People v. Barrett

• Decision Date: 04 November 1968
• Docket Number: Cr. 12879
• Citation: 72 Cal.Rptr. 681,267 Cal.App.2d 135
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Ronald BARRETT and Foster Victor Falcon, Defendants and Appellants.

Page 681

72 Cal.Rptr. 681

267 Cal.App.2d 135

The PEOPLE, Plaintiff and Respondent, v. Robert Ronald BARRETT and Foster Victor Falcon, Defendants and Appellants.

Cr. 12879.

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

Nov. 4, 1968.

Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Robert Ronald Barrett.

Morgan R. Rodney, Los Angeles, under appointment by the Court of Appeal, and Foster Victor Falcon in pro. per., for defendant and appellant Foster Victor Falcon.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendants were charged with two counts of armed robbery. It was alleged that Falcon had suffered a prior felony conviction of the crime of robbery and conspiracy with intent to commit robbery, and it was alleged that Barrett had suffered a prior felony conviction of the crime of burglary on two occasions and the crime of possession of narcotics.

A public defender was appointed. On Barrett's motion, Attorney A. Bryon was substituted as to him in place of the public defender. Each entered a plea of 'not guilty' and denied the prior convictions. Motion of counsel to be relieved as to Barrett was denied without prejudice. Defendant Falcon's motion for separate trials was denied.

A jury was impaneled and sworn to try the cause. On Barrett's motion, all witnesses, with the exception of the investigating officer, were excluded from the courtroom.

The jury found both defendants guilty of robbery as charged in counts I and II, the degree was set at first degree, and the defendants were found to be armed at the time of both offenses. The jury found the prior conviction alleged against Falcon to be true, and the first, third and fourth prior convictions against Barrett to be true.

Defendants' motions for new trials were denied, probation was denied, and defendants were ordered punished for the term prescribed by law, the sentences on counts I and II to run consecutively.

On October 30, 1965, at about 5:30 p.m., Mr. Gordon, a pharmacist at the Union Service Plan Pharmacy, was typing a label when Falcon came in wearing a stocking over his face and waving a gun. He told Mr. Gordon, 'This is a holdup.' and he demanded narcotics, specifically naming Dilaudid, morphine and cocaine. Mr. Ron Terry Kemp, another employee of the pharmacy, saw a man, Falcon, with a black stocking mask over his face. Falcon, seeing Kemp trying to leave said, 'Get back over here or you're dead.' The stocking over Falcon's face distorted his features to some extent.

After getting the keys Falcon told Kemp to lie down on the floor; Falcon pushed him and Kemp fell on the floor.

Mr. Gordon opened the narcotics cabinet and, upon orders from the man with the stocking over his face, Mr. Gordon put 19 or 20 bottles of narcotics in a bag. Falcon took the bag, ordered Mr. Gordon to lie down and after a while he left.

Miss Matijevich, an employee, was in the back room and a man with a gunmetal colored stocking on his face pushed a mahogany-handled knife with a six inch blade against her ribs and said, 'I'll show you what I'm doing at the register.' Miss Matijevich, thinking it was a Halloween prank, put her hand on his shoulder. The man jerked her arm out of place and cut her arm with the knife and asked for the money. He cut her arm again and took all the money from the register. He already had the day's receipts. He led her and a customer to the back room and ordered them to get down. There was another man in back with a blackish-blue gun who also had a gunmetal colored stocking over his face. The smaller of the two men was wearing a light colored sweater with pink and green blots on it. Both men were wearing white knit gloves.

At about 9:35 a.m. on December 6, 1965, Miss Matijevich and Miss Lee were working in the pharmacy. A man came around and Miss Matijevich said, 'Oh, not again,' and the man said, 'Yes, this is a holdup.' The man was wearing the same kind of a black mask as on the prior holdup.

Miss Lee opened the register, the man was waving a gun, the man took the money, and after finding out there was no more money, Miss Lee was ordered to lie down on the floor. Miss Matijevich was led to the narcotics locker and the men said they wanted morphine and Dilaudid. Miss Lee told them they had no more. The two men appeared to be the same men as those who were in the pharmacy on October 30, and the gun looked the same. The telephone rang and the taller man took the phone off the hook, replaced it, and they left. Miss Lee got a glimpse of the second man. The first wore a dark stocking over his face and the second wore a tan stocking.

