People v. Marquez

GRIFFIN, P. J. Defendant appeals from a judgment of conviction entered upon a jury verdict finding Mm guilty of four counts of first degree robbery, in violation of Penal Code, section 211, and from the order denying his motion for a new trial. He was sentenced to serve concurrent sentences in the state prison for the term prescribed by law.

Defendant’s sole contention on this appeal is that the trial court erred in refusing to give his requested instruction on circumstantial evidence: that where the evidence is susceptible of two constructions, each of which appears to be reasonable, it is the jury’s duty to adopt that construction which points to the defendant’s innocence. (CALJIC No. 26.)

The evidence presented at the trial was briefly as follows: At about 9:15 p.m. on May 20, 1960, appellant and codefendant Felipe Falacias entered Ernie’s Liquor Store in San Bernardino. Appellant stayed at the door while Falacias obtained a six-pack of beer from the refrigeration case, went to the counter and placed the beer and a dollar bill on the counter. Falacias then drew a gun and ordered Mrs. Eldridge, who was behind the counter, to give him all her money. After some argument, Mrs. Eldridge took the money out of the cash register and placed it in a paper bag on the counter. While she was doing this, two customers entered the store at brief intervals. Falacias struck both of them and then ordered them to stand at the end of the counter. He then ordered them to hand over their wallets which were then placed in the bag with the money from the cash register. Falacias demanded that Mr. Eldridge put his wallet and two bottles of vodka in the same bag. This was done. During this time, appellant remained standing in the doorway of the liquor store looking outside the front door and also observing what was occurring within the store. He spoke to Falacias during the robbery but the witnesses were unable to understand what he said. After obtaining the money from the cash register, the wallets of the three men and the liquor, Falacias ordered the two customers and Mr. and Mrs. Eldridge to go into a rear room of the store and lie on the floor. Then Falacias and appellant ran out of the store and got into Falacias ’ ear which had been parked nearby.

Officer Moseley of the California Highway Patrol observed Falacias’ car leave the vicinity of Ernie’s Liquor Store and proceed east on Fifth Street. A few minutes later, Officers Flores and Iselhart observed Falacias’ car traveling at a high rate of speed through a stop sign at the intersection of Fifth [433]