People v. Tornello

HERNDON, J.

A jury found appellant guilty of robbery in the first degree. He appeals from the judgment of conviction and from the order denying his motion for a new-trial. His sole contention is that the evidence is insufficient as a matter of law to sustain his conviction. He urges that “all the evidence points conclusively to the fact that appellant is the victim of mistaken identity.” This contention is without merit as a brief recital of the salient facts will show.

On March 20, 1960, Charles Kamenar was the manager in charge of a liquor store in Encino, California, known as “Edward V.” At approximately 10 o'clock a.m. on that day a man entered the store, purchased a pack of Marlboro cigarettes and departed. About 10 minutes later the same man reentered the store and asked for a bottle of Johnnie Walker Scotch liquor. When Kamenar opened the cash register to make change, this man produced a gun and ordered him to go to the rear of the store.

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In the rear of the store the gunman forced Kamenar to lie face down on the floor, and then proceeded to tape his hands behind his back with 1-inch adhesive tape. After about 15 minutes, Kamenar freed himself, went back to the front of the store and found that approximately $180 had been taken from the cash register and that some scotch liquor had been taken also.

Kamenar’s testimony identifying appellant as the robber was positive and unqualified.

1

In his report to the police, given shortly after the robbery, he described the robber as follows:

“A

male Caucasian; fifty-five to sixty; five feet six inches; 160; gray

hair;

black eyes; dark complexion; gray suit and hat; rough looking features; clean shaven; possibly Italian.” Apparently the foregoing was fairly descriptive of appellant’s physical characteristics. It does not appear that appellant has questioned its essential accuracy.

Kamenar testified that at the time of the robbery appellant was dressed in a gray-striped suit which appeared to be cleaned and well pressed. He was wearing a narrow-brim hat. The suit described by Kamenar was similar in appearance to one which the police found in appellant’s clothes closet and which was placed in evidence.