People v. Brewster

a jury conviction of first degree robbery. (Pen. Code, §§ 211 & 211a.) Defendant was also charged with being, and found to have been, armed with a deadly weapon at the time of commission of the offense within the meaning of Penal Code sections 969c and 3024. We reject defendant’s contention that the jury was inadequately instructed. We hold, however, that the case must be returned for further findings by the court regarding punishment and defendant’s eligibility for probation.

At approximately 9:30 p.m. May 2, 1968, defendant was identified as the person who held up a small grocery store and stole $750. Identity was by three eyewitnesses including the proprietor and his son, both of whom knew defendant as a daily customer of the store. Defendant was also identified by a defense witness who, although he had failed positively to identify defendant in a lineup, did identify him at the trial. All of these witnesses testified defendant was armed with a double-barrel derringer. The defense witness referred to above testified he had seen defendant load the gun.

Defendant did not testify. In an extrajudicial statement he had claimed an alibi. He said he had spent the entire evening and until 2 a.m. the following morning a.t the home of a woman acquaintance. She was not called as a witness. Defendant called a service station operator as a to establish a different alibi. The witness was of no assistance to defendant. He testified defendant had left the service station not later than 9 p.m. the night of the robbery.

The court correctly instructed the jury that “Robbery is the felonious taking of personal property of any value in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

1

The jury was also instructed correctly that “Robbery which is perpetrated ... by a person being armed with a dangerous or deadly weapon is robbery in the first degree.” (Pen. Code, § 211a.) The jury was told that if it found defendant guilty it was its duty to determine the degree in its verdict. (Pen. Code, § 1157.)

2

It was instructed that “A dangerous or deadly weapon means any weapon, instrument or

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object that is capable of being used to inflict death or great bodily injury” and that it was not necessary that the weapon actually be used.