People v. Kostal

• Decision Date: 17 April 1958
• Docket Number: Cr. 5989
• Citation: 323 P.2d 1020,159 Cal.App.2d 444
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Joseph KOSTAL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1020

323 P.2d 1020

159 Cal.App.2d 444

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Joseph KOSTAL, Defendant and Appellant.

Cr. 5989.

District Court of Appeal, Second District, Division 2, California.

April 17, 1958.

Rehearing Denied May 7, 1958.

Hearing Denied June 11, 1958.

Joseph M. Rosen, Harold J. Ackerman, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., John A. Vander Lans, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of armed robbery. He was charged with the admitted three prior convictions, which resulted in his imprisonment. Defendant's motion for a new trial was denied and he was sentenced to the state penitentiary, the prior and present sentences to run consecutively. Defendant has appealed from the order denying his motion for a new trial and from the judgment.

Defendant escaped from Folsom Penitentiary on November 21, 1956. He came to the Los Angeles area where he remained until November 29th. Shortly before midnight on November 25th John Barkley's gunshop in Van Nuys was burglarized and two automatic pistols were stolen. On November 26th, at approximately 8:45 p. m., John B. Hood, manager of Rand's Round-Up, a restaurant located on Wilshire Boulevard in Los Angeles, was seated in a booth at the right of the cash register facing the door; he observed defendant enter the restaurant so he arose and went behind the cash register. Defendant was dressed in army fatigue clothes and was wearing a fatigue cap. When Hood reached the cash register defendant was within an arm's length of him. Defendant pulled a gun and said to Hood: 'Give me everything you've got.' Hood stepped aside and told him to help himself. Defendant reached into the cash register and took $385. Defendant had a .45 caliber automatic, which was the same type as that previously taken from the Barkley gunshop. Hood described defendant as approximately 6 feet tall, 35 years old, 'kind of a sleepy-eyed sort of person,' and weighing 135 to 140 pounds.

George H. Hardy was in the cafe, and while approaching the cash register to buy dinner tickets, observed defendant in front of the register speaking to Hood. When Hardy was 3 or 4 feet from the two men defendant turned toward him, pointed a gun at him, and told him to step back. He obeyed and raised his eyes to the ceiling. He did not see defendant leave the restaurant. Hardy's observation of defendant covered a period of from 10 to 15 seconds. He described defendant as approximately 6 feet tall, weighing 180 pounds, dressed in olive drab fatigue clothes, and wearing a cap of the same color. Both Hood and Hardy identified defendant from photographs that were shown them by the police officers.

Defendant was apprehended in Kansas City, Missouri, about the middle of January, 1957. The property custodian of the Kansas City police department turned over to Deputy Sheriff Lightner of Los Angeles a .45 caliber automatic which had been found in the possession of the defendant when he was arrested. Officer Lightner observed that 'The safety, which is on the left rear portion of the gun lever, had been wired down with real small wire.' He asked defendant why the wire was on the safety. The defendant took the gun and stated: 'This safety will fall out if it is not wired down, so I had to wire it down to keep it from falling out.' Defendant 'demonstrated it by taking the revolver and shaking it and turning it on its left side and showing how the lever did fall out.' Defendant, however, declined to explain, when the officer asked him, where he had obtained the gun. The defendant stated: 'I don't wish to discuss anything regarding it.'

Defendant was arraigned on the charge herein on February 11, 1957, in Department 41 of the superior court. Immediately following arraignment defendant and some other prisoners forced their way out of the detention tank and defendant escaped. Some days later he was located at a home in Whittier, California, and was rearrested.

Defendant denied any connection with the robbery of Rand's Round-Up. According to his testimony, he spent the evening in question at a theater in Los Angeles which was showing foreign films. He claimed to have been with a friend, Arthur Watson, who was confined in the county jail at the time of the trial. Defendant also denied any connection with the breaking into and entering of Barkley's gunshop. He refused to answer questions relative to his possession of a Colt .45 automatic at the time of his arrest in Kansas City on the ground that his answer might tend to incriminate him. Defendant is 5 feet 11 inches in height; his normal weight varies from 170 to 180 pounds.

