People v. Perez
| Decision Date | 04 May 1966 |
| Docket Number | Cr. 245 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Enrique PEREZ, Defendant and Appellant. |
For Opinion on Hearing, see 55 Cal.Rptr. 909, 422 P2d 597.
Peter G. Fetros, Sacramento, for appellant.
Thomas C. Lynch. Atty. Gen., Raymond M. Momboisse and Theodore T. N. Slocum, Deputy Attys. Gen., Sacramento, for respondent.
The defendant, Enrique Perez, was accused of a whole saturnalia of crime in Sacramento. The information under which he was convicted alleged two previous felony convictions for robbery in the first degree committed in March of 1962; they were ultimately admitted by the plea of the defendant. The charges of present crime were stated in four separate counts: the first alleged robbery of $50 from Fred Fauble, the bartender at the Viking Club, on the 3rd day of January, 1965; the second charged robbery of James Monahan at the Corner Market in Sacramento County on January 15, 1965, and the abstraction of $77, a brown leather wallet, and a G. E. radio; counts 3 and 4 grew out of the robbery of Ralph's Bar in Sacramento; count 3 involved the taking of an undetermined amount of money from Ralph's Bar in the lawful possession of the bartender, Ray Biner; and count 4 referred to money stolen from a guest of the bar, Eli Dragash, on the same date, January 13, 1965. Each of the four counts charged that the defendant was armed with a deadly weapon, to wit: an automatic pistol. The jury brought in a verdict of guilty as to all four charges. It is noteworthy that one David Perez, not related to Enrique, admitted participation in the robberies of the Corner Market and Ralph's Bar by pleading guilty.
The defendant appealed from 'the final judgment and sentence made and rendered in said Superior Court on May 10, 1965, and from the whole thereof.' This appeal is to be treated as a single appeal from the four counts covered by the judgment. (People v. McDonough, 198 Cal.App.2d 84, 86-87, 17 Cal.Rptr. 643.)
Appellant presents three arguments for reversal, saying:
(1) That it was prejudicial error for the court and the prosecuting attorney to comment on the failure of the appellant to testify regarding certain counts of the information (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); (2) that the court committed prejudicial error by allowing evidence concerning the alleged robbery by the defendant of the Modern Variety Store, a crime which was not charged in the information, but which, according to the People, showed plan, design, and characteristic pattern of criminal activity; and (3) that, as a matter of law, there was insufficient evidence to sustain convictions on counts 3 and 4 of the information.
We shall treat these contentions in inverse order. The evidence very clearly establishes the propriety of the conviction on count 1 (the Viking Club robbery), in connection with which the defendant left his fingerprints at the scene of the crime, and on count 2 (the Corner Market robbery), in which there was identification of the defendant as a participant in the crime by eyewitnesses.
Count 1 alleged the robbery on January 3, 1965, of the Viking Club at 1445 33rd Street in Sacramento, at which time $325 in cash, a Shell credit card, and a BankAmericard were stolen. Frederick Fauble was working on the premises as the bartender. One of the participants was dark complexioned with dark hair and was armed with a small automatic pistol; the other robber was described as being blonde and light skinned; the darker-skinned criminal held a gun on Fauble and ordered him to lie on the floor.
Appellant took the stand and denied the robbery, saying that he had been with his brother, Miguel, and a friend, Joseph Rosales, from 7:30 p. m. on January 3, until 1 a. m. on January 4; this claim was supported by testimony of the brother and of Mrs. Joseph Rosales, but was rejected by the jury.
Enrique Perez admitted that he had made numerous purchases by using the BankAmericard stolen from Fred Fauble, but claimed that he had been given this card in early January by one Robert Gomes, after originally trying to sell it to him; when he used the card he signed the name 'Fred Fauble' as buyer.
Among the purchases made by the defendant with the stolen BankAmericard on days closely following the robbery were the following:
On January 4, 1965, it was used to purchase a $24.95 watch from the Ben Franklin Store in Davis; on the same day, the stolen card was used at the IXL, Inc. store at 804 'j' Street in Sacramento, to purchase a pair of black imitation leather gloves similar to those received in evidence; on January 4, 5, or 6, 1965, Fauble's card was used at Devlin's Shoe Den, 1007 11th Street, Sacramento, to purchase the pair of shoes which appellant was wearing in court at the time of the trial; on January 5 and 7, 1965, the credit card was used to purchase gasoline at two different Shell service stations in the Sacramento area for appellant's vehicle bearing license number LDT 141; on January 7, 1965, a black, narrow-brimmed hat was bought from Jim Patterson's Men's Store, 9th and 'K' Streets, Sacramento.
