People v. Barnett

• Decision Date: 31 March 1958
• Docket Number: Cr. 6054
• Citation: 323 P.2d 96,159 Cal.App.2d 22
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ray Veck BARNETT and Gordon F. Lymn, Defendants, Ray Veck Barnett, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 96

323 P.2d 96

159 Cal.App.2d 22

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ray Veck BARNETT and Gordon F. Lymn, Defendants Ray Veck Barnett, Defendant and Appellant.

Cr. 6054.

District Court of Appeal, Second District, Division 1, California.

March 31, 1958.

Harrison M. Dunham, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, the above named defendants were charged with the crime of Robbery in that they forcibly took from one Louis Bosola $75 on or about April 22, 1957. It was further alleged that at the time of the commission of the offense, the defendants were armed with a deadly weapon, to wit, a .22 caliber automatic pistol. Defendants pleaded not guilty, were tried before a jury and found guilty of robbery of the first degree. While the verdict as to defendant Barnett recites that the jury found he was armed at the time of his arrest, the court's minutes record that he was found to be armed at the time of the offense. However, none of defendant Barnett's substantial rights were prejudicially affected by such variance (People v. Beltran, 94 Cal.App.2d 197, 208, 210 P.2d 238). Defendant Barnett was sentenced to state prison. From the judgment of conviction, he prosecutes this appeal.

The following will serve as a fair summary of the factual background surrounding this prosecution.

Louis F. Bosola testified that he was the owner of a liquor store located at 1933 Ventura Boulevard, Tarzana, in Los Angeles County. That at about 12:50 o'clock on the morning of April 22, 1957 (the day following Easter Sunday) the defendant Barnett came into the store and ordered a package of Salem cigarettes. He gave Mr. Bosola a dollar bill and as Mr. Bosola gave him his change, the defendant pointed a gun at him and told him to give him all the money he had. Mr. Bosola asked the defendant if he wanted the silver and the latter said he only wanted the bills. After Mr. Bosola gave him the money, which amounted to $70 or $80, the defendant Barnett ordered him into the back room and made him lie on the floor. The defendant's gun was 'on' Mr. Bosola during the entire proceedings. Defendant Barnett told Mr. Bosola, 'Get down on the floor and stay there and don't try anything or I will be back.'

Mr. Bosola gave the defendant the money because he was scared and because the appellant had a gun pointed at him.

At a later date Louis Bosola recognized the defendant Barnett in a police line-up. At the time of trial Mr. Bosola was positive that the appellant was the man who robbed him. Among other things, Mr. Bosola recognized the defendant's harelip, his dark brown hair, his height of 5 feet 9 inches and his weight of about 150 pounds. The witness stated that defendant's mustache had been a little thinner and a little darker than it was at the time of trial. On cross-examination the witness testified that the mustache of the intruder, 'was a hairline type of moustache, straight across'. That 'it wasn't this walrus type that Mr. Barnett is wearing at the moment.' The witness identified an automatic pistol, .22 caliber introduced in evidence at the trial as one that resembled or 'looks like' the one defendant Barnett pointed at the witness on the occasion here in question.

About 9:30 o'clock on the evening of May 2, 1957, Frank J. Furgiuele, a police officer of the City of Beverly Hills, was operating a police patrol car when he observed a 1956 green Cadillac automobile pull up behind a motorcycle that he had observed had been parked at this location for several hours. That the motorcycle had a New Jersey license plate, and since it was parked in a residential district he had been keeping it under observation. That he stopped his patrol car directly across the street from the motorcycle and the Cadillac and observed the driver of the Cadillac, defendant Lymn, get out of the car and go to the motorcycle. That he approached defendant Lymn and was told that the registration to the motorcycle was in the Cadillac, and the witness walked back with both defendants to the car. The witness put his flashlight in the window of the car and noticed a gun on the rear seat. He immediately placed the two defendants under arrest. The witness stated that defendant Barnett volunteered that they had another gun under the front seat, and after additional police units arrived, they searched the Cadillac and found a .32 caliber gun in the car, together with a 'jumper wire', a bandana, a wig, and some loose money in the glove compartment.

