People v. Bacciocco

TYLER, P. J.

Appeal from an order denying defendants’ motion to vacate and set aside a judgment sentencing them to suffer the penalty prescribed for the commission of the crime of robbery in the first degree, after plea of guilty by them to the commission of such offense. In the same motion appellants moved the court for permission to withdraw their plea and to interpose in lieu thereof a plea of guilty to the crime of attempt to commit robbery. In support of the motion it was claimed, first, that the plea of guilty was interposed by them through inadvertence and mistake and in the belief that they were at the time entering a plea to a lesser offense, and, second, that the facts involved in the case show that the offense committed by defendants was not that of robbery, but was simply an attempt to commit robbery.

The motions were denied. It is here claimed that the court abused the discretion conferred on it by law in its refusal to vacate the judgment and to allow the entry of the proper plea. The appeal as to appellant Morrison has been dismissed, and the alleged error is here urged on behalf of appellant Bacciocco alone. We see no merit in his contention. The record does not show what proceedings were had at the time the plea was entered other than the defendants pleaded guilty to the charge of robbery in the first degree. It does show, however, that the motions here made were denied by the same judge who accepted the plea. It further shows that he was familiar with all the circumstances of the plea at the time it was entered. Upon the hearing of the motions to vacate the judgment and to permit a plea to the lesser offense, the court stated that defendants at the time they entered their plea, knew exactly what was going on; that they were represented by counsel and the plea was entered upon condition that other charges would be dismissed; that such charges were dismissed in accordance with the arrangement and the plea accepted. He further stated, in

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substance, that he had asked defendants if they were going to plead guilty of first degree robbery, which involved the commission of the offense with the aid cf a gun, and that there was no suggestion from either of them or their counsel that they would not plead guilty of robbery in the first degree. The court further stated that both men were of sufficient intelligence to know exactly what was going on and he was satisfied that their plea was not entered through any mistaken notion that they were pleading guilty to another and lesser offense. Under such circumstances the court did not abuse its discretion in denying the motion to vacate and set aside the judgment. Equally without merit is the claim that the evidence shows that defendants were merely guilty of an attempt to commit the crime of robbery. As the defendants pleaded guilty the prosecution was not called upon to present all the evidence it had concerning the commission of the crime. Defendants had waived preliminary examination in the police court, and in consequence the only evidence there received consisted of the testimony of the prosecuting witness and a police officer, which, in a limited manner, described the circumstances under which the crime was committed. The transcript of the evidence taken at such examination showed that the prosecuting witness testified to the effect that he was a janitor employed at the New Fillmore Theater. That on the twenty-third day of February, 1926, at about 12 o’clock at night, and when he was performing his duties, he heard someone pounding on the door; that immediately thereafter he was confronted by two men, one of whom placed a revolver against his stomach, and the other tied him up; that they then took him upstairs, defendant Bacciocco in the meantime keeping the revolver placed at his side; that they took a bunch of keys from his person and stood him in a corner with his hands tied; that they later conducted him to a room and tied his feet together. It is claimed that the testimony of the police officer showed that the keys taken from the prosecuting witness were returned to him by defendants and that the temporary taking of them from the person of the prosecuting witness did not constitute robbery. The testimony, as recited, shows without conflict that the keys were forcibly and through fear taken from the person of the complaining witness. It is true the record does not