William Meyer, an inmate of San Quentin Prison, was at liberty in Los Angeles on November 26, 1956. Meyer testified that at approximately 9:00 p. m. on that date he entered Rand's Round-Up on Wilshire Boulevard wearing a green, army fatigue jacket, trousers and a cap, and that he had in his possession a .45 caliber automatic which he later disposed of in Tijuana. He further testified that he approached the counter where the cash register was located and asked the manager for the money from the register, but he refused to state whether he exposed his gun on the ground that his answer might tend to incriminate him. He further stated that some people had told him he had 'sleepy eyes' and others that he had 'marijuana eyes.' His weight was approximately 185 pounds, and he was 6 feet 2 inches in height. He further stated that he had been convicted six times.

Defendant 'does not question the sufficiency or weight of the evidence' to sustain his judgment of conviction. His position is that 'if the errors complained of had not occurred it is reasonable to believe that the jury could have accepted the facts favorable to defendant and returned a verdict of not guilty.'

Defendant's first contention is that the court erred and abused its discretion in denying his request for examination of the police reports of the crime to determine whether a disparity existed between Hood's statement to the police and his testimony at the trial. In support of this contention he relies on People v. Riser, 47 Cal.2d 566, 305 P.2d 1. That case, however, does not reach defendant's point. The court stated, 47 Cal.2d on pages 585-586, 305 P.2d on page 13: 'The decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production when it becomes clear during the course of trial that the prosecution has in its possession relevant and material evidence. Production has been denied, not on the ground that there was never any right to it, but because the requirements justifying production had not been met in the particular case. [Citation.]' The court cited with approval People v. Glaze, 139 Cal. 154, 72 P. 965, and pointed out that the court there refused to order production of a statement that appeared to the court to be inadmissible for any purpose, even for impeachment, since '[t]he witness had neither signed the statement nor adopted it in any way.' 47 Cal.2d on page 586, 305 P.2d, on page 14. In the Glaze case, the court delineated the circumstances under which a statement could be used for the purpose of impeaching a witness by showing that he had made statements out of court inconsistent with testimony given by him on the trial. The court stated (139 Cal. on page 157, 72 P. on page 966): 'The only statements that can be used for that purpose, if in writing, are statements made by the witness himself, either directly in his handwriting or over his signature, or indirectly by his adoption of, or admission of, the correctness of a written report of his statements made by some other person. He cannot be held responsible for a statement taken down by another, purporting to be a report of his oral declarations, unless he has been made acquainted with the contents of such statement, and directly or indirectly admitted that it was correct.'

From these authorities it is clear that the police report of the robbery by Hood could not be used for purposes of impeaching his testimony in the absence of a prima facie showing that he had either written or signed the statement, or that he had adopted or approved it, or otherwise acknowledged its correctness. In the absence of a proper foundation having been laid therefor, it was neither error nor an abuse of discretion to deny defendant's request to see the police report in question.

Defendant's second contention is that 'The court was without jurisdiction in that the information was fatally defective.' He argues that 'the facts stated did not constitute a public offense in that the Information failed to allege ownership or possession of the property taken was in someone other than the defendant.' Section 211 of the Penal Code defines robbery as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accompanied by means of force or fear.' This same point was raised in People v. Wade, 71 Cal.App.2d 646, 163 P.2d 59. In rejecting the defendant's contention, the court stated (71 Cal.App.2d on page 658, 163 P.2d on page 66): 'It is perfectly clear under numerous recent authorities that the information is amply sufficient in this respect, particularly in view of the 1927 amendment to Penal Code sections 951 and 952, liberalizing the rules of pleading, and in the light of the fact that the gravamen of the offense of robbery is the deprivation of possession and not ownership. [Citations.]' To the same effect, see People v. Covington, 1 Cal.2d 316, 318-320, 34 P.2d 1019; People v. Voiler, 2 Cal.App.2d 724, 726, 38 P.2d 833.

The information herein as amended alleged that defendant 'did willfully, unlawfully, feloniously and by force and fear take from the person, possession and immediate presence of John Hood' certain described property.

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