People v. Lagomarsino

• Decision Date: 21 April 1950
• Docket Number: Cr. 2612
• Citation: People v. Lagomarsino, 97 Cal.App.2d 92, 217 P.2d 124 (Cal. App. 1950)
• Court: California Court of Appeals
• Parties: PEOPLE v. LAGOMARSINO et al.

Page 124

217 P.2d 124

97 Cal.App.2d 92

PEOPLE v. LAGOMARSINO et al.

Cr. 2612.

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

April 21, 1950.

Nathan C. Coghlan, San Francisco, for appellants.

Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, Gilbert D. Ferrell, District Attorney of San Mateo County, Fred M. Wyckoff, Deputy District Attorney, Redwood City, for respondents.

PETERS, Presiding Justice.

Lagomarsino, Theus and Williams were charged in four separate counts, with having robbed, on March 7, 1949, Preffer, Adams, Magana and Ayala, a part owner, and three customers of a bar called the 'Silver Saddle' located in San Mateo County. They were jointly tried before the court without a jury. Williams was found guilty on counts 1 and 3; the other two defendants were found guilty on counts 1, 3 and 4; and all three defendants were found not guilty on count 2. From the judgment of conviction and from the order denying their motions for a new trial all three defendants appeal. Their two main contentions are that the evidence, as a matter of law, shows that they were induced to commit the crimes by a police informer, and that the information charges but one offense.

The facts disclosed by the record are as follows: Lieutenant Lee, officer in charge of the robbery detail of the San Francisco police department, testified that about 6 p. m. on March 6, 1949, he received a telephone call from a man who identified himself as 'Mac.' This person was subsequently identified as Ralph McGurney, an ex-convict, whom Lee had met on one occasion about four or five months prior to March 6, 1949. The trial court properly prohibited Lee from testifying on direct examination as to the conversation had with McGurney, but the defense elected to cross-examine on this conversation at length. Lee then testified that McGurney told him that three men, whom he named as the three defendants, and who had been, according to McGurney, committing robberies in the Bay area, were planning to hold up the 'Silver Saddle' bar that night at about 1:30 or 2:00 o'clock; that the plan was to hold up the owner as he was leaving the bar after it had been closed; that he did not know where the 'Silver Saddle' was located, but he promised to call Lee at 10:00 p. m. with further details. Lee ascertained that a tavern of that name was located in San Mateo County, and informed the Daly City and San Mateo County officials. The operators of the bar were also notified that a holdup might be attempted. McGurney telephoned Lee again at 10:00 p. m. and told him that the three men were insisting that McGurney use his car in the holdup. Lee told his information to use his car if he had to, but not to take any part in the holdup. McGurney also told Lee that the gang would be armed with guns supplied by Theus, one of the defendants.

Lee, together with several San Francisco officers, and with officers from San Mateo County and Daly City, then went to the 'Silver Saddle' and surrounded the establishment, hiding in concealed places. Preffer, a part owner of the 'Silver Saddle,' testified that about 1:00 a. m. McGurney came into the bar, ordered a drink, consumed it, and then left; that about a half an hour later Lagomarsino came in, and sat down at one end of the bar; that he was followed by McGurney who sat at the other end of the bar; that Theus and Williams then came in, whereupon Lagomarsino jumped up and yelled 'This is a stick-up'; that in the bar at that time, in addition to Preffer and the robbers, were the janitor and three customers, Adams, Ayala and Magana; that Williams and Lagomarsino had guns, and Theus, who was masked, had a blackjack; that Theus hit all three customers with the blackjack and compelled them to lie on the floor; that various valuables were removed from the persons of the three customers; that Lagomarsino went to the cash register behind the bar and reported to his companions that there was no money in it; that Theus then hit Preffer with the blackjack and ordered him to open the safe; that Theus removed from the person of the witness his wallet, wrist watch and pen; that Williams stayed at the door of the tavern with a gun in his hand covering the patrons who were lying on the floor; that after the three defendants, whom he identified at the trial, had been on the premises something over ten minutes, an automobile horn sounded outside and they left; that he then heard shots, and two of the defendants, Lagomarsino and Williams, ran back into the bar and tried to hide; that the officers rushed in and found Lagomarsino hiding under a table and Williams hiding in the women's rest room.

