People v. Napolitano

FOX, P. J. The district attorney of Los Angeles County filed an information in two counts charging, in Count I, that Frank Napolitano and Donald Frank Harris, the appellant [478]herein, committed the crime of robbery (Pen. Code, § 211) in that on or about March 7, 1958, they robbed Mary Ann Velasquez of $107.

Count II charged that Napolitano and Harris committed the crime of attempted robbery (Pen. Code, §§ 211, 664) on the same date in that they feloniously attempted to take from the person and possession of George Velasquez goods and personal property in his possession. It was also alleged in each count that at the time of the commission of this offense the defendants were armed with a deadly weapon, to wit, a .32 caliber automatic.

The defendants had a jury trial. The jury retired for deliberations at 10:10 a.m. on June 4th. Not having arrived at a verdict by late afternoon, the jury was sent to a local hotel for the night. Two deputy bailiffs were sworn to take charge of the jury in addition to two deputy sheriffs sworn previously. The jury returned to the courtroom on June 5th, and after deliberating from 8 :30 a.m. to 10:06 a.m. returned to the court with the verdicts finding appellant Harris and his codefendant Napolitano guilty as to all charges. The written verdicts were dated June 4, 1958. The court inquired of the foreman whether the verdicts had been arrived at while the jury was confined during the night at the hotel. The foreman replied: “That is correct.” Appellant and his codefendant waived polling of the jury and it was discharged.

Appellant’s motion for a new trial was argued and denied and he was sentenced to the state prison for the term prescribed by law, the sentences to run concurrently. Harris has appealed.

Mr. and Mrs. Velasquez owned and operated a drive-in restaurant in the city of South Gate. At about 11:25 p.m. on March 7,1958, while the restaurant was still open for business but without any customers, two men came in through the rear door and announced, “This is a stick-up.” Each had a handkerchief in his left hand and when the door opened each covered his nose and mouth with the handkerchief. Mr. Velasquez saw this covering movement. Napolitano had a gun which appeared to be a .32 caliber automatic. He ordered Mr. Velasquez to lie down on the floor face down. Harris ordered Mrs. Velasquez to empty the money in the cash register into a bag, which he took. Mr. Velasquez and Napolitano got into a scuffle which resulted in Napolitano’s dropping the handkerchief from his face, thus providing Mr. Velasquez with a full view of his face at close range. The scuffle continued