People v. Pond

MUSSELL, J.

In count one of an information appellant was charged with the crime of burglary (Pen. Code, §459) of a house and building occupied by Jesse A. Hoyt at 419 Church Street, in Chula Vista. In counts two, three and four he was charged with the crime of robbery (Pen. Code, § 211) and it was alleged that on or about February 1, 1958, he did wilfully, unlawfully, feloniously and by means of force and fear and against the will of Jesse A. Hoyt, Fred L. Hoffa and H. A. Dunbar take from the persons, possession and immediate presence of said Jesse A. Hoyt, Fred L. Hoffa and H. A. Dunbar $4.00, lawful money of the United States of America, the personal property of said Jesse A. Hoyt; $15, lawful money of the United States of America, the personal property of said Fred L. Hoffa; and $78, lawful money of the United States, the personal property of said H. A. Dunbar. In count five he was charged with the crime of assault with a deadly weapon (Pen. Code, § 245) and it was alleged that on or about February 1, 1958, he assaulted said Jesse A. Hoyt with a deadly weapon.

Appellant was tried by the court without a jury and he was found guilty on all five counts. The court found the offense charged in the first count to be burglary in the first degree and that appellant was armed, and further found the crimes charged in counts two, three and four to be robbery in the first degree and that appellant was armed at the time of the commission of said crimes. Appellant’s motion for a new trial and his application for probation were denied and he was sentenced to the state prison for the term prescribed by law, the sentences to run consecutively with relation to counts two, three and four, and counts one and five to run concurrently with relation to each other and to counts two, three and four. Appellant appeals from the judgment and the order denying his motion for a new trial.

On February 1, 1958, Fred L. Hoffa, his wife, Mary, and their daughter, Helen, were invited to the home of Dorothy and Jesse Hoyt at 419 Church Street in Chula Vista for dinner that evening. They arrived at the Hoyt residence at 6 :15 p. m. and parked in the driveway beside the porch. Mr. Hoffa got out of the car and took some salad into the house. When Mrs. Hoffa started to get out she noticed appellant

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getting out of Ms car, wMch was parked in back of the Hoffa car. She spoke to him but he did not answer. He then approached Mrs. Hoffa, with his right hand in his trouser pocket, and told her to go into the house. She replied that her daughter (who was a polio victim) could not go in; that she could not walk. Whereupon, appellant said, “All of you go into the house and don’t make any noise.” At about this time Mr. Hoffa and Mr. and Mrs. Hoyt came out of the house and saw appellant and his car. Mr. Hoffa picked up his daughter, Helen, and carried her into the house. He was followed by his wife, the Hoyts and appellant, who ordered them to “proceed on into the house.” Mr. Hoffa carried his daughter into the front bedroom and put her on the bed. Appellant agreed that Mrs. Hoffa might stay with her. Whereupon, he closed the door and left them together. Mrs. Hoffa then climbed out of the window in the bedroom and ran to a nearby house, where she telephoned to the police. While appellant was accompanying the Hoffas into the bedroom, Mrs. Hoyt slipped out the back door of the house through the kitchen and went to a nearby house to use the telephone.