People v. Rostamo

• Decision Date: 10 April 1967
• Docket Number: Cr. N
• Citation: 58 Cal.Rptr. 74,249 Cal.App.2d 983
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Willard ROSTAMO, Defendant and Appellant. o. 12685.
• Court: California Court of Appeals Court of Appeals

Page 74

58 Cal.Rptr. 74

249 Cal.App.2d 983

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Willard ROSTAMO, Defendant and Appellant.

Cr. No. 12685.

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

April 10, 1967.

Harvey Giss, Los Angeles, for appellant by appointment of the Court of appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

The trial court found defendant guilty of two counts of first degree robbery (§ 211, Pen.Code); he appeals from judgment and order denying motion for new trial. Appeal from the order is dismissed.

Around 10:30 p.m. Larry LaBaron, a member of the Reserve Police Department of Long Beach, armed with a loaded .38 six-inch Smith and Wesson, Model K revolver in his belt, left his apartment to search the premises. As he walked out defendant approached him from the rear and stuck a gun in his back. LaBaron turned around and faced defendant who was holding what 'looked like a small caliber weapon' and which LaBaron recognized as a 'lethal pistol.' He pointed at LaBaron's weapon and told him to drop it, which he did. Defendant then ordered LaBaron to raise his hands in the air and throw him his wallet. In the wallet defendant noticed several identification cards; LaBaron told him he was a Reserve Officer with the Police Department. Defendant then stuck one of the guns (LaBaron could not say if it was his or defendant's gun) into the waistband of his overalls. At that moment Robert Litzinger, who previously had twice seen defendant lurking on the premises and had called the police, came out of his apartment; at once he was confronted with defendant who was pointing 'a revolver in his right hand stuck over * * * the crotch of his left arm' at LaBaron who had his hands in the air; he saw a second gun tucked in the waistband of defendant's pants under his overalls. Defendant ordered Litzinger toward LaBaron and told him to throw him his billfold and empty his pockets, which he did; defendant ordered him back a couple of steps and picked up the wallet and change which Litzinger had put on a block wall and took $2 out of the wallet. He then told the two men to turn around and squat on their heels; later they again faced him, and defendant ordered them to turn their backs. He escaped just as a police vehicle arrived.

The defense consisted of an alibi and defendant's denial that he held up LaBaron or Litzinger or was anywhere near the vicinity.

The crime of robbery to be in the first degree must be perpetrated by torture 'or by a person being armed with a dangerous or deadly weapon, * * *' (§ 211a, Pen.Code.) Accordingly, the trial judge found defendant 'to have been armed with a deadly weapon in each offense alleged in Count(s) I and II' and fixed the robbery to be in the first degree. While the information alleged that at the time of the commission of each offense defendant was 'armed with a deadly weapon, to wit, a .22 cal. revolver,' the trial judge did not specify the gun he found to be the 'deadly weapon.'

Appellant's argument that the gun he held on the two men could not constitute a 'deadly weapon' is predicated on his claim that there is no evidence that the revolver was loaded.

When defendant held LaBaron and Litzinger at bay he had in his possession, on his person and readily available for his use, two guns--LaBaron's .38 Smith and Wesson and his own .22 caliber revolver. The record establishes without contradiction that LaBaron's gun was loaded; but there is no direct evidence concerning defendant's small caliber weapon. Inasmuch as the testimony of the two men does not contain a description of the gun defendant held on them, appellant's factual argument can only be based on his supposition that it was LaBaron's gun and not his own that he stuck into the waistband of his pants and that it was his .22 revolver that he pointed at the two men. LaBaron apparently could not say which gun defendant put in his waistband; he testified '* * * he (defendant) stuck in his--my gun, or he stuck in his gun--well, he stuck one of the weapons into something inside his clothing, into a waistband of some type.' While LaBaron described the gun with which defendant poked him in the rear before surrendering his own gun as looking 'like a small caliber weapon,' a 'lethal pistol,' neither victim described the gun defendant thereafter pointed at them. Assuming, therefore, that defendant held the two victims with his own gun, it is undisputed that during that time he also had on his person, stuck in the waistband of his pants, LaBaron's loaded .38 six-inch Smith and Wesson revolver.