Several of the officers testified as to the arrival of the defendants accompanied by McGurney who was driving; that after the holdup started they observed what was going on through several windows; that after the robbery started McGurney came outside and sat in the automobile and then tooted the horn; that the three defendants came running out, led by Theus; that several shots were fired at Theus and he was captured outside; that Lagomarsino and Williams were captured inside the bar as recounted by Preffer. Guns were found where Lagomarsino and Williams had been hiding. McGurney was not arrested and was not produced as a witness. His whereabouts were not disclosed. There was substantial evidence that the three defendants were not drunk.

Each of the defendants testified. They told substantially the same story. They admitted being present at the 'Silver Saddle,' but all contended that the robbery was conceived and planned by McGurney. Lagomarsino stated that he had known McGurney for seven or eight years; that on the evening of March 6, 1949, he met McGurney in a San Francisco bar about 6:30; that he had a couple of beers, and that McGurney induced him to put some capsules, identified as 'goof balls,' into his drinks; that he became very 'high' as a result, and then had several drinks of whiskey; that about 10:00 p. m. he and McGurney picked up the witness' girl friend at her place of work, and took her to a restaurant where McGurney telephoned some one; that they took his girl friend home about 11:30 p. m.; that he then asked McGurney to take him home as he was feeling 'dopey'; that instead McGurney took him to a bar where he had more whiskey and another capsule; that they then went to Theus' home where a party was in progress and where he had more to drink and several more capsules; that he saw McGurney give some of the capsules to Theus and Williams; that they then ran out of drinking material and McGurney suggested taking a ride in his car to get more whiskey; that after the four got into McGurney's car, McGurney drove towards the 'Silver Saddle'; that on the way McGurney suggested the holdup and furnished the guns. Lagomarsino admitted his participation in the robbery and his arrest at the scene.

Theus testified that he first met McGurney when he arrived at the Theus home with Lagomarsino about midnight; that McGurney gave him some capsules to put into his drinks, which made him very drunk; that when the four left in McGurney's car he was drunk and fell asleep; that he knew absolutely nothing about the plans to hold up the 'Silver Saddle'; that he awakened when the party arrived in front of the bar, and accompanied his companions inside thinking they were going in to get some whiskey; that he knew nothing of any holdup, and that he had no blackjack.

Williams testified substantially as did Theus, except that he admitted learning about the proposed holdup from McGurney while McGurney was driving towards the 'Silver Saddle.' He testified that the guns were furnished by McGurney and that the whole idea of the robbery originated with McGurney.

Various admissions were made by several of the defendants after their arrests and admitted into evidence against the particular declarant. Lagomarsino, for example, told a police inspector on the afternoon of March 7, 1949, that early on March 6th, Theus had told him about the proposed robbery and furnished the guns, and that he, Lagomarsino, had demanded $1,500 of the proposed take as his share.

Defendants do not deny that a robbery as defined in section 211 of the Penal Code took place, and that they participated, but they contend that the uncontradicted evidence demonstrates that McGurney, acting under the supervision of the San Francisco police, originated the plan, and that it was McGurney who persuaded and induced them to commit the crime. In support of this defense of entrapment they contend that the uncontradicted evidence shows that it was McGurney who drove and owned the holdup car, and that it was McGurney who entered the bar a half hour before the holdup apparently to 'case' the tavern. Other portions of the record are referred to, and it is many times pointed out that the police made no attempt to prevent the holdup, but waited until it had occurred before interferring.

The rule as to when an entrapment is a defense was stated as follows in People v. Lindsey, 91 Cal.App.2d 914, 917, 205 P.2d 1114, 1115: 'It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment.' Among the many cases supporting this rule are People v. Malone, 117 Cal.App. 629, 633, 4 P.2d 287; People v. Kennedy, 66 Cal.App.2d 522, 523, 152 P.2d 513; People v. Makovsky, 3 Cal.2d 366, 369, 44 P.2d 536; People v. Grosofsky, 73 Cal.App.2d 15, 18, 165 P.2d 757; People v. Jackson, 80 Cal.App.2d 386, 390, 181 P.2d 889; People v. Cherry, 39 Cal.App.2d 149, 151, 102 P.2d 546.

Even if it be assumed that the evidence demonstrates, without conflict, that McGurney was a police decoy and participated in the holdup under instructions from the police...