People v. De Falco

SHINN, P. J.

Dominick J. Christiano and Sandra Louise De Falco were charged in separate counts of an information with the violation of the Deadly Weapons Control Law (Pen. Code, §§ 12000-12030). In another count Mrs. De Falco was charged with violation of section 480 of the Vehicle Code. The charge against Christiano was that he was in possession of a .38 caliber revolver capable of being concealed upon the person, said firearm having a barrel less than 12 inches in length, and that he had been convicted of attempted robbery, a felony, in the State of New Jersey March 14, 1941. It was also alleged that he had been convicted of robbery in New Jersey April 19, 1933. At the inception of the trial Christiano personally admitted the conviction on March 14, 1941. He denied the alleged conviction on April 19, 1933. There was a severance of the trials.

In a jury trial Christiano was convicted as charged in Count 2 of the information. The court made no finding as to the alleged conviction of robbery on April 19, 1933. The motion of defendant for a new trial was denied, probation was denied and he was sentenced to spend nine months in jail. He appeals from the judgment (Pen. Code, § 1237) and from the order.

Sections 12001 and 12021 read as set out in the margin.

1

There was evidence of the following facts: between one and two in the morning the two defendants arrived in a car at a drive-in restaurant where some 25 or 30 persons were congregated. Mrs. De Falco was driving. In attempting to park she hit another car. An altercation ensued. Mrs. De Falco became extremely abusive. In starting to leave she

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bumped into a young man named David Rich, knocking him back. She refused to exhibit her operator’s license and drove away. In less than an hour she and Christiano appeared in another car which Mrs. De Falco parked. Another argument ensued in which Christiano took no part. The defendants again left and were followed by about six youths in a station wagon. They overtook the De Falco car at an intersection.

The evidence with respect to the weapon consisted of the testimony of Tim O’Bryan, David Hathaway and Walter Beck. O’Bryan testified that while defendants were at the restaurant the second time he stood by their car; he observed Christiano’s waistband; his coat was open and he had a weapon of some type that “looked like a gun”; all O’Bryan could see was the butt down to the cylinder. Shown a revolver with a 2-inch barrel he was asked whether the weapon he saw looked like the one shown him. He replied that the one he had seen was a darker color but that it was “approximately” similar to the one shown him; the “handle” was smaller. Beck testified that he was present at both appearances of the defendants. On the second occasion someone said “Well, he has got a gun.” When the De Falco ear left Beck joined the others in following it. When it was overtaken Mrs. De Falco reached for a gun, said “I am going to kill you all,” and pointed a gun at them “or downwards.” Questioned whether the gun he saw was like a .38 revolver shown to him he answered “From where I saw it, it looked just about like that.” He knew nothing about guns except what he had learned from watching television. David Hathaway testified that 'he was present on both occasions. On the second occasion he saw a gun stuck in Christiano’s belt; he saw the butt and part of the cylinder. He also was shown a .38 caliber gun and testified that the one he had seen in Christiano’s belt looked like the one shown him. He also followed the defendants when they left. When he pulled up alongside, Mrs. De Falco reached over, her hand went down and came up with a gun. It looked similar to the one he had seen in Christiano’s belt.