People v. Duarte

ADAMS, P. J. Clarence Duarte and Evelyn Baxinan, together with John Duarte, brother of Clarence, David Amina and Robert Walton, were charged with four counts of armed robbery and two> counts of burglary. Amina and Walton entered pleas of guilty. John Duarte pleaded guilty to one count and then testified for the prosecution. Clarence and Evelyn were convicted on count three, robbery of the first degree, and count five, burglary of the second degree. Motions for a new trial were denied and the convicted defendants have appealed, urging, as grounds for reversal, that their convictions were based upon the testimony of John Duarte, an accomplice whose testimony was not sufficiently corroborated, and that there was reversible error in the giving and the refusing of certain instructions.

The victim of the armed robbery was one Jerry Comstock, who operated a grocery store at 40th Street and 12th Avenue, in Sacramento, from whom, under threat of arms, was taken cash amounting to some $600, and his watch and wallet.

The burglary involved a building occupied by one George La Brasca as a service station in Sacramento, from which the defendants took a pistol needed for proposed operations of the gang.

John Duarte, testifying as to the burglary, stated that on the evening of September 26, 1948, he and Clarence, together with Baxman and Amina, were riding in Clarence’s car; that they needed a gun for future operations and Clarence said he knew that La Brasca kept one in his service station. Clarence parked the car in front of the station, told Amina where the gun was kept, then drove away, leaving John and Amina to secure the weapon. Amina broke a window, reached through and secured the revolver, and the two then returned to the car, which was parked a block away. The gun was handed to Clarence. When he attempted to start his car he [663]was unsuccessful, so telephoned for a “wrecker.” John’s testimony in this connection was corroborated by Clarence who admitted telephoning for a towcar, and by Elmer Sims who testified that he responded to such a call, and upon arrival found Clarence, Baxman and John Duarte; that he had seen Clarence on previous occasions and recognized him; that he towed the car, described as a 1937 or 1938 Oldsmobile sedan, to a garage. He also testified that a few days later he saw Clarence, Baxman and John at that garage, at which time Clarence sought to borrow some money from him. Mrs. Griffay, wife of the garage operator, testified that she saw Clarence’s ear at the garage on the date that it was towed in, and recognized it, as they had previously repaired it.