People v. Lopez

SHINN, P. J. J.Edward W. Kwok, William Lopez and Richard Lopez, were jointly charged by information with robbery from the person of one Ellen Berry of jewelry of the value of $8,400 and $15 in money, and by the same information of conspiracy to commit said robbery. On motion of the district attorney the charges were dismissed as to William Lopez and he testified for the State. Defendants Kwok and Richard Lopez were tried without a jury and convicted of both offenses. Kwok appeals.

The sole ground of the appeal is insufficiency of the evidence at the preliminary examination to justify the filing of the information, and insufficiency of the evidence at the trial to prove the commission of either offense.

[546]Defendant Kwok made a motion under section 995, Penal Code, to set aside the information upon the ground that he had been committed without reasonable or probable cause. This motion was denied. The argument presented here attacks this ruling on the theory that one Jose Vargas was an accomplice in the crimes and that his testimony which tended to implicate Kwok was entirely uncorroborated and further, if he were not an accomplice, that his testimony and that of the other witnesses wholly failed to establish probable cause for the belief that Kwok was guilty. (In re Martinez, 36 Cal.App. 2d 687 [98 P.2d 528].) The evidence at the preliminary developed the following facts: Kwok, a Chinese, was an auctioneer and had been employed by the Gregory Auction Company of Los Angeles for six years. Mrs. Berry had purchased many articles of jewelry from him, of a total value of $6,000 or $8,000. For some two years or more she had been an almost daily attendant of the auction sales, and made a practice of wearing valuable rings and a diamond wrist watch. On August 21, 1947, in the late afternoon, while she was pursuing her customary way to her apartment on foot, she was set upon by William and Richard Lopez on the street, knocked down, rendered unconscious and robbed of her rings and watch. The Lopez boys, who are cousins, fled in a small truck. Jose Vargas was a friend of defendant Kwok, with whom he had been in a venture some months before in the purchase and disposal of a stock of drugs and sundries. Vargas testified that he had introduced the Lopez boys to Kwok some weeks before the robbery; that on August 20th, Kwok asked Vargas to arrange for the rental of a truck, telling Vargas that he desired to move some goods to Chinatown; Vargas did not have the financial ability to do this and so informed Kwok; on the following morning Kwok and Vargas went to a rental establishment where they met William Lopez; Kwok rented a truck in his own name, made the required deposit and turned the truck over to Vargas, who drove it away, accompanied by William. Near by, they picked up Richard Lopez and drove to Vargas’ home, then to his sister’s home, where Vargas turned over the truck to the Lopez boys in the early afternoon. These boys drove around until it was time for Mrs. Berry to be on her way home and they then parked the truck on the street, where they waited for her and committed the robbery. Vargas also testified that the same evening he and the Lopez boys met at Vargas’ home where he saw William Lopez hand over to Kwok a handkerchief, the contents of which