People v. Snyder

• Decision Date: 29 September 1969
• Docket Number: Cr. 14912
• Citation: 80 Cal.Rptr. 822,276 Cal.App.2d 520
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerald A. SNYDER, Defendant and Appellant.

Page 822

80 Cal.Rptr. 822

276 Cal.App.2d 520

The PEOPLE, Plaintiff and Respondent, v. Gerald A. SNYDER, Defendant and Appellant.

Cr. 14912.

Court of Appeal, Second District, Division 4, California.

Sept. 29, 1969.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Gen., and Arnold Lieman, Deputy Atty. Gen., for plaintiff and respondent.

Eugene J. Axelrod, Pomona, under appointment by the Court of Appeal, for defendant and appellant.

JEFFERSON, Associate Justice.

Defendant appeals from the judgment entered upon his conviction in a jury trial of two counts of armed robbery.

On January 16, 1967, at about 12:30 a.m. defendant and a companion entered the Tropical Inn bar which was then unoccupied except for the bartender. After ordering beers defendant's companion pointed a pistol at the bartender, informed him 'this is a holdup' and ordered him to open the cash register. He complied and defendant removed all of the money in it including the samall change. Defendant then took the bartender's wallet and, after smashing the telephone on the bartop, the two men left.

On January 18, 1967, at about 11 p.m. defendant and another man walked into the Speede Mart grocery store. The man with defendant pulled out a gun and ordered the owner, who was then alone in the store, to open the cash register. Defendant scooped up all of the money and they then walked out.

An ablibi defense was presented. Defendant's sister indicated defendant was in the Showboat restaurant where she worked on the night of January 16--17. She remembered that particular night because she was working the evening shift for the regular girl who was in the hospital. Defendant's brother-in-law related that defendant bailed him out of the Bakersfied county jail on the evening of Junuary 18.

In rebuttal, the owner of the Showboat testified that his records show the regular evening girl was working on January 16. The girl referred to testified that she was not in the hospital the month of January.

Defendant questions the sufficiency of the evidence arguing that the testimony of the victims contains discrepancies and inconsistencies. It was the province of the jury to pass upon the credibility of the witnesses and to determine the weight to be given to their testimony. In performing this duty, it was the function of the jury to resolve any conflicts or inconsistencies. (People v. Martinez, 206 Cal.App.2d 809, 813, 23 Cal.Rptr. 897.) An appellate court is not permitted to reweigh the evidence but must view it in the light most favorable to the prevailing party, and the judgment must be affirmed if there is substantial evidence in the record to support it. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) Defendant was positively identified by each victim. Each remembered that he had a distinctive facial feature, a 'hook nose.' The testimony of the victims provides overwhelming evidentiary support for the judgment.

Defendant maintains that he was denied his right to a speedy trial because he was not brought to trial within 60 days after the information was filed, as required by Penal Code, section 1382. The information was filed on September 5, 1967. At defendant's arraignment the case was set for trial on November 1, 1967. The minutes of that date state: 'Cause is called for trial. Defendant refuses to waive time. On motion of defendant's counsel, continued to Nov. 6, 1967 at 9:00 a.m., for trial, counsel requiring additional time for preparation.' The trial commenced on November 6. Defendant argues that he is entitled to invoke section 1382 since the case was not tried until 62 days after the filing of the information, and the record shows that, although his counsel asked for the continuance beyond the 60 day limit, he personally refused to waive time.

Penal Code, section 1382 provides that, unless good cause to the contrary is shown, a defendant must be brought to trial within 60 days after the filing of the information. (People v. Katzman, 258 Cal.App.2d 777, 788, 66 Cal.Rptr. 319.) Good cause for the short delay was shown here. Defendant's counsel, a deputy public defender, needed additional time to prepare the case. Under the circumstances, the trial court did not abuse its discretion in granting counsel's request despite the protest of his client.

In any event, defendant has not indicated how he was prejudiced by having his trial delayed two days past the statutory limit. Such a showing is required. (People v. Wilson, 60 Cal.2d 139, 152, 32 Cal.Rptr. 44, 383 P.2d 452.) Furthermore, defendant is not in a position to urge the point since he did not make a motion to dismiss urging this ground. 'The right to a speedy trial * * * will be deemed waived unless the defendant Both objects to the date set And thereafter files a timely motion to dismiss.' (People v. Wilson, Supra, at p. 146, 32 Cal.Rptr. at p. 49, 383 P.2d at p. 457.)

Defendant contends that the court erred in failing to instruct the jury on the 'obvious dangers' presented by eyewitness identification. As part of the instructions given, the jury was instructed that it was the sole judge of the credibility of the witnesses; that in determining the credibility of a witness, it may consider '(c) the extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies,' and '(d) the extent of his opportunity to perceive any matter about which he testifies. * * *' No additional instructions on the subject were called for.

Defendant complains that the jury should have received an admonition to disregard hearsay evidence introduced concerning his apprehension in the State of Pennsylvania with credit cards of one of the victims. On cross-examination defense counsel elicited from one of the victims that he had been told by the police that two men, one of whom was later identified as defendant, had been picked up in Pennsylvania a few days after the robbery. On redirect examination, the district attorney further questioned the witness about what he had heard about defendant's apprehension, stating 'You say you already knew or had learned that the defendant had been picked up in Penn.?' The witness answered: 'The Torrance police came to the house and wanted to know why, or how my credit cards--' Defense counsel objected before the witness could complete his answer. A motion to strike the answer was granted by the court. No request for any admonition was made and the matter was dropped.

As indicated above, the record shows that it was the defense which initially elicited the hearsay testimony about defendant's apprehension. Thereafter, when the district attorney sought to further explore the matter, the witness volunteered the comment about the credit cards. Defendant's trial counsel apparently did not believe any admonition was called for, since he did not request one. Under the circumstances, defendant is not in a position to complain that an admonition should have been given.

Defendant contends that evidence of other crimes was improperly admitted. The following background facts are pertinent: After the testimony of the victims, the prosecution called a third witness. He related that on January 21, 1967 (a few days following the two robberies charged) two men entered his liquor store at about 11 p.m. No one else was in the store at the time. One of them pulled a gun and told him to open the cash register. He following this order and one of the men removed the money. They then told him to give them some cigarettes and a bottle of 'booze.' He did as directed and they then left. He subsequently identified defendant from a photograph as the man with the gun. This evidence was offered on the issue of identification and to show a common scheme, plan or modus operandi. It was admitted over defense...