People v. Bryan
| Decision Date | 08 January 1970 |
| Docket Number | Cr. 15796 |
| Citation | 3 Cal.App.3d 327,83 Cal.Rptr. 291 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. William Thomas BRYAN, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Charles M. Berg, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.
William Thomas Bryan in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.
*
Defendant was charged by information with the crime of robbery (Pen.Code, § 211) in count 1. It was further alleged that at the time of the commission of the offense he was armed with a deadly weapon, to wit, a revolver. Count 2 of the information charged illegal possession of a firearm by a convicted felon in violation of section 12021 of the Penal Code. The defendant was also charged with two prior felony convictions which were separate and distinct from the felony conviction alleged as part of the substantive offense set forth in count 2. One was for burglary in the County of Los Angeles on April 26, 1962, and the other was for larceny, a felony, in the County of Philadelphia, State of Pennsylvania, on January 18, 1961. It was further alleged that he suffered imprisonment in state prison upon each of such prior convictions. Defendant entered a plea of not guilty and denied the truth of the allegations of prior convictions.
On September 28, 1967, before Judge Breitenbach, a jury was impaneled and sworn. The defendant was sworn and testified, out of the presence of the jury, regarding the prior convictions. At the conclusion of this testimony, on motion of the defendant, the two separately alleged priors were stricken. The jury was returned to the courtroom and was admonished to disregard any reference to the priors stricken. At this point the defendant moved for a mistrial and the motion was granted, and the jury was discharged. On October 24, 1967, the case was again called for trial and was continued on motion of the defendant. At this time the defendant and counsel of his own choosing requested the court to appoint an investigator to help locate and subpoena a witness. This request was denied.
On November 30, 1967, before Judge Light, the cause went to trial before a jury. The court heard evidence concerning the validity of the prior convictions and ruled that some of them could be used for the purpose of impeachment if defendant took the stand. At the conclusion of the People's case, count 2 of the information was dismissed in the interests of justice. The jury returned its verdict finding the defendant guilty of robbery and found it to be robbery in the first degree. The jury also found the defendant to have been armed with a deadly weapon at the time of the commission of the offense. Defendant's motion for a new trial was denied, probation was denied, and he was sentenced to state prison.
The judgment recites that the defendant was armed as alleged in the information, at the time of the commission of the offense, and that the defendant admitted the two separately alleged prior convictions of felony charged in the information. On May 1, 1968, the date set for hearing of defendant's motion to vacate and set aside the judgment, among others, the trial court ordered the judgment amended Nunc pro tunc by striking therefrom all reference to the two separately alleged prior felony convictions which had been ordered stricken from the information on September 28, 1967, the court stating that 'the Defendant went to trial without priors alleged.'
The appeal is from the judgment, from the order denying the motion for a new trial, and from the order denying probation. 1
Howard S. Donnell, Jr., is employed as the manager of the Chicken Delight Restaurant located at 6150 Hollywood Boulevard in the City of Los Angeles. He was working at the restaurant at the midnight hour on April 22, 1967. In the restaurant at the time was Mr. Bryan O'Connor, Miss Sherry Stone, and Mr. Edward Voight. All three were employees, but only O'Connor and Miss Stone were on duty at the time.
Miss Stone was standing behind the second counter in the restaurant, and O'Connor was at the front counter talking on the telephone. Donnell was in the pizza area making a pizza. The defendant walked into the restaurant, stood away from the counter at first, and looked down at the pizza sign located in the front area. Miss Stone asked if she could help him. The defendant replied that he wanted a small cheese pizza. Miss Stone relayed the order to Donnell.
O'Connor finished his telephone call and, not having heard the order placed with Miss Stone, asked the defendant if he could help him, wrote down the order for a small pizza and passed it on to Donnell.
Donnell, who was making pizzas at the time, noticed the defendant come into the restaurant because the latter was wearing a light beige raincoat with a tie belt and dark sunglasses, and it was not raining. Defendant walked up to the front counter where O'Connor was stationed. Donnell observed the defendant engaged in conversation with O'Connor who was standing behind the counter.
Donnell first heard shouts. He heard O'Connor say, 'Oh, no you don't, not here, don't do that, no, you can't.' Donnell then started for the front of the restaurant, walking around the corner towards the cash register, when Miss Stone called out, 'He's got a gun.'
Mr. O'Connor had closed the cash register. The defendant was seen fumbling around trying to get the register open. Finally, he opened the register, took out the bills first, and then the coins. Donnell was standing about 9 feet from the defendant at this time.
Mr. Voight observed the defendant at the counter reaching over into the cash register, taking money out of it with one hand. He held a gun in the other hand. At the same time that Donnell started coming around to the front of the restaurant, O'Connor was backing away from the register into the back room, and Miss Stone, who was directly in front of the defendant, went underneath the counter and onto the floor.