Count 2 involves the robbery of the Corner Market at 1700 'V' Street, Sacramento. James Monahan, the storeowner, and his wife were the victims. Appellant took the witness stand in his own behalf and testified to an alleged alibi, which was rejected by the jury. This robbery occurred at about 7 p. m. David Perez was the 'heavy set' robber armed with an automatic pistol, who confessed to this crime and also to the holdup of Ralph's Bar. Appellant, the smaller robber with a lighter build, carried an 'odd looking,' revolver with a 'hexagonal' barrel. Both participants wore dark coats and black gloves, probably leather, dark narrow-brimmed hats, and dark pants.
Each of the men held a glove or cloth up to his face during most of the time so that his nose and mouth were covered. Appellant had his hat pulled down to the level of his eyebrows; he went to the counter with gun in hand and said, 'This is a stickup,' and he made Mrs. Monahan put all the money from the cash register into a paper bag. Mr. Monahan was ordered to hand over his wallet which contained $14 to $17. The storekeeper testified that appellant said 'to drop our hands and not make a move, or not to look at him or he would kill us.'
When the appellant walked behind the counter, he dropped the covering from his face, and the Monahans got a momentary full face view. He took Mrs. Monahan's radio from the counter beneath the cash register, and left the store with his partner, David. Besides stealing the radio, the robber took $69 in cash.
Each of the Monahans, in open court, identified appellant as the shorter of the two robbers who held them up.
Counts 3 and 4 are concerned with the robbery of Ralph's Bar at 1730 16th Street in Sacramento, and of a customer there, one Eli Dragash. Here, there was no evidence of fingerprints or of personal identification; the verdicts on counts 3 and 4 depend on circumstantial evidence. There were three participants; they took coins and bills from the cash register; one of the robbers was a large man with a 'footballtype' build, and the other two were smaller. David Perez, the large man, pleaded guilty to both the Ralph's Bar robbery and the Corner Market robbery; he was wearing a white Halloween mask over the lower part of his face at Ralph's Bar. Neither the bartender nor Dragash was able to look at the faces of the shorter men. Dragash, who was partly blind, testified as to some of the items of clothing worn by one of the participants and the weapon used in the crime.
A criminal conviction will ordinarily not be reversed on insufficiency of the evidence unless it is clear to the appellate court that there is not sufficient substantial evidence, upon any hypothesis, to support the verdict. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Hickok, 230 Cal.App.2d 57, 59, 40 Cal.Rptr. 687.) The jury was in a position to view the witnesses who testified and to weigh the evidence both direct and indirect leading to their verdict, and '[t]his court may not disturb such finding or the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction.' (People v. Farrington, 213 Cal. 459, 463-464, 2 P.2d 814, 815.)
The appellant contends that the evidence in support of the convictions on counts 3 and 4 (Ralph's Bar) merely raises a suspicion of guilt. However, the record does contain substantial, even though circumstantial, evidence supporting the jury's finding on those two counts. It was stipulated that David Perez was one of the robbers--the one who was said to have had a 'football player' physique. Enrique Perez was with David Perez at Sylvia Moreno's apartment, which was located approximately three blocks from Ralph's Bar, at about 1 or 1:30 a. m. on January 13, 1965; that was just before or just after the robbery. Eli Dragash stated the approximate weight and height of one of the shorter robbers and Ray Biner, the bartender, also estimated the height of one of them; the jury, of course, had a full opportunity to observe appellant. Eli Dragash testified that one of the shorter robbers wore a hat, mask, and a three-fourths length coat and also that he carried a .38 revolver. This dress was identical with, or at least markedly similar to, that worn by appellant in the Corner Market robbery, which took place two nights later in virtually the same neighborhood. The weapons used by the robber in both places were apparently identical in size and shape.
Mr. Dragash was ordered to lie down by one of the shorter robbers, and he was then 'frisked.' Similarly, in the Viking Club holdup, one of the two relatively short robbers ordered his victim, Fred Fauble, to lie down and he then took Fauble's...
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