People v. Berger

LILLIE J.

Defendant Berger and eodefendant Ruggiero were convicted by a jury of first degree robbery (Pen. Code,

[585]

§

211);

defendant also was found guilty of kidnaping for the purpose of robbery (Pen. Code, § 209). He admitted four prior felony convictions — grand theft (1946), burglary (1950), burglary (1955) and robbery (1955). Berger appealed from the judgment. On February 5, 1968, this court filed its opinion and entered its judgment affirming the judgment of conviction.

(People

v.

Berger,

258 Cal.App.2d 622 [66 Cal.Rptr. 213].) A petition for rehearing was denied February 23, 1968, and petition for a hearing by the Supreme Court was denied April 4, 1968. Thereafter on January 13, 1969, the Supreme Court of the United States granted defendant’s petition for writ of certiorari and ordered the judgment of this court be vacated and the case remanded for consideration in the light of

Barber

v.

Page,

390 U.S. 719 [20 L.Ed.2d 255, 88 S.Ct. 1318]). Accordingly on February 7, 1969, the cause was remanded for further proceedings in conformity with the judgment of the Supreme Court of the United States; thus, the matter is before us for consideration in the light of that court’s decision in

Barber

v.

Page,

390 U.S. 719 [20 L.Ed.2d 255, 88 S.Ct. 1318].

The trial started July 28, 1966. On June 8, 1966, the victim and only witness to the robbery and kidnaping, Carl Arthur Dunston, testified against defendant at the preliminary hearing at the conclusion of which Dunston told Deputy Devich that he was leaving for Colorado on that date, would not be returning and his address would be 40091 East 70th Avenue, Commercial City, Colorado. On June 30, 1966, a subpoena was issued directed to Dunston at his local address; no attempt was made to serve it. On July 22, 1966, an investigator with the district attorney’s office made the first effort to communicate with Dunston; he placed a telephone call to him at his home in Commercial City, Colorado; he did not speak to Dunston but talked to some of Dunston’s relatives; Dunston’s grandmother indicated that he had received a letter from the district attorney’s office, and the investigator instructed her to make certain Dunston responded by telegram; thus on July 25, 1966, the investigator received two telegrams allegedly from Dunston in Colorado. On the day of trial (July 28, 1966) about an hour before he testified, the investigator placed a second call to Dunston’s place of employment, American Smelting and Refining Co. near Denver, Colorado, but Dunston was not available; the call was transferred to his residence in Commercial City but no one answered. The investigator never spoke to Dunston in person or by telephone; the