While the defendant was taking money out of the register, Donnell had an opportunity to observe and study his clothes, his appearance and his face. After taking the money the defendant left the premises and was observed by Donnell walking west on Hollywood Boulevard in the direction of Argyle. He observed the defendant walk to a point opposite the parking lot of the Broadway Tire Center, then turn left and walk into the parking lot. Donnell then drove his car to Argyle and an alley-way just south of Hollywood Boulevard where he stopped and parked his vehicle. After looking in all directions, he observed the defendant seated in a parked car. This car was headed toward Vine Street. Meanwhile, Mr. Voight had gone out in front of the restaurant and had observed some police officers across the street talking to a motorist. He informed the police as to what had happened and they left and went down El Centro Street. Voight then joined Donnll on Argyle Street near a parked car. He observed a man sitting in a car behind one of the stores that faced on Hollywood Boulevard. This man seemed to be moving around in the car. Shortly after that the man got out of the car carrying an object resembling a suitcase. The man stopped at a loading dock directly in front of the car and it appeared that he left the object there. The man then started across another parking lot toward Hollywood Boulevard, at which time Voight followed him. Voight followed the man because he appeared to be the same person who had just robbed the restaurant. Donnell also recognized the man as the one who perpetrated the robbery. When the man left the parked vehicle, he was wearing a black sports coat, light gray pants, dark shoes and black socks. Both Donnell and Voight saw the man enter a bar called the Haunted House. The police were notified and, upon their arrival, Donnell, Voight and the police entered the Haunted House where the defendant was placed under arrest.
A cursory search of the defendant at the time of the arrest and a later search at the Hollywood Police station turned up a set of keys that fit a 1960 blue Rambler which was parked in a loading area at the rear of 6260 Hollywood Boulevard. There were a large number of bills found in two pockets of the defendant's pants and in two pockets of his jacket, totaling $132. A total of about $150 was reported taken.
Myrl Thorne, a police officer for the City of Los Angeles, was in the area of the Haunted House about midnight of April 22. He found a plaid overnight case at the rear door of the building located at 6260 Hollywood Boulevard. Inside the overnight case he found a trench coat, a pair of dark sunglasses, a .38 calibre Smith & Wesson, bulldog model, five .38 calibre bullets, and $11.20 in quarters and nickels. He also found an address book.
The defendant took the witness stand and testified in his own behalf. On direct examination he admitted that he had been convicted of a felony in the State of Pennsylvania in 1961, and of a felony in the State of California. These prior felony convictions were one and the same as those separately charged in the information, and which had been stricken by the court at the first trial.
The defendant testified in substance that on the night of April 22, 1967, at about midnight, he took some money from the Chicken Delight Restaurant on Hollywood Boulevard. He related that at 6 o'clock on the evening in question he took his wife to work and then drove to Hollywood Boulevard and Western Avenue. Thereafter, he went to see a friend of his who ran a hot dog stand on the corner. His friend was not there, but he met a girl friend there by the name of Angie Rivera. She was with a male friend whose name he did not...
To continue reading
Request your trial
-
Cook v. State, 61
...or the State the opportunity to litigate directly their rights on retrial of the cause. It was so held in People v. Bryan, 3 Cal.App.3d 327, 83 Cal.Rptr. 291, 299 (1970), where the defendant had been successful in securing a ruling from the initial trial court striking testimony of prior Pe......
-
Newton v. Superior Court of California, In and For Alameda County
...was not appealable and not binding on the court at a subsequent trial based on the same accusatory pleading. People v. Bryan, 3 Cal.App.3d 327, 339, 83 Cal.Rptr. 291, 299 (1970). The California court in Bryan concluded that "[t]he granting of a ... mistrial is tantamount to a holding that t......
-
People v. Matthews
...constitutional right to confrontation. (People v. Lizarraga (1974) 43 Cal.App.3d 815, 820, 118 Cal.Rptr. 208; People v. Bryan (1970) 3 Cal.App.3d 327, 345, 83 Cal.Rptr. 291; People v. Purcell (1937) 22 Cal.App.2d 126, 132, 70 P.2d 706). 5 Thus, section 969b supplements Guerrero by permittin......
-
Montgomery v. State
...violate the defendant's face to face or confrontation rights. State v. Miller, 608 S.W.2d 158 (Tenn.Cr.App.1980); People v. Bryan, 3 Cal.App.3d 327, 83 Cal.Rptr. 291 (1970); State v. Dawson, 91 N.M. 70, 570 P.2d 608 (1977). Wigmore on Evidence, § 1398, Note 8; see also 21 Am.Jur.2d Criminal......
-
Table of cases
...Bruneman (1935) 4 Cal.App.2d 75, 81, §9:92 People v. Bruni , 406 Ill.App.3d 165, 940 N.E.2d 84 (2010), §7:20.27.2 People v. Bryan (1970) 3 Cal.App.3d 327, 345, §9:105.4 People v. Bryant (2011) 191 Cal.App.4th 1457, §9:93.4 People v. Bryant (2019) 42 Cal.App.5th 839, §10:30.5 People v. Buckh......
-
Trial defense of dui in California
...unavailability of witnesses, documentary proof of a prior conviction does not violate the confrontation guarantee. ( People v. Bryan , 3 Cal. App.3d 327, 345; People v. Coyle , 88 Cal.App.2d 967, 978, (cert. den., 337 U.S. 909 (1949)); People v. Purcell , 22 Cal.App.2d 126, 132; People v. R......