People v. Kelly

VAN DYKE, P. J.

After trial by the court without a jury appellant was found guilty of robbery in the first degree.

On the evening of April 29, 1958, three people were in a restaurant in Sacramento County. They were Mrs. Del Monieo, who was the cook and a coowner of the restaurant, Scharleene Spencer, a waitress, and Fred T. Young, a customer. Appellant was charged separately with robbing the three. At the conclusion of the trial and on motion of the district attorney, the trial court dismissed the counts charging robbery of the waitress and the customer. The court found appellant guilty of robbing Mrs. Del Monieo.

There was evidence that at about 7 p. m. Mrs. Del Monieo admitted Fred Young to the restaurant and then locked the door. She returned to the kitchen to prepare food for him. Within minutes thereafter Mrs. Spencer saw appellant standing by the door. She walked over and opened the door to inform him the restaurant was closed. He displayed a .45 caliber automatic pistol and pushed his way in. Mrs. Spencer

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screamed, whereupon appellant told her to shut up and sit down. He then entered the kitchen, grabbed Mrs. Del Monieo’s wrist, and twisted it, and told her to open the cash register. She did so and gave to appellant the cash contents amounting to about $50. Appellant then turned to Mrs. Spencer and took from her $2.00 she carried in a purse. He then turned to Young and took from him his wallet, extracted therefrom $12 and before leaving gave the wallet to Young. He ordered the three to lie down on the floor and to remain there for three minutes, failing which he would shoot. He left the restaurant. Mrs. Del Monieo immediately notified peace officers who started a search. Appellant was arrested about four and a half hours thereafter. He was found lying on his stomach on some boards by a pumphouse located at the rear of a house on Cypress Street. When discovered he was lying with his right hand under him, his left hand stretched out in front. A search of the place where he was lying disclosed, under the boards, a .45 automatic pistol that was cocked and loaded. It had one shell in the chamber and two shells in the clip. Appellant was positively identified by all three of his victims. It is obvious that the evidence was sufficient to sustain the conviction that he had robbed Mrs. Del Monieo.