People v. Wallace

WHITE, J.

This is an appeal by defendants from orders denying their motions for new trial and from judgments pronounced against them after their pleas of guilty to the crime of robbery. The only point here involved is as to the degree of the robbery, and we are asked, pursuant to section 1181 of the Penal Code and upon the authority of

People

v.

Kelley,

208 Cal. 387 [281 Pac. 609], and

People

v.

Covington,

1 Cal. (2d) 316 [34 Pac. (2d) 1019], to reduce the robbery conviction to that of second degree.

Appellants pleaded guilty to the crime of robbery, and by appropriate waivers of jury submitted to the court for determination the question of the degree of the admitted offense. Thereupon the court took evidence, from which it appears that appellants robbed one Hugh Weir while he was acting as a service station attendant in the city of San Gabriel in Los Angeles County. The robbery was committed about 2 o’clock on the morning of March 4, 1939, when appellants came into the service station in an automobile and one of them asked the attendant, Weir, for five gallons of gasoline. The latter put the gasoline in the tank of appellants’ automo

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bile, and after some conversation between one of the appellants and Weir as to how to get to San Diego and what road to take, Weir received a dollar bill from one of the appellants in payment for the gasoline and went into the station to make change. The three appellants followed him into the station. When they were inside the station one of the appellants had his hand in his right hand coat pocket and said “All right, Doc, let’s have it.” Convinced that the three men were robbers, the complaining witness put up his hands and went to the back of the station which was about three feet from the cash register, while two of the appellants went over to the cash register. While the appellants were at the cash register one of them made the suggestion that the victim be searched, pursuant to which suggestion appellant Glover proceeded to and did search Weir, finding upon the latter’s person a 38-caliber revolver. Appellant Glover then asked the complaining witness what he was doing with the gun, and pulling the hammer back, said, “You see, it is cocked,” whereupon he pointed it at the head of the complaining witness for a fraction of a minute. About that time the other two appellants were through looting the cash drawer and were on their way out of the station. One of the appellants told the complaining witness to sit on the floor for twenty minutes. The sum of $13.08 constituted the fruits of the robbery.