People v. Keosababian

McCOMB, J. From a judgment of guilty of robbery in the first degree after trial by jury, defendant appeals.

The evidence being viewed in the light most favorable to the People (respondent), and pursuant to the rules set forth in People v. Pianezzi, 42 Cal.App.2d 265, 269 et seq. [108 P.2d 732], the essential facts are:

On March 29, 1945, at about 5 p. m., the complaining witness, Mr. John L. Bath, was employed as a service station operator at a station located on East Firestone Boulevard in the county of Los Angeles. Mr. Bath heard a noise and as he turned around Howard Bernard pointed a .45 calibre automatic gun at him and demanded the keys to the safe. He replied that he did not have them; whereupon Mr. Bernard directed defendant who accompanied him to get the keys, and open the cash register. As soon as this had been done, defendant removed money from the cash register and asked his companion if they were going to tie Mr. Bath up. After [478]Mr. Bernard had replied in the negative defendant struck Mr. Bath under the heart with his fist. They thereupon locked Mr. Bath in a restroom. In addition to the money taken from the cash register defendant and his companion took $47 from Mr. Bath, $30 of which belonged to the latter’s employer.

Defendant relies for reversal of the judgment on three propositions which will be stated and answered hereunder seriatim:

First: There is not any substantial evidence to sustain the finding of the jury that defendant was (1) a participant in the crime and (2) present when the felony was perpetrated.

This proposition is untenable. An examination of the record discloses substantial evidence together with inferences which the jury may have reasonably drawn therefrom to sustain each and every material finding of fact upon which the judgment was necessarily predicated, including the identity of the defendant as being a participant in the crime of which he was convicted. For example:

(1 & 2) Mr. Bath testified that defendant was the man who participated in the robbery. The fact that his testimony was contradicted by other witnesses who attempted to establish an alibi for defendant, and that on cross-examination Mr. Bath stated that he was basing his identification of defendant solely upon the portion of defendant’s face which was exposed to his view, merely created a conflict in the testimony. The resolution of this conflict was for the trier of fact whose determination based on substantial evidence, as in the instant case, is binding upon this court. (See People v. Pianezzi, supra, 269.)