People v. Romero

DORAN, J.

Appellant and one Amadeo Romero were jointly charged by an information in two counts with the crimes of robbery and attempted sodomy. Appellant alone was brought to trial, before a jury, and was convicted of robbery in the second degree and of attempted sodomy. This appeal is prosecuted from the judgment, the order denying appellant’s motion for a new trial, and the order of the court refusing to certify appellant to the Youth Authority, pursuant to the provisions of division 2.5, chapter I, of the Welfare and Institutions Code (Stats. 1941, ch. 937, p. 2522), now known generally as the Youth Authority Act (Stats. 1943, ch. 690, p. 2442). Appellant herein was convicted prior to the effective date of the amendments to the act in 1943. It is contended that the evidence is insufficient to support the judgment of conviction; that the court erred in admitting and rejecting certain testimony, and in failing to instruct the jury as requested by appellant, and in refusing to certify the appellant to the Youth Authority.

Appellant was one of a party of youths who, on or about November 26, 1942, had joined the complaining witness, one

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Walter E. Babb, at a cafe in Azusa, in the county of Los Angeles, later riding about Azusa with the complaining witness in an automobile. According to the testimony of complainant, the youths, While riding in the car, attacked bim, dragged him out of the car, robbed him and attempted sodomy upon his person. There was evidence that the group had engaged in drinking, and that the complaining witness was intoxicated. In his opening brief appellant states: “Were it not for the fact that this complainant told several contradictory stories, both to the officers and while under oath, respecting his whereabouts, his sojourns through the beer parlors and restaurants of San Gabriel Valley, his sobriety, the liquor consumed by him and the conclusiveness of the defendants’ evidence rebutting this "witness’s story about the money which he claims was taken from him appellant would not seriously urge this point, being mindful that the jury was the sole judge of the credibility of the witness, as was the court sitting as a thirteenth juror on the motion for a new trial.” The record does not reveal the evidence presented by the defense to be in any respect conclusive; and, although appellant has engaged in an extensive discussion of the testimony of the complaining witness, nevertheless, no sound basis for urging the insufficiency of the evidence is demonstrated. Appellant’s argument, upon the record presented, merely reveals the evidence to be conflicting, as between the testimony of the complaining witness and that for the defense, and the question of the credibility of the witnesses to be clearly one for the jury and the trial court. There is no merit in the claim that the evidence was not sufficient to support the judgment.