People v. Gomez

DRAPER, P. J.

A jury found three defendants guilty of robbery (Pen. Code, § 211) in the first degree. The trial court reduced the degree to second, and sentenced Gomez and another to prison. Only Gomez appeals.

The victim, Taylor, testified that: he met appellant, the two codefendants and a fourth man not known to Taylor in a bar; a defendant suggested that they go to his home to play cards; they left in appellant’s car, with appellant driving, the unidentified man in the right front seat, and Taylor in the rear seat with a defendant on either side of him; appellant drove into Golden Gate Park; the two defendants in the rear seat struck Taylor; he kicked the rear of the front seat and the windows in seeking to escape; appellant stopped the car; one defendant said to the unidentified occupant of the front seat, “Get his money”; appellant struck Taylor in the face several times while the defendants in the rear seat held him; the unidentified man forcibly took $49 from Taylor’s right pants pocket and counted it; a defendant took $40 more from Taylor’s left pants pocket, tearing the pocket in doing so; two defendants beat Taylor with a small metal wheel; he was pushed from the car and it drove off.

Appellant admitted that the five entered his car and drove from the bar. He said that Taylor sought to have the ear

[574]

stopped, and

to drive it

himself, and

began to

kick at the front seat, breaking it. He said that he stopped the ear, told Taylor to get ont, and struck him in the face two or three times. After they reentered the car, appellant told Taylor he wanted him to pay for the damage to the seat, and Taylor gave the unidentified man some money, $20 of which was then handed to appellant.

The sole contention on appeal is that the trial court erred to appellant’s prejudice in failing to instruct the jury that it could not find appellant guilty on circumstantial evidence unless the circumstances were not only consistent with the hypothesis of guilt, but inconsistent with any other rational conclusion (CALJIC 27).