People v. Fiene

JEFFERSON, J.

Defendant was found guilty by the court of a violation of section 667 of the Penal Code, petty theft with a prior conviction of a felony. Probation was denied and defendant was sentenced to a county jail term. He appeals from the judgment of conviction. A résumé of the facts is as follows:

On February 11, 1963, at about 3 a.m., defendant and two other men entered the Valley-Ho restaurant and ordered meals. After eating, defendant got up, went to the restroom for a few minutes, and then left the restaurant by the side exit. One of the two remaining men asked for and was given the check for the price of the meals. Approximately 10 minutes after defendant had left, the other two men started for the restroom, and then left by the same exit defendant had used. No one paid the check in the amount of about $8.00. The manager saw the two men leave and followed them outside. When he yelled at them, one of the men took off running. He then saw defendant standing behind a station wagon in the parking lot. When he shouted to some of his customers, who had emerged from the restaurant, asking that they get the police, defendant and the other man also ran off.

Two or three weeks prior to this episode a similar incident

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took place at the same restaurant. Defendant and the first man to run, had come in, ordered meals and left without paying for them. On that occasion, after eating, defendant went to the restroom, the other man followed shortly thereafter, and then both left by the same side exit.

Defendant told an investigating police officer, who spoke to him at his home on the morning of the February 11 incident, that he had been home all night. However, he later told the same officer that he had been to the restaurant with the other two men; there had been no agreement as to who would pay; after eating he went to the restroom; he then left and walked home.

Defendant stated to another police officer that he had been drinking before he entered the restaurant; at the time he entered he had only 25 cents on his person; the first man who had run, Weeder, was going to pay the cheek. When the officer later told defendant he had talked with Weeder, and Weeder denied even being in the restaurant that morning, defendant said, “Well, it wasn’t Weeder that was going to pay the check. Some fellow in the next booth was going to pay. I don’t know who he was.’’ Defendant then said he had never seen the man in the next booth before.