People v. Deas

Opinion

KINGSLEY, J.

Defendant was charged, jointly with Anthony Payton,

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in a five-count information. Counts I, II and V concerned Payton only; counts III and IV charged both defendants with violations of section 211 of the Penal Code (robbery) and alleged that defendant was armed with a deadly weapon at the time of each offense and that he had used that weapon at the time of' commission of each offense. After a jury trial, defendant was found guilty of robbery in the first degree on each of the two counts in which he was involved. The jury found the armed allegations in

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count III to be true but the allegations in count IV to be untrue. Motions; for a new trial and for probation were denied. The court found, as to count III, with reference to the “armed” allegations, as follows: “. . . the Court now orders that finding limited to and within the meaning of Section 1203 Penal Code only, and further that Section 3024 and 12022 of the Penal Code are not applicable to the finding that the defendant was so armed, however, the finding of the Jury that defendant used a fire arm, to wit a pistol at time of commission of offense alleged in Count 3 is found by Court to fall under and that provision of Section 12022.5 of Penal Code are applicable with respect to Count 3;” Although it was admitted that defendant had a narcotic problem,

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the trial court refused to institute proceedings under the Narcotic Rehabilitation Act. Defendant was sentenced to state prison, the sentences on the two counts to run concurrently. He has appealed; we affirm.

The contentions made to us are without merit:

(1) Whether or not to exclude the victim in one count while the victim in the other count testified was a matter within the discretion of the trial court. The two offenses were entirely separate in their commission. The argument that one victim might be influenced by the other’s testimony is unimpressive and is not borne out by the actual record.

(2) The trial court correctly ruled that one victim’s testimony at the preliminary , examination did not contradict his trial testimony and, therefore was not impeaching.