People v. Berger

LILLIE, J.

Defendant Berger and codefendant Ruggiero were convicted by a jury of first degree robbery (Pen. Code, § 211); defendant was also found guilty of kidnaping for the purpose of robbery (Pen. Code, § 209). Previously he had admitted four prior felony convictions alleged in the information. Probation having been denied, he was sentenced to the state prison. Only defendant Berger appeals from the judgment.

[624]

Carl Arthur Dunston was employed at a North Hollywood service station during the month of May 1966. On May 14, shortly before 10 p.m. he was in the back room of the station changing his clothes. Hearing the station buzzer, he came out of the back to the front office and was confronted at the door by defendant pointing a gun at him. It was held in defendant’s right hand and appeared to be “a little .22.’’ A second man, Buggiero, was with him but Dunston could not state whether he had a gun. Defendant told him he wanted all of his money; Dunston thought he was joking and told him he didn’t have any money. When defendant said, “You better have some,” Dunston went up to the cash box, but he did not have his keys; defendant told him to get them. Dunston then walked to the back room for the keys; defendant followed immediately behind him, while Buggiero remained in the front office. When Dunston had secured the keys, they proceeded to the cash box outside the office in the island, and defendant told Dunston to open it up and ‘1 to act casual. ’ ’ Dunston opened the box and folded up the money, approximately $150, and defendant then said: “Let’s walk back inside.” Having done so, defendant told Dunston to give him the money; defendant folded it up, stuck it in his billfold and told Dunston to lie down for five minutes in the back room. Buggiero was present during this interval of time, about five minutes, but remained in the office building proper; “he didn’t say too much,” and defendant did most of the talking. When Dunston had lain down, at defendant’s instructions, the latter said: “Do you hear me?” Dunston said “Yes” and just lay there. When Dunston finally got up, both men had departed. Dunston then went back into the office to get a coin from his wallet to call the police; the wallet was missing; he had last seen it on the counter right where Buggiero had been standing; he ran across the street and called the police. Dunston identified the defendant, the “guy with the black hair,” and Buggiero, he having twice previously seen both parties together at a certain tavern (Lil’s Bar). Three days later, May 17, Dunston saw defendant and Buggiero at Lil’s Bar. The police were summoned, but the men had left. On May 27, they were arrested in Montebello at a private residence. Defendant was attempting to leave by a bathroom window; Buggiero was found standing in a bedroom behind an open door with the lights out.