People v. Gullett

KINGSLEY, J.

Defendant was charged, jointly with Rickey Lee Latino, with armed robbery, in violation of section 211 of the Penal Code. After a trial, both defendants were found guilty of robbery in the second degree, the jury finding “not true” the allegation that they were armed at the time of the offense.

On this appeal, counsel urges several grounds for reversal. Since we find that the trial court erroneously rejected one piece of evidence, and since we think that rejection prejudicial and requiring a reversal, we need not discuss the other alleged errors, which involve matters not likely to occur on a retrial.

At approximately 7 p.m. on March 17, 1965, two men approached a well lit drive-in dairy. Mrs. Anderson, the clerk, walked outside and, after some conversation, the two men and Mrs. Anderson walked in. One man, later identified as defendant, lifted his shirt and Mrs. Anderson observed a gun handle sticking out of his pants. The man identified as defendant said: “Ma’am, you put all that pretty little old money in that sack and you push that button, and I don’t mean no alarm button, ma’am, nobody is going to get hurt.” A customer came but Mrs. Anderson followed Latino’s instructions to “get rid of those people.” A second customer, Frazier, a deputy district attorney, drove up, left and returned. Frazier chased the suspects as they ran to the car. Frazier later

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described the vehicle as dual colored, 1955 or 1957 Pontiac or Oldsmobile, license number OXW 458, with one color being a primer coat. Mrs. Anderson provided the investigating officer with the following descriptions: One person was a white male, about 24 years old, 5'7" tall, dark hair, small goatee. The second person, purportedly defendant, was described as being a white male, about 24 years old, 5'7" in height, sandy hair, speaking with a southern accent, wearing a dark checkered shirt, dark pants, possibly blue jeans. Later Mrs. Anderson testified that she did not report the height as 5,7," since she felt the suspects were more than 5'11". She recalled a slight beard but not a goatee, and she did not notice defendant’s rings or tattoos. Frazier could not identify the defendants in court. Mrs. Anderson recognized defendant in a lineup; he mumbled his words and she did not recognize his voice.