People v. Garcia

WOOD (Fred B.), J.

Convicted of armed robbery (Pen. Code, § 211), defendant Garcia claims that prejudicial errors occurred in instructing the jury.

Late one evening three men entered and robbed a certain liquor store. They then left, got into a ear and drove away. The car, soon apprehended, had four occupants: Raul Altamirano, Frank Espinoza, Robert Gonzales and defendant Garcia.

The sales clerk at the store was unable to identify Garcia as one of the three who entered the store. He identified Altamirano only. Espinoza testified that the three consisted of himself, Altamirano and Gonzales. He said that Garcia was in the car. Thereupon the prosecution, claiming surprise, confronted Espinoza with testimony he had given at a former trial, that Garcia entered the store and Gonzales remained in the car, and a like statement he had given the police shortly

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after his apprehension. He admitted making the prior inconsistent statements and insisted he was lying then to protect his friend Gonzales but was telling the truth now. Garcia made no admissions and did not take the witness stand.

There was evidence tending to prove that Garcia was intoxicated at the time of the robbery. His brother and sister-in-law testified he had been drinking on the day of the robbery and was drunk about four or five hours before the robbery. Two of the officers testified they smelled the odor of alcohol on Garcia’s breath. Another officer testified he gave Garcia some support when he led him to the jail; that Garcia “acted like he had passed out” when questioned after his apprehension ; “he would sit there and kind of fall over in his chair and wouldn’t answer your question”; it appeared to the witness as if it were an “act.” Garcia was put in the “drunk tank. ’ ’

(1)

Was it prejudicial error for the court to reject defendant’s request to give certain instructions on circumstantial evidence?

Defendant requested and the court refused three instructions on circumstantial evidence, couched in the terms of CAL JIG Numbers 26, 27, and 28, respectively. These instructions, particularly Number 27,

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