He testified that Barnett and Lymn were taken to the Beverly Hills Police Station, and while there, officers found that defendant Lymn was wearing a very narrow false 'Hitler-type' mustache, straight across the upper lip. On cross-examination, the witness testified that the so-called 'jumper wire' had only a clip on one end. When the contrivance was introduced into evidence it proved to be a battery-starting cable with clips on both ends.

On May 3rd, at about 10:30 or 11:00 a. m., Officer Cork of the Beverly Hills Police Department and Sergeant Valentine of the Beverly Hills Police had a conversation with the defendant Barnett. The latter's statements were free and voluntary. Sergeant Valentine told the defendant 'I think you fellows have pulled a lot of jobs together, and it is our job to find out how many they are and where they are, and we want you to tell us about it.'

Defendant Barnett said, 'That is the funny part about it. There isn't a lot of jobs. There is only one.' He further said that 'The best he could remember, it was some time about the last week in April.' He said that he and defendant Lymn were driving around in the valley near Ventura and Sepulveda at which time they spotted a liquor store. He said Lymn was driving and that they stopped in front or near the liquor store, that he took the gun, went in the liquor store, held the gun on the proprietor, and took $50 or $60. He then split the money with Lymn.

That same afternoon, defendant Barnett was interviewed by agents of the Federal Bureau of Investigation. His statements were free and voluntary. He said that the only thing he was 'mixed up in' was the robbery in the valley.

On May 4th, at about 2:00 to 3:00 o'clock in the afternoon, Officer Webb of the Los Angeles Police Department, attached to the Detective Bureau, was present at a conversation with defendant Barnett, whose statements were free and voluntary.

The latter stated that approximately two weeks before on a Monday at around 1:00 o'clock in the morning he and defendant Lymn had driven west on Ventura Boulevard a little ways past Balboa; they parked the car in front of a liquor store on the north side of the street; Lymn stayed in the car while Barnett went inside the store; upon entering the store, he asked the man behind the counter for a package of Salem cigarettes; the man gave him the cigarettes and he gave the man a dollar; when the man gave him the change for the purchase, the defendant Barnett pulled the gun from his waistband and told the man he wanted all his money; when he started to give him the loose change, the defendant told him he only wanted the bills; after he obtained the bills he told the man to go to the back of the liquor store and he made him lie on the floor; he then walked out of the store and drove east on Ventura Boulevard.

On cross-examination the witness admitted that no stenographic record or tape recording was made of the conversation. Sergeant Murphy of the Detective Division, Los Angeles Police Department, was also present at the conversation just narrated and also testified that defendant Barnett told him that he had committed only one robbery. 'The robbery that I told the Beverly Hills officers about.'

The defendant Barnett also said he believed the robbery occurred on the 27th or 28th of April. Sergeant Murphy asked him if it would be the 22nd or 23rd and he stated it could have been. He told Sergeant Murphy that he and Lymn were riding around looking for a liquor store to hold up or some place to hold up and that they spotted a liquor store on Ventura Boulevard. He stated that when they pulled up in front of the store, defendant Lymn was driving his Cadillac and that he took a gun which he described as a .22 automatic, went into the liquor store, asked the clerk for a package of Salem cigarettes, offered to pay for the cigarettes with a dollar bill, and when the clerk rang up the purchase on the register and started handing him the change he took the gun from his waistband, pointed it at the clerk and asked him to give him all his money; the clerk asked if he wanted change and the defendant Barnett stated, 'No, just the bills'; after the clerk had handed him the bills, he told him to turn around and start towards the back and he ordered him to lie down on the floor and remain there for a few moments. He said that he and Lymn counted the money and found that it was $69 or $70. None of defendant Barnett's statements were reduced to writing. Testimony as to similar incriminatory statements made by defendant Barnett was given by Officer Leonard M. Webb and Sergeant J. L. Austin of the Los Angeles Police Department.

Mr. and Mrs. Edward Bowers, called as witnesses for defendant Barnett, testified that on Easter Sunday, April 21, 1957, the latter came to their home, assisted Mr. Bowers in cleaning out the garage, had dinner with them, and about 9:30 p.m. complained of dizziness. Defendant Barnett was put to bed in their bedroom, and Mrs. Bowers changed a cold cloth applied to Barnett's head, four or five times during the evening, until...