People v. Ponce, Cr. 4418

• Decision Date: 02 March 1950
• Docket Number: Cr. 4418
• Citation: 96 Cal.App.2d 327,215 P.2d 75
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. PONCE.

Page 75

215 P.2d 75

96 Cal.App.2d 327

PEOPLE v. PONCE.

Cr. 4418.

District Court of Appeal, Second District, Division 3, California.

March 2, 1950.

Hearing Denied March 30, 1950.

Morris Lavine, Los Angeles, for appellant.

Fred N. Howser, Attorney General, Gilbert Harelson, Deputy Attorney General, for respondent.

SHINN, Presiding Justice.

By information in three counts appellant Ponce was charged with robbery of Louis D. Pitzel, robbery of J. S. Addis, and kidnaping of Louis D. Pitzel for the purpose of robbery. Two prior convictions were alleged. Appellant admitted the two prior convictions and that he had served terms of imprisonment therefor. Following a trial by jury he was found guilty on all three counts; his motion for a new trial and application for probation were denied; judgment was pronounced, defendant was found to be an habitual criminal within the meaning of section 644(a) of the Penal Code, and was sentenced to prison for the term prescribed by law (for life) on each of the robbery convictions, and for the term of his natural life with possibility of parole upon the kidnaping conviction. The sentences on the first two counts were ordered to run concurrently with the sentence on the third count. The appeal is from the judgments of conviction on all three counts and from an order denying a motion for new trial.

Appellant was identified by Louis D. Pitzel as one of three men who held up his cafe on the morning of December 3, 1948, the other two being one Valencia, and one Burrer. Pitzel testified that at the point of a gun Burrer ordered him to the front of the bar where he took his wallet containing several hundred dollars; Pitzel saw Ponce back off from the stool where he had been sitting at the bar and start tugging at something in his trousers, and then start clearing the customers down to the end of the bar and ushering them into the men's room; Pitzel refused to open the front cash register drawers and Burrer opened them himself, finding nothing; Burrer ordered Pitzel back to the central cash register which they opened and Burrer gathered what bills he could; Pitzel was then ordered from the bar to an office some 60 feet away, where Burrer then ordered Pitzel out of the office toward the men's room, some 40 feet from the office; defendant Ponce dashed through an archway and motioned to Burrer whereupon the latter forced Pitzel, still at the point of a gun, to enter the men's room in which the other guests and employees had already been placed. While Pitzel was still behind the bar a waitress came to the front door and finding it to be locked walked to the rear door and entered through the kitchen. She was met by defendant Ponce, who escorted her into the restaurant at the point of a gun which Pitzel described as a long barrel revolver type made of blue steel. James S. Addis testified that he was in the cafe at the time of the robbery; as he finished ordering his breakfast he noticed defendant Ponce sliding off his stool at the bar and reaching for something in his trousers; Ponce drew a large gun, pointed it at him and said 'This is a holdup, get over there in the dark'; Addis went and stood outside the men's restroom while Ponce went to the front and forced the other customers toward the back; they were then ordered into the men's restroom and after a few minutes Ponce came in which the revolver in his hand and forced Addis to give him some $20 which he had in his pocket. John W. Powers, a Los Angeles policeman, testified that he went to Denver, Colorado, to apprehend defendant Ponce; in the presence of Powers and his partner, Ruiz, and Captain Pitt of the Denver Police, Ponce admitted that he had participated in the robbery and had received about $500 from it; Burrer had provided the car which they had used; he went on the job because he thought it would be easy but that he did not want to have anything more to do with Burrer; after leaving the cafe Valencia had gotten out of the car at the end of Macy Street and he, Ponce, had gotten out on Soto Street and had gone to Mexico. Powers testified that all of these statements were free any voluntary.

The foregoing evidence is clearly sufficient to support the conviction of robbery. It is also sufficient to support the conviction of kidnaping. People v. Tanner, 3 Cal.2d 279, 295, 44 P.2d 324; People v. Johnston, 140 Cal.App. 729, 35 P.2d 1074; People v. Melendrez, 25 Cal.App.2d 490, 77 P.2d 870.

Appellant's chief contention is that section 209 of the Penal Code, which defines the crime of kidnaping for the purpose of robbery, was not intended to repeal or replace section 211 which defines the crime of robbery, and that section 209 both inherently and as applied in the present case is unconstitutional in that it makes every robbery a kidnaping and thus provides double punishment for a single offense. We find it unnecessary to pass upon the merits of theis contention (see People v. Tanner, 3 Cal.2d 279, 44 P.2d 324; People v. Tanner, 77 Cal.App.2d 181, 186, 175 P.2d 26; People v. Simpson, 66 Cal.App.2d 319, 152 P.2d 339; People v. Bruno, 140 Cal.App. 460, 35 P.2d 391), in view of the fact that the sentences in the present case, which were all for life imprisonment, were ordered to run concurrently. Since his conviction and sentence were in any event clearly proper on the robbery counts, appellant is in no way prejudiced and may not urge the invalidity of his conviction for kidnaping. People v. McWilliams, 87 Cal.App.2d 550, 553, 197 P.2d 216, and cases there cited; People v. Bean, 88 Cal.App.2d 34, 41, 198 P.2d 379; People v. Benenato, 77 Cal.App.2d 350, 367, 175 P.2d 296.

It is argued that the court erroneously failed to...