People v. Curry

LILLIE, J. Defendant, arraigned under the names of Ala Lalabad Alalakahn Zodiac XV and Zoraster, was convicted by a jury of first degree robbery (Pen. Code, § 211 [count I]) and two counts of kidnaping for the purpose of robbery (Pen. Code, § 209 [counts II, III]); the jury also found that at the [593]time he had been armed with a deadly weapon, a pistol. He appeals from the judgment.

On June 11, 1965, around 2 p.m., in the Shop Rite Market, defendant walked up to Dallas Evans, assistant manager, who was working in the vegetable section, and asked if he would okay a check. As Evans reached for it he found that defendant had a gun in his hand pointed at him; defendant told him, “You know what I want? I have got you tuned in. So don’t try your long key (used to turn on a burglar alarm).” Warning Evans not to start anything, defendant said, “Let’s go”; as they prepared to walk to the office, Mr. Lott, general manager stopped and asked Evans what was happening. Upon discovering that Lott was the manager, defendant raised the gun at him and said, “You come and go, too.” Defendant walked the two men to the office of the market, 45 or 50 feet from the place defendant first pointed the gun at Evans, and ordered them to give him “everything you got over there.” At defendant’s instructions, Evans put in his hat the money in the safe amounting to $1,450; defendant folded up the hat and said, “Don’t set the alarm because I have got a shotgun at the front door,” and backed out of the office. Meanwhile, codefendant Henry Huntsman, carrying a shotgun, had ordered employees out from behind the counter and back toward the rear of the store.

Huntsman, a defense witness, testified that he participated in the robbery but with a man who was not the defendant. Defendant testified that he had never been in the Shop Rite Market, knew Huntsman and had a business transaction with him but knew nothing about the robbery; he admitted a prior felony conviction.

The main issue relates to the judgment. Appellant claims that the trial judge, in sentencing him to the state prison on the robbery conviction (count I) and the two counts of kidnaping for the purpose of robbery (counts II, III), violated section 654, Penal Code.

In part, the judgment provides: “. . . Probation denied on counts 1, 2 and 3. Sentenced as indicated. A stay of execution is granted on counts 1 and 3 pending any appeal in reference to the judgment in count 2, such stay to become permanent upon serving of sentence in count 2.