LaBaron was the first to be robbed; the loot taken from him included his loaded revolver. However, the robbery of LaBaron did not end there. Obviously to make good his escape, it was necessary for defendant, after disarming LaBaron, to take his gun, thus, his getaway from the scene with LaBaron's loaded revolver was a continuation of LaBaron's holdup. (People v. Wallace, 36 Cal.App.2d 1, 4--5, 97 P.2d 256; People v. Perhab, 92 Cal.App.2d 430, 434--435, 206 P.2d 1133.) This means, then, that the two robberies were perpetrated by defendant while he had LaBaron's loaded revolver on his person. (People v. Hood, 160 Cal.App.2d 121, 122, 324 P.2d 656.) This made him 'armed' with a loaded gun at the time of the commission of the two offenses within the meaning of section 211a, Penal Code. (People v. Hall, 105 Cal.App. 359, 362, 287 P. 533.)

In People v. Wallace, 36 Cal.App.2d 1, 97 P.2d 256, the court rejected the argument that the only dangerous or deadly weapon figuring in the commission of the robbery was the weapon obtained as a part of the loot, and that such possession does not measure up to the requirements of section 211a, Penal Code; it held that 'thus armed while they 'perpetrated' the robbery, it matters not from what source they obtained the dangerous or deadly weapon in question.' The court continued at pages 4--5, 97 P.2d at pages 257--258: 'It is the law that the 'perpetration' of the crime of robbery is not completed the moment the stolen property is in the possession of the robbers. The escape of the robbers with their ill-gotten gains by means of arms is as important to the execution of the robbery as gaining possession of the property. * * * 'Robbery * * * includes, as does larceny, the element of asportation; and the appropriation of another's property at the scene of the hold-up is a transaction which continues after the perpetrators depart from the place where the property was seized. People v. Raucho, 8 Cal.App.2d 655, 664, 47 P.2d 1108; People v. Green, 93 Cal.App. 435, 436, 269 P. 687; People v. Melendrez, 25 Cal.App.2d 490, 494, 77 P.2d 870.

'* * *.le

'Neither the definition of robbery nor the specification of the degrees thereof contemplate that any fine distinctions shall be drawn for the benefit of highwaymen. * * * If at any time during the progress of the 'taking' or while the robbery is being 'perpetrated', the robber arms himself or becomes armed with a deadly weapon, he brings himself within the pale of section 211a of the Penal Code.'

Thus, in accomplishing the two robberies, defendant had in his possession, and on his person available for his use, LaBaron's loaded revolver. Assuming, then, that he pointed his own gun at the victims, the fact that he did not intentionally expose, display or use LaBaron's revolver in committing his criminal acts is not material; defendant nevertheless was 'armed' with a deadly weapon in prepetrating the offenses within the meaning of section 211a. (People v. Hall, 105 Cal.App. 359, 361, 287 P. 533; People v. Mack, 171 Cal.App.2d 631, 632, 341 P.2d 334; People v. Anderson, 236 Cal.App.2d 419, 431, 46 Cal.Rptr. 1.) "Armed' with a dangerous weapon means furnished or equipped with weapons of offense or defense. (Citation.) Section 211a of the Penal Code, which declares that 'all robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon, is robbery in the first degree,' does not require proof that there was an actual assault upon the person with a deadly weapon, but only that the accused was armed with a dangerous or deadly weapon. People v. Seawright, 72 Cal.App. 414, 237 P. 796.' (People v. Hall, 105 Cal.App. 359, 361--362, 287 P. 533; People v. Rainey, 125 Cal.App.2d 739, 741, 271 P.2d 144.) In People v. Mack, 171 Cal.App.2d 631, 341 P.2d 334, defendant robbed a liquor store owner who 'saw the handle of a gun protruding from the waistband of his trousers' (p. 632, 341 P.2d p. 335); this the court held was sufficient to show him 'armed' with a dangerous weapon. 'Nor must the defendant use or attempt to use the gun or even display it in order to be found guilty of armed robbery. 'Whether or not they expose these deadly weapons in order to carry out their criminal act is of no consequence. The fact that they had them in their possession available for immediate use is sufficient to bring the case within the statute. 'Armed' with a dangerous weapon means furnished or equipped with weapons of offense or defense.' (People v. Hall, 105 Cal.App. 359, 361, 287 P. 533; * * ' (People v. Anderson, 236 Cal.App.2d 419, 431, 46 Cal.Rptr. 1, 10.)

While the information charged defendant in both counts with being 'armed with a deadly weapon, to wit, a .22 cal. revolver,' the trial judge did not specify the gun he found to be the 'deadly weapon.' Inasmuch as the evidence fully supports the finding based upon defendant's possession of the loaded .38 revolver, we can assume in support of the judgment that the trial judge so found. Any variance between the allegation of the accusatory pleading and the proof arising out of this assumption could not be classified as material; it is slight and nonprejudicial. 'The test of the materiality of a...