People v. Zurica

• Decision Date: 19 February 1964
• Docket Number: Cr. 8922
• Citation: 225 Cal.App.2d 25,37 Cal.Rptr. 118
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony Frank ZURICA, Michael Anthony Rizzitello and Louis Castigiione, Defendants and Appellants.

Page 118

37 Cal.Rptr. 118

225 Cal.App.2d 25

The PEOPLE, Plaintiff and Respondent, v. Anthony Frank ZURICA, Michael Anthony Rizzitello and Louis Castigiione, Defendants and Appellants.

Cr. 8922.

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

Feb. 19, 1964.

Rehearing Denied March 10, 1964.

Hearing Denied April 15, 1964.

Morris Lavine, Los Angeles, for defendants and appellants Rizzitello and Castiglione.

Howard Meyerson, Los Angeles, for defendant and appellant Zurica.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

This is an appeal from judgments of conviction and sentence for robbery and kidnapping for the purpose of robbery.

In two separate informations nine counts were alleged charging defendants Zurica, Rizzitello and Castiglione with robbery and kidnapping for the purpose of robbery. The informations were subsequently consolidated and tried before a single jury. Zurica was found guilty of one count of robbery and three counts of kidnapping for the purpose of robbery (Counts IV through VII of the consolidated information). The robbery offense (Count IV) was found to be in the first degree. Castiglione and Rizzitello were each found guilty of three counts of robbery and three counts of kidnapping for purpose of robbery (Counts IV through IX). The robbery counts (Counts IV, VIII and IX) were also found to be robbery in the first degree.

Motions for new trial and probation were denied as to each defendant. The court on its own motion dismissed one count as to each defendant of kidnapping for the purpose of robbery (Count V), and each was sentenced to the state prison for the term prescribed by law, sentences on counts to run concurrently with one another.

The convictions stemmed from offenses which allegedly occurred at two cocktail bars located in the city of Los Angeles--the Fog Cutters bar and the Losers Club. Only defendants Castiglione and Rizzitello were involved in the Fog Cutters incident, from which both sustained convictions for robbery as alleged in Counts VIII and IX of the consolidated information.

The evidence as to these counts shows that, on June 21, 1961, at approximately 1:30 a. m., Castiglione and Rizzitello entered the bar at the Fog Cutters restaurant. After having a drink, each produced a gun and demanded money. Francis Mullin, a bartender, Bruce Guerin, a piano player, and a waitress, Dolly Black, were the only persons in the bar at the time. Mullin was forced to turn over approximately $600 in bills which he took from the cash register (the robbery charged in Count VIII). A money clip valued at $600, with an undetermined amount of money in it, was taken from Guerin (Count IX).

All three defendants were charged with and convicted of robbery and kidnapping for the purpose of robbery (Counts IV through VII), for their participation in a holdup at the Losers Club bar. Because defendants challenge the sufficiency of the evidence to support their convictions of these charges (Counts IV through VII), a summary of the evidence is called for.

Don Holland (since deceased), an entertainer and musician at the Losers Club, was standing outside the front door of the club near its closing time at about 2:00 a. m., on April 17, 1962. With him were Stanford Orling, the owner of the club, and Charles Stapleton, the parking lot attendant. Defendant Rizzitello came up behind them, 'stuck a gun in the back of our heads,' and ordered them to go back inside the club. After they were inside Rizzitello put them against a wall, then made them lie face down on the floor. Rizzitello asked for the manager, and, when Orling responded, escorted the latter to his office. There were two other persons with Rizzitello. Holland recognized one of them to be defendant Castiglione. When they returned from Orling's office everyone was told not to move for fifteen minutes; that if they put their heads out of the door 'we will blow your heads off.'

Stapleton recalled that on April 17, 1962, he was standing in front of the club with Orling and Holland, just prior to its closing, when defendant Zurica flashed a gun and asked them to go inside, saying, they were 'going to have a party.' The gun appeared to be a Luger automatic. They along with about 15 other persons, who were in the bar at the time, were told to lie on the floor. Stapleton heard someone ask for the manager and saw Orling go into his office with another person. Thereafter, someone came out of the office and said they were to lie on the floor for five minutes and were not to call the police.

