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District Court of Appeal, Second District, Division 2, California.


Cr. 4291.

Decided: April 08, 1949

Rosalind G. Bates, of Los Angeles, for appellants. Fred N. Howser, Atty. Gen., and Henry A. Dietz, Deputy Atty. Gen., for respondent.

After trial before the court without a jury defendant was found guilty of (1) two counts of robbery of the first degree, and (2) two counts of kidnapping for the purpose of robbery. From each of the judgments and the order denying his motion for a new trial he appeals.

The evidence being viewed in the light most favorable to the people (respondent) and pursuant to the rule set forth in People v. Pianezzi, 42 Cal.App.2d 265, 269, 108 P.2d 732, the essential facts are:

At about 6:30 p.m. on January 23, 1948, defendant and Caryl Chessman entered the Town Clothiers at Redondo Beach, California. Joe Lesher, a clerk in the store, and Melvin Waisler, the owner, were present. Defendant asked Mr. Lesher to show him a topcoat. For 15 minutes defendant examined various coats that were displayed to him. During this time Mr. Waisler was walking about in the store and finally went into his office in the rear of the building. Shortly afterