People v. Calderon
| Decision Date | 26 November 1957 |
| Docket Number | Cr. 5930 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie Escamila CALDERON and Pete M. Vasquez, Defendants, Pete M. Vasquez, Appellant. |
David C. Marcus, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
This is an appeal from a judgment wherein the appellant was convicted of robbery.
In an information filed in Los Angeles county, defendants were charged with the crime of robbery in that they did on August 4, 1956, forcibly take from the person of Louis A. Balomenos the sum of $80. The defendants pleaded not guilty and the case was consolidated for trial with a cause in which a defendant Perez was charged with robbery. Calderon was found not guilty. Perez and Vasquez were each found not guilty. as charged and the offense was found to be robbery in the second degree. Probation was denied and appellant Vasquez was sentenced to the state prison and thereafter filed this appeal.
A substantial resume of the facts as testified to is as follows: Louis Balomenos, while walking along Avalon Boulevard near the Den Cafe, Wilmington, with a companion, Miss Jeanne Schinke, about 12:45 a. m., August 4, 1956, saw the three defendants crossing the boulevard coming toward him. Balomenos had never seen any of the defendants before. Vasquez apparently spoke first, saying something in Spanish and then in English asked Balomenos if he wanted to fight, and further saying something like 'Look at the big shot--big boy--sissy.' Balomenos answered that he did not wish to fight. Vasquez said, 'We are dirty Mexicans', and Balomenos countered with 'I am a clean Greek.' Miss Schinke and Balomenos told the defendants to leave them alone and she and Balomenos started walking on. The defendants smelled badly of intoxicating liquor. After a few steps had been taken Balomenos felt a blow from behind, the three defendants grabbed him and pulled his sweater up on to his head. Balomenos was struck with some object under the right eye and was struck otherwise with a stick. His sweater was ripped. Balomenos his one of the defendants and the latter went down. One or both of the other defendants ran off to a parking lot. Balomenos had a wallet in his rear left pocket containing about $79, and some personal papers. During the scuffle Balomenos felt a hand in his pocket pulling out the wallet. Soon after the one defendant was knocked down two persons known as 'Tony' and 'Hot Rod' came upon the scene in answer to a call for help from Miss Schinke. Balomenos was bleeding badly where he had been struck on the face and hands. The man known as 'Hot Rod' offered to take Balomenos to the nearby Den Cafe bar to help fix his eye and hand, but Balomenos stated that he would prefer to go to his nearby hotel room, and did go thereto with his companion, Miss Schinke. Balomenos changed some of his clothes and then went to the Den Cafe bar and inquired of Tony whether he knew the names of the defendants. Miss Schinke, about twenty minutes after the altercation, called the police. After the arrival of the police a search was made of the area and some papers of one of the defendants was found. Balomenos did not drink intoxicating liquor, he was not mad at the defendants or anyone else before the fighting began. Miss Schinke saw the defendant Perez with his hands in Balomenos' rear pocket and saw Perez run away. Calderon, one of the defendants, said that as he and his co-defendants approached Balomenos and Miss Schinke, Vasquez said, 'Hi Red', and Balomenos made inquiry as to whether he was trying to get smart and Vasquez' reply was in the negative. He also stated that he could smell liquor on the breath of Perez and Vasquez. Further, he testified that Balomenos was furious and that Balomenos picked up a board and started charging at Perez and that he, Calderon, tried to stop him and fell to the ground; that Hernadez (Tony) and Vasquez picked him up and he left with them. Calderon also testified that on Sunday morning, after the scuffle, he heard from Balomenos by telephone and that Balomenos stated in the talk that one of the defendants had taken his wallet and that $79 was missing, and if he did not get it back he was going to court. Calderon thereafter spoke to the other defendants and they denied knowing about the missing wallet.
Perez testified that he and Vasquez had drunk some beer and that he knew Miss Schinke by sight, that he did some scuffling with Balomenos, that he did not take the wallet and did not intend to rob anyone. Otherwise his statements coincided largely with Calderon's testimony.
Vasquez stated that he knew Miss Schinke and that he told her to get Balomenos away as the defendants did not want to fight and that Balomenos did want to fight. He further stated that Balomenos swung at Perez with a stick, and that he, Vasquez, grabbed Balomenos and pushed him aside; that he did not take the wallet, but the way Balomenos was acting, he (Vasquez) thought Balomenos must be under the influence of intoxicating liquor.
Frank Phillips testified that he was with Tony Hernandez when Miss Schinke came running into the Den Cafe bar about midnight and said three persons were beating up Balomenos, and that they then ran out and saw Balomenos standing with his hands up and Calderon on the ground; that he tried to hold Balomenos back and told Vasquez and Perez that if they wanted to fight Balomenos they should fight him one at a time. He stated that he and Hernandez returned to the Den and Balomenos came to that establishment about 1:15 o'clock a. m. in an excited condition and asked Hernandez if the defendants were Hernandez' friends; that Balomenos stated that he had beaten 'hell' out of them and that Balomenos had indicated an offer to fight. Phillips also stated that Balomenos left the Den and came back in shortly and inquired of Hernandez if he knew 'those guys'; that Balomenos had said they had stolen his wallet. Hernandez' testimony was substantially the same as that of Phillips and he testified further that he had seen Balomenos drinking on occasion. On cross-examination, Hernandez stated that he had heard that night that Balomenos' wallet had been taken. He denied ever telling Balomenos that if the latter would drop the matter he, Hernandez, could get Balomenos' wallet back and $300 in cash. He said that he heard of the offer, but that it was made by the bartender.
Clarence Carroll, a police officer, testified that he arrived at the Den about 1:00 o'clock a. m., August 4, 1956, and contracted Balomenos there and observed no odor of alcohol on his breath. He made a search of the area and found a Selective Service...
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