Orling recalled standing in front of his club in the company of Holland and Stapleton when someone came up from behind him and said it was a holdup. He did not see the person but only the barrel of the gun the person was holding. After being made to lie on the floor someone asked for the manager. This person asked if there was a safe. Orling replied that there was a safe in his office. A man resembling defendant Rizzitello stood near the doorway to his office. The man had a gun in his hand resembling a German Luger. While Orling opened the safe the man resembling Rizzitello stood behind him, gun in hand. Orling turned over between approximately $150 to $200 to this man. Orling recalled that in size the man was as large or larger than he. Orling was six feet, one inch in height.

Ralph Anderson, a taxicab driver, went to the Losers Club at about five minutes to 2:00 a. m. April 17, 1962, for the purpose of picking up a fare. After he entered the place a man whom he was not able to recognize touched him on the arm and told him to lie on the floor. The man carried a gun which resembled an Army .45. The man was about two or three inches shorter than Anderson who was five feet, ten inches. (Zurica, by his own testimony was five feet, 6-1/2 inches in height; Rizzitello was about six feet, and Castiglione five feet, 9-1/2 inches.)

Defendants Rizzitello and Castiglione were arrested on April 30, 1962. On the evening of April 30, Orling had spotted Rizzitello in the Losers Club and, when he left, Orling's partner called the police. At approximately 10:45 p. m. the same evening Officer Caracilo had observed Castiglione driving an automobile in which Rizzitello and another person were seated. The car was stopped and a search of it disclosed a loaded .32 caliber revolver in the glove compartment. Rizzitello stated that the automobile was his but that it was registered to his wife. He denied however, that the gun was his. At the police station he again denied that he owned the gun, saying that he knew nothing about it; that he had his car worked on in a gas station and 'may be that is how it got in.'

Defendants each took the stand and denied committing any of the offenses or being in the establishments at the time of the offenses. A defense witness testified that he was at the Losers when it was robbed. He had a 'fair look at the three' participants and defendants were 'not the ones.'

In contending that the evidence is insufficient to support the judgments on Counts IV through VII, defendants point to apparent inconsistencies in identification by the prosecution witnesses. The rule however is clear that the strength or weakness of an identification, any incompatibility of or discrepancies in testimony, or uncertainties of witnesses in giving their testimony, are matters solely in the first instance for the jury, and for the trial court on a motion for new trial; that unless it can be said as a matter of law there was no evidence to support a conviction we may not disturb the judgment. (People v. Shaheen, 120 Cal.App.2d 629, 636-637, 261 P.2d 752.) And, that portion of a witness' testimony which supports the judgment must of events different victims at the Losers tend to defeat it. (People v. Thomas, 103 Cal.App.2d 669, 672, 229 P.2d 836.)

In the instant case the jury might reasonably have found that under the stress of events different victims at the Losers Club perceived and retained different impressions of the participants in the crimes and of their roles, but the jury nevertheless may still have concluded that all three defendants were involved. We conclude that there was ample evidence to support the jury's verdicts.

Defendants contend that the trial court abused its discretion in consolidating cases for trial with different transactions and defendants involved in the various counts. The record reflects the absence of any objection either at the time the cases were consolidated for trial or thereafter on the day of trial when a motion by the People to consolidate was granted. ¹ It is well established that defendants may not object for the first time on appeal to a misjoinder of counts or consolidation of cases. (People v. Sourisseau, 62 Cal.App.2d 917, 926, 145 P.2d 916; People v. Kemp, 55 Cal.2d 458, 474, 11 Cal.Rptr. 361, 371, 359 P.2d 913, 923.) Moreover, defendants have failed to show wherein they were prejudiced by the consolidation. 'A bald assertion of prejudice is not enough. [Citations.]' (People v. Kemp, supra, 55 Cal.2d 458, 477, 11 Cal.Rptr. 361, 371, 359 P.2d 913 and, quoted in People v. Pike, 58 Cal.2d 70, 85, 22 Cal.Rptr. 664, 372 P.2d 656.)

Defendants contend the trial court erred in imposing multiple punishments. It is asserted that defendants should not be punished both for the robbery at the Losers Club and for kidnapping for the purpose of robbery with respect to victims Holland and Stapleton. (As to victim Orling, defendants were sentenced on the robbery count and the kidnapping count was dismissed.) Since nothing was taken from either Holland or Stapleton, it is argued that the only finding that could reasonably be made would be that the alleged kidnapping was at part of a single course of criminal conduct, namely, the consummation of the robbery at the Losers Club, and that, at the most, defendants should be punished only for robbery.

Defendants...