People v. Valdez

SHINN, Acting P. J.

Reyes Valdez and Lloyd Noriega were convicted in a nonjury trial of robbery while armed with a deadly weapon, and kidnapping for the purpose of robbery while armed with a deadly weapon; they were acquitted of grand theft of the property which was the subject of the robbery. Bach defendant was charged with and admitted having been previously convicted of a felony and having served a term of imprisonment in the state prison. They appeal from the judgments and from orders denying their motions for a new trial.

The evidence introduced at the preliminary examination at which defendants testified fully was received at the trial and defendants introduced certain additional evidence, including brief testimony given by themselves. This procedure was adopted by stipulation, joined in by defendants and their attorney. Certain facts were established by the testimony of defendants and that of other witnesses. At about 2 p. m., November 18, 1946, one McLemore, a colored boy, was driving a truck loaded with 135 sacks of walnuts belonging to his employer, L. A. Nut House; when he stopped for a signal at Washington Street his truck was boarded by Noriega and another man, the truck with its load was taken to the plant of California Celery Growers, a wholesale produce firm composed of Pete Regas and John Abadjian. Before the arrival of the truck defendant Valdez had arranged with Regas for the sale of a load of walnuts to the firm; Regas was not present when the truck arrived but the walnuts were unloaded and stored; Valdez returned the following day and was paid for the walnuts, in cash, by Abadjian; the money, $2,650, according to Abadjian and Regas, and $1,350, according to Valdez, was divided between Valdez and Noriega. The evidence was conflicting as to whether others participated in the division. Noriega testified at the preliminary that he was alone when he entered the truck, that he asked McLemore for a ride, which was granted, that he proposed

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to McLemore that the truck and load would be turned over to him, the walnuts would be sold, that McLemore would receive $200, and that McLemore agreed to the arrangement; that the truck was driven to Ninth and Alameda where Noriega telephoned to Valdez, asking him to arrange a sale of the walnuts, that Valdez asked him to call back in a few minutes which he did; that Valdez directed him to drive to California Celery Growers, that he did so, met Valdez there and the nuts were delivered. Valdez testified to the same effect. He was acquainted with Regas and Abadjian; Noriega was not. He testified that he did not participate in taking the walnuts or have any knowledge of the circumstances' until Noriega asked him to arrange a sale of them, but understood that they were “hot” and told Regas they were. In short, Noriega admitted the theft of the walnuts but denied the robbery and kidnapping and Valdez denied all connection with the transaction except the receipt of the stolen property and its sale for $1,350’. The testimony of defendants was contradicted by confessions which they made to police officers and by the testimony of other witnesses. McLemore testified that Noriega entered his truck from the left side, held a gun on him, an automatic, that another man entered and sat at McLemore’s right, that he was told to keep his eyes closed and did so; that the truck was driven for a number of blocks when he was transferred to the rear seat of a coupe with Noriega and another man; that he heard the truck leave and heard one man refer to another as “papa”; that all the conversation was in Spanish which he did not understand, although threats were uttered which he did understand; that he was driven to another location where he was taken from the car, placed on a hard seat for some twenty minutes, replaced in the car and driven to a point near his home, where he arrived at about 5 p. m. He testified that he was threatened and in fear, that he kept his eyes closed as ordered; that his head was covered with a cloth while he was in the car, and that when he opened his eyes in being transferred to the car he looked only at Noriega. He denied that he consented to the theft or received any money. Regas testified that on the Thursday preceding the Monday when the crime was committed, Valdez negotiated with him for the sale of a load of walnuts, first asking $30 per hundred pounds; that he refused to pay that price; that Valdez came again the