People v. Byrd

FOURT, J. This is an appeal from a judgment of conviction of robbery in the first degree.

In an information filed in Los Angeles on April 6, 1967, defendant was charged with codefendant Myrtis Stepna with robbing Joseph Hoffman on February 3,1967. Each defendant pleaded not guilty. By stipulation the cause was submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing and the exhibits there introduced with the right to introduce further evidence. Each defendant was found guilty as charged, the robbery was found to be in the first degree and further it was found that Byrd was armed with a dangerous and deadly weapon at the time of the commission of the offense. Byrd was referred under the provisions of section 1203.3, Penal Code. The Department of Corrections recommended in effect that Byrd be sentenced. Probation was denied and Byrd was sentenced to the state prison. A timely notice of appeal was filed.

A résumé of some of the evidence is as follows: Joseph Hoffman on February 2, 1967, operated a clothing store on Los Angeles Street. Appellant and Stepna came into the store and selected some merchandise which they apparently were unable to pay for at the time and they asked Hoffman to lay aside the items, and stated that they would be back later. The next day, on February 3, 1967, at about 8 :30 a.m., appellant and Stepna returned to the store. Hoffman was asked whether he had the items which had been put away for codefendants the day before and he replied in the affirmative. Some changes were made in the items previously selected and appellant then told Hoffman: “I’m a stick up.” Appellant then struck Hoffman with his fist, pulled out a revolver and hit Hoffman on the head several times with the gun. The defendants ran out of the store in the direction of the parking lot next door. Stephen Morgan operated the said parking lot on Los Angeles Street and saw the defendants enter the lot and then return in about 15 minutes. Morgan noted upon seeing appellant when he returned that the latter’s hands had blood upon them. Appellant pulled out of his pocket all the change he had and gave it to Morgan. Morgan then heard Hoffman call out: “Stop this man. I’ve been robbed.” Morgan directed appellant to wait saying: “You’re not going to go any place. You better wait here and let’s find out what’s going on.” Officer Velasco arrived very shortly and among other things observed a sweater lying in the alleyway behind the scene of the robbery and next to the parking lot. The sweater was identified [821]as one which had been taken from Hoffman’s store. Velasco took a loaded revolver from appellant’s pants pocket, which gun was identified as being the gun used by appellant in beating Hoffman. Manuel Bisenberg, a clerk at the store, saw Hoffman bring some clothing from the hack of the store toward the front thereof when defendants came into the store on the 3d of February. Hoffman asked Bisenberg to add up the amounts owed for the purchases and while doing this Bisenberg heard Hoffman cry out and saw appellant with the gun and then saw Hoffman fall to the floor and appellant run from the store.