People v. White

DORAN, J.

Defendants were charged by information with two offenses of robbery. The jury returned a verdict of guilty on both counts and this appeal is from the judgments thereafter entered.

Briefly, the evidence reveals that the defendants on the night of May 4th accosted one Robert Gordon and Jeanne Patrick, who were seated in a parked automobile on Riverside Drive, and robbed them, at the point of a gun; Gordon of his wallet which contained $7 and an identification badge worn by him as an employee of an aircraft company and Mrs. Patrick of a purse which contained nothing of value. Defendants then drove away in their own car, which had been parked back of and near the car occupied by the victims.

The next night, about 9:15 P. M., Kelly Walp, a patrolman on duty in the Palos Verdes Estates, saw the defendants in an automobile parked at the side of the road in Palos Verdes Hills. Upon questioning defendants and informing them that they were to be taken to the substation for further investigation, defendant White fled. Defendant Clark was arrested

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and taken to the substation. Walp returned to the scene of the arrest for defendants’ car, at which time a gun was found on the ground about three feet from the car. The badge, above referred to, was also found in the car as well as flashlights and goggles identified as similar to those used in the robbery. White was arrested the following morning in Long Beach on information furnished the officers by defendant Clark.

With regard to the appeal of defendant White, respondent moves for a dismissal under section 1253 of the Penal Code and Rule II, section 15, Rules of the Judicial Council for the Supreme Court and District Courts of Appeal. The record clearly discloses that such motion should be granted.

As to defendant Clark, it is argued, among other things, that the verdict is contrary to law and the evidence. In that connection it is contended that appellant is the victim of mistaken identity. It is also urged that the identification of the gun, flashlights and goggles found in the possession of defendants is insufficient. With regard to the latter, it is not necessary that such objects be positively identified. It is sufficient if they are recognized as similar or bear a sufficient resemblance to remove the elements of mere speculation or surmise. Nor need the identification of the defendant be positive. Appellants’ objections go to the weight rather than to the admissibility of such evidence.