery even though he is not in charge or in immediate control of the items stolen at the moment. (People v. Downs, 114 Cal.App.2d 758, 251 P.2d 369; see also Vol. 1 Witkin, Calif. Crimes, § 435, pp. 403--404, and cases cited therein.) Clearly, Jackson was one who was a victim of the robbery, and the information was sufficient in so charging.

II.

Appellant next contends that the necessary jurisdictional facts were not shown at the trial in that there was no specific testimony that the robbery occurred within Fresno County. There was, however, circumstantial evidence consisting of the names of the streets where the service station was located, the proximity of the station to the home of a witness who lived in Fresno, and the fact that a Fresno City Police department detective went to the service station to investigate the case. It is the rule that venue need not be shown by direct evidence; circumstances may establish venue. (See People v. Erb, 235 Cal.App.2d 650, 653, 45 Cal.Rptr. 503, and 259 Cal.App.2d 159, 66 Cal.Rptr. 274; People v. Kutz, 187 Cal.App.2d 431, 434, 9 Cal.Rptr. 626.) Furthermore, venue need not be proved beyond a reasonable doubt but only by a preponderance of the evidence (People v. Erb, Supra). There was sufficient evidence here to warrant a finding that the acts complained of occurred within Fresno County.

III

Appellant's next contention is that the trial court erred in excluding relevant evidence which he argues tended to show that some person other than appellant committed the offense in question. An offer of proof was made by appellant outside the presence of the jury. He proposed to show that approximately two months after the robbery in question one Andrew Gordon robbed a service station; that the descriptions of Gordon and appellant were similar; that the modus operandi employed in the instant offense was similar to that allegedly used by Gordon in the latter offense; and that Gordon was in the Fresno area at the time of the instant offense and therefore could have committed it.

Gordon then was called to the stand and examined, likewise, outside the presence of the jury. He denied some facts which might have tended to involve him in the instant offense and then, on the advice of his counsel, refused to answer substantially all material questions, claiming his privilege against self-incrimination. The trial judge observed Gordon's physical characteristics and noted outstanding differences in height and general appearance between him and the appellant; he concluded that '* * * there isn't the slightest resemblance * * *' between them. He further noted differences in the modus operandi of the two offenses; in the instant offense a gun was used, and in the offense with which Gordon was charged a knife was used; in the offense here charged three persons acted in concert, while Gordon allegedly had acted alone in the offense charged against him. Upon the basis that the proffered evidence was of no probative value and that there was insufficient evidence to connect Gordon with this offense, the trial judge stated that he would exclude the testimony.

Counsel for appellant then again requested the opportunity to call the witness to conduct the same fruitless examination before the jury. The court had previously stated that if appellant would produce evidence '* * * to show something reasonable and probable to connect * * *' Gordon with the instant offense, he would allow it to go before the jury, and counsel had advised the court that this was all of the evidence he had on the subject. The court then excluded Gordon's testimony and refused to permit him to be called before the jury upon the grounds that it would be prejudicial to the prosecution.

We hold that the trial court properly exercised its discretion in sustaining the objection to the proffered evidence and in refusing to allow the witness to be called and questioned before the jury. We recognize that proof that another person committed the offense in question would exculpate the appellant. Evidence tending to prove such a claimed fact is, however, subject to certain limitations. In People v. Buono, 191 Cal.App.2d 203, at page 228, 12 Cal.Rptr. 604, at page 618, the court said:

'A defendant may, of course, establish his innocence by proving directly or circumstantially that some other person or persons (committed the offense). But the mere possibility that some third...