Mrs. Leyba lived in an apartment at 13921 South Normandie Avenue in Gardena on October 30, 1965. On December 6, 1965, she lived with her husband, defendant Falcon (her cousin), and defendant Barrett. In the bedroom there was a bureau which had six drawers, three side by side. Mrs. Leyba and her husband used four of the drawers. Falcon was assigned to the second or third drawer on the right and defendant Barrett had the third drawer on the left. The apartment was located across the street from the pharmacy in question. On Halloween Mrs. Leyba, while shopping, heard of a robbery at the pharmacy. She went to the pharmacy, went home, went to the kitchen to prepare a meal, and could not find her black steak knife. It had a 6 blade and was about 11 long. She had last seen the knife that morning. A half an hour later the defendants returned and she asked them if they had seen the knife; they said they had not. They were carrying a brown bag rolled up in a sweater.

Police Officer Burton and Detectives Purcell and Peck went to the Leyba residence at about 5:40 p.m. on January 6, 1966. Falcon had already moved out. Mrs. Leyba and her husband were at home and Barrett was not at home. The officers were admitted to the apartment, and they asked the Leybas for permission to search. Permission was granted and Mrs. Leyba was present during the search of the bedroom. Mrs. Leyba told the officers that Falcon had been living there, that they had a quarrel and he had moved out. She did not say that either of the two men had property at her residence. Mrs. Leyba observed the officers going through the dresser and she thought she observed the officers remove a package of letters from the dresser drawer which had been assigned to Barrett. In this drawer, in a paper bag beneath some articles of clothing, were found a gun, six bottles, five bullets, and a hypodermic kit. The search also uncovered white gloves, and parts of two stockings. Mrs. Leyba was not sure whether a sweater which belonged to her husband, and which Falcon and Barrett had occasionally borrowed, was hanging in the closet or was removed from the drawer assigned to Barrett.

Officer Burton recalled that the gun, five bullets, and hypodermic kit were found in a paper bag beneath some articles of clothing in the center or third drawer down of a six-drawer dresser, on the left-hand side. White gloves were in the top drawer and a black stocking was on the shelf in the hall.

Officer Burton had a conversation with Barrett on January 10, 1966, at the sheriff's department. He first advised Barrett that he had the right to remain silent, that he had the right to the services of an attorney prior to making any statements, and that any statements he made could be used in court against him. Officer Burton asked Barrett if he understood these rights and Barrett said he did.

Officer Burton exhibited the items to defendant and Barrett was asked to relate any involvement in robberies which had occurred in Gardena. Barrett asked how many 'jobs' or 'counts' were going to be filed against him and Officer Burton said about four. Officer Burton explained that he was speaking of the robbberies at the Union Pharmacy and Barrett said he was involved in two robberies, possibly using the words, 'I am only good for two.' Barrett said there was no need of denying his implication as identification had been made and the police had some of the articles. He was asked to relate further information regarding the crimes, and he said he would have to contact his partner and his attorney. Barrett made the statements freely and voluntarily.

Officer Burton first saw the sweater when Mrs. Leyba brought it to him at the police department several days after the search.

Miss Matijevich went to two lineups, one in Gardena and one in East Los Angeles. She did not see Falcon in the lineup in Gardena, but picked out a person who was not either of the defendants. There was one person in this lineup.

Mr. Kemp went to the Gardena police department for identification of one man and did not identify that man as the person he had seen at the pharmacy. He later went to a lineup in East Los Angeles with Miss Matijevich and Elaine Lee. There were five or six men in this lineup and he identified one man, Falcon.

Miss Matijevich recalled that there were four people in the lineup in East Los Angeles. She identified Falcon and Barrett by their actions and their height. The actions which made them identifiable were that they were quick and sharp about their speech and they were very nervous types.

The defense presented no evidence. Several briefs have been filed on behalf of the defendants, including briefs by counsel, and several briefs by Falcon in propria persona.

I

Falcon contends that he and Barrett were held beyond the period set forth in Penal Code, section 825 before being arraigned and taken before a magistrate. We have been unable to find anything in the record to support thiscontention and matters not shown by the record will not be considered on appeal. Furthermore, a delay in arraignment in violation of Penal Code, section 825 does not require reversal, unless the delay prevented a fair trial, affected the outcome of the trial, or ...