People v. Moller

California Court of Appeal Jan 25, 1960 No. Crim. 3602Published

Before: Dooling

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Holding. The court held that the evidence was sufficient to support the defendant's convictions for robbery, assault, and narcotics possession as a joint participant, and that the trial court did not abuse its discretion in denying a separate trial.

Issues

Whether the evidence was sufficient to support the defendant's conviction for joint possession of narcotics and other felonies.
Whether the trial court abused its discretion in denying the defendant's motion for a separate trial.
Whether the defendant is precluded from raising claims of procedural error for the first time on appeal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It is clear from this recital that there was ample evidence to support a jury’s finding that the two defendants were engaged in a joint criminal venture and that appellant was equally guilty with Billings of all three offenses charged.”

“The court acted well within its discretion in denying the motion for a separate trial.”

“While the evidence shows the actual physical possession of the narcotic to have been in his codefendant the evidence fully supports the jury’s conclusion that Billings’ possession was joint with appellant.”

DOOLING, J.

Appellant George Moller was charged by indictment jointly with one Billings with three felonies: 1. robbery; 2. assault with intent to commit murder; and 3. possession of narcotics. The indictment further charged three prior felony convictions of appellant. The indictment was later amended to charge two prior felony convictions of appellant, which two convictions appellant admitted. Appellant made a motion for separate trial which was denied and the two defendants were jointly tried before a jury which found both defendants guilty on all three counts, the jury further finding the robbery to be of the first degree.

The prosecution’s evidence showed the following:

Shortly after 5:30 p.m., April 17, 1958, the two defendants entered a pharmacy in San Francisco. Present were the proprietor, Man, and two employees. Billings pointed a gun at these three and forced them to lie on the floor in a back room. After defendants attempted to open the cash register without

[381]

success, Billings struck Mau and demanded that he open the cash register. When Mau had difficulty in opening the register Billings hit him with the gun and threatened to shoot him. Appellant then asked Mau about the key and Mau got the key and opened the register. Money and checks were taken from the register. Billings then demanded narcotics from Mau. Mau offered Billings a cigar box containing narcotics but Billings demanded “the big stuff.’’ When Mau replied that he did not know what Billings wanted Billings shot Mau in the chest seriously wounding him. Billings seized two bottles of codeine capsules and fled. Mau followed and saw Billings enter an automobile which pulled away. Mau fired three shots after the fleeing automobile.

Four high school boys saw a man run out of the store and enter an automobile. Two of them identified the fleeing man as Billings and the driver of the automobile as appellant. One of Man’s employees, Englund, informed the boys of the robbery. The boys followed the automobile until it parked in front of Billings’ home. They saw both Billings and appellant climbing the stairs. The boys called a policeman who arrested appellant immediately and Billings shortly afterwards in a nearby bar.

Billings freely admitted the robbery although he claimed that Mau was accidentally shot in a struggle for a gun, and denied demanding narcotics. Both Billings and appellant denied that appellant had any connection with the crimes.

People v. Moller

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DOOLING, J.

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