People v. Rudolph

THE COURT.

By one information James Monroe Rudolph was accused of assault with intent to commit murder, a second offense of burglary and a third offense of robbery, consisting of taking from the immediate presence of George C. Peterzon and James Stokes certain keys, by means of force and fear. By separate information, he was accused of grand theft. In each information he was accused of having served terms in prison after conviction of robbery, false imprisonment and kidnaping for the purpose of robbery and for a separate offense of robbery. The two informations were consolidated for trial. Defendant pleaded not guilty and admitted having served a term in prison for robbery, false imprisonment and kidnaping for the purpose of robbery and a separate term after conviction of robbery. In a jury trial defendant was represented by the public defender. By separate verdicts defendant was found guilty of assault with a deadly weapon, burglary and robbery and it was found that at the time of the burglary and at the time of the robbery defendant was armed. He made a motion for new trial, which was granted with respect to the conviction of burglary and denied as to the convictions of assault with a deadly weapon and robbery. The count charging burglary was dismissed. In propria persona, defendant appealed from the judgment and the order denying his motion for a new trial. He applied for appointment of counsel on the appeal; we denied the application after reading the record and determining that the appeal is groundless as to one conviction and clearly meritorious as to the other, as will hereinafter appear. Defendant was given notice, and time to file a brief and has filed none.

We have examined the instructions that were given and those that were refused and find that the jury was correctly and adequately instructed. In reply to our inquiry of the deputy public defender who represented defendant, we have been advised that there were no improper statements made by the district attorney in arguments to the jury.

There was evidence of the following facts. On December 5, 1960, the Scandia Restaurant at 9040 Sunset Boulevard in Los Angeles, was closed for business. At about 2:15 p. m., George C. Peterzon, executive chef, entered the restaurant

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through a cellar door and admitted another employee, James Stokes, a pot washer. They went into Peterzon’s office. Both Peterzon and Stokes testified that they observed a man coming down the stairway toward the office. The man was wearing a hat and his face was partly covered by a handkerchief. When he was about 10 feet away from them he pointed a gun at them. Peterzon stopped back into the office and closed the door. Stokes testified that the man told Peterzon to open the door or he would shoot him (Stokes) ; Peterzon opened the door and Stokes stepped inside; Peterzon asked, “What do you want?” and the man said “Stay still or I will shoot,” whereupon he fired a shot. He ordered them to lie on the floor and they both lay face down. The man asked where the safe was and was told there was no safe in the office; he asked where the money was, saying, “There got to be some money around here”; he was told that the money was banked every night. The man looked around, pulled cabinets open, and pulled loose the telephone wires; he found some keys which he handled. He disappeared up the stairs, but returned soon and looked around some more, after which he left and did not return. After waiting some time, Peterzon and Stokes got off the floor. Peterzon then observed for the first time blood on his clothing and discovered that he had been shot in the leg. Peterzon got into his car and drove to the sheriff’s office.