People v. Higgins

[773]

Opinion

KINGSLEY, J.

Case No. A-238196

In 1969, defendant Higgins was convicted of a violation of subdivision (b) of section 452 of the Penal Code. Proceedings were suspended and he was granted probation for five years. In 1971, as the result of his conviction in case No. A-0648.07, probation was revoked and he was sentenced to state prison, the sentence to run consecutively with that imposed in case No. A-064807.

He has appealed; we affirm. Although, as we point out below, we modify the judgment on one count in case No. A-064807, there is no reason to believe that that modification would cause any judge to do other than revoke probation and impose the sentence now before us.

Case No. A-064807

Defendant was charged, jointly with James E. Portland, Jr., with two counts of robbery; the information charged the use of a pistol in the commission of the robberies. After a jury trial, both men were found guilty of robbery in the first degree, the allegation as to .use of a pistol being found to be true. Defendant Higgins was sentenced to state prison, the sentence on the two counts to run concurrently, but consecutively with the sentence in case No. A-238196. He has appealed; we modify the judgment and affirm it as modified.

At about 1:30 p.m. on October 25, 1971, three Negro men, in a white Cadillac, drove into a parking lot on Sunset Boulevard; they sought and received permission to park the car there for five minutes. Two of them exited the car and walked in an easterly direction on Sunset; about ten minutes later the two men returned, “trotting,” entered the Cadillac and the car drove off. The Cadillac belonged to codefendant Portland’s father and one of the two men wore a jump suit similar to one admittedly owned by Portland,

At about the same time, two Negro men entered a shoe store on Sunset east of the parking lot. One of them was identified as Portland and Portland was wearing a jump suit.

Two young women were clerks in the store. One, Paula, approached Portland, whom she recognized as a former customer. Portland asked her to change a dollar bill, and she went to the cash register for that purpose. In the meantime, the other clerk, Carolyn, had been approached by the