People v. Sanders

WHITE, P. J. In an information filed by the District Attorney of Los Angeles County, defendant was accused in counts I and II of the crime of robbery; in counts III and IV of the offense of kidnaping for the purpose of robbery; count V charged a violation of section 288a of the Penal Code; and count VI charged defendant with the crime of rape. It was also alleged that prior to the commission of the offenses charged, defendant was on or about September 7, 1948, convicted of a violation of section 503 of the Vehicle Code, a felony.

When the cause was called for trial, defendant personally, his counsel and the district attorney, stipulated that the case of the prosecution might be submitted on the transcript of the testimony adduced at the preliminary examination, with the added stipulation that all exhibits offered at said preliminary examination could be offered in evidence at the trial, and that both the prosecution and defendant could call any additional witnesses they desired. Defendant admitted the prior conviction pleaded in the information.

Following trial by the court defendant was found guilty of the offenses charged in counts I, II, V, VI, and not guilty as to counts III and IV. The court found the offenses charged in counts I and II to be robbery of the first degree.

From the judgments of conviction defendant prosecutes this appeal.

Regarding the factual background which gave rise to this prosecution, the record reflects that about 2 o’clock on the morning of January 23, 1949, defendant came into a hotel in the city of Los Angeles, at which James Brown, 75 years of age was acting as night clerk. Defendant used the telephone and then obtained change from the clerk for use in the cigarette machine. He explained to Brown that he was telephoning in regard to his automobile which had broken down. He sat [705]down in the lobby awhile and Brown sat at his desk, reading a book. Subsequently Brown was approached, by defendant who had a gun in his hand. He ordered the clerk to get on the floor and thereupon took $1.50 from Brown’s person. With a key he had removed from Brown’s clothing, he opened the hotel money drawer and took $20 therefrom.

At this time Mrs. Toby Barton, a tenant, came into the hotel. At gunpoint defendant compelled Brown and Mrs. Barton to go into the boiler room in the rear, some 10 feet away. There defendant compelled Brown to lie on his back and ordered Mrs. Barton to disrobe, with which directions she complied. He then ordered Brown to kiss Mrs. Barton’s privates, which he did. Defendant himself also kissed Mrs. Barton’s privates, copulating his mouth with her sexual organ, as well as compelling her to do the same with him. Defendant then compelled Mrs. Barton to have sexual intercourse with him. During all of this time defendant kept the gun in his hand. When they first entered the boiler room, defendant with the aid of the weapon he was carrying, took Mrs. Barton’s purse which contained $27. The foregoing testimony of Mr. Brown and Mrs. Barton was contained in the transcript of the testimony taken at the preliminary examination. These witnesses also testified at the preliminary examination that they recognized certain exhibits including a green felt hat, a brown suede pair of shoes and a green tweed overcoat that defendant was wearing at the time of the alleged offenses. They also testified that it was their belief that a weapon introduced into evidence was similar to the one used by defendant.