People v. Villarico, Cr. 3174

• Decision Date: 26 March 1956
• Docket Number: Cr. 3174
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. George VILLARICO, Appellant.

Page 76

295 P.2d 76

140 Cal.App.2d 233

The PEOPLE of the State of California, Respondent, v. George VILLARICO, Appellant.

Cr. 3174.

District Court of Appeal, First District, Division 2, California.

March 26, 1956.

George Villarico, in pro. per.

Edmund G. Brown, Atty. Gen., of California, Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

Appellant was found guilty by a jury of two felonies as stated in an information in two counts, to wit robbery committed on March 18, 1955, armed with a deadly weapon on a certain Lum, § 211, Penal Code, and assault with intent to commit robbery perpetrated on March 17, 1955 on a certain Romero. § 220, Penal Code. His motion for a new trial was denied and he was sentenced to San Quentin, the two sentences to run concurrently. He appeals in propria persona from the judgment and from the order denying his motion for a new trial.

Appellant complains that he was not brought to trial within 60 days after the information was filed in contravention of section 1382, subd. 2 of the Penal Code and Article I, section 13 of the State Constitution, the filing of the information having occurred on April 11, 1955 and the trial having commenced on June 20, 1955. However, the clerk's transcript shows that the trial was set for May 2, 1955 and thereupon continued 'by consent' from May 2 to May 23 and from May 23 to June 20. 'The defendant's consent to the postponement of his trial is equivalent to a postponement on his application and is sufficient cause for the delay.' In re Lopez, 39 Cal.2d 118, 120, 245 P.2d 1, 2. Moreover appellant did not move in the trial court for dismissal on the ground of the delay and thereby waived the benefit of the provisions he now relies on. People v. Hawkins, 127 Cal. 372, 374, 59 P. 697; People v. Scott, 74 Cal.App.2d 782, 784, 169 P.2d 970. Appellant's contention that he refrained from protesting the delay because of intimidation by police officers is not based on anything contained in the record. Facts outside the record, stated in briefs only, cannot be considered on appeal. People v. Croft, 134 Cal.App.2d 800, 803, 804, 286 P.2d 479.

Appellant's contention that he was arrested on a complaint charging him with assault with intent to do bodily harm to Romero and other unclear grievances relating to illegality of the commitment are equally unsupported by the record and any such objection to the information was waived because not taken in the trial court by motion to set aside the information, Penal Code, §§ 995, 996; People v. Thompson, 133 Cal.App.2d 4, 9, 284 P.2d 39.

Double jeopardy, repeatedly urged by appellant is not involved in this case. Appellant was not twice tried or punished for the same offense, but for two separate offenses of the same class by one information in accordance with section 954 of the Penal Code. (See People v. Finkel, 94 Cal.App.2d 813, 817, 211 P.2d 888.)

Appellant's several grievances, as to alleged failure to prove the corpus delicti, conviction on perjured evidence known to be false, and misconduct of prosecution, court and jury have no specific basis and amount to no more than a contention that the evidence does not support the verdict and judgment. They are without merit.

The evidence showed the following: In the morning of March 18, 1955 shortly after 9:30 a. m. two men separately entered Lum's shop and after they had busied themselves a few moments in the shop one, which Lum later identified as the defendant, drew a gun, said it was a stick up, and pushed Lum to the back room, where the other man tied him up. Defendant, who had gone back to the shop, where later the cash register proved to have been emptied, came back to Lum, searched him and took from $175 to $200 from his pockets, after which both men ran away. Lum pointed out a portrait of defendant in the police files as possibly the robber with the gun and at the trial positively identified him as such.

On March 17, 1955 Romero, who was having supper in the kitchen behind his store together with his wife, his daughter and his son-in-law Mikroulis, heard the store bell ring. When Romero went there a man threatened him with a gun and said, 'This is a stick up.' Romero pushed him and they struggled on the floor. Another man kicked Romero in the ribs. When the others from the kitchen came into the shop the man with the gun hit Romero two or three times over the head with it and both men backed out of the shop. Romero and Mikroulis followed them. Romero, who was wounded, had to give up soon. He could not identify his assailants. Mikroulis pursued the men further; the two went different ways. Mikroulis caught up with one of them, the defendant. The defendant refused to go back with him and ran off. Mikroulis the next day pointed out a portrait of defendant in the police files as very much like the man he followed and later he identified defendant positively in a police line-up and at the trial.

Defendant was arrested on March 25 in his home, a small apartment next to the garage in the basement of 518 Pennsylvania Avenue, San Francisco. At the time of the arrest police inspectors searched the apartment, the garage and defendant's car parked in front of the house, and found and seized rope and electric wire similar to that with which Lum had been bound. Both the rope and wire with which Lum had been bound and those found at the search were introduced in evidence and an expert testified as to their similarity and to the fact that examination of the ends showed that the two pieces of rope had once been one and also the pieces of wire.

Defendant denied all connection with the crimes and he and the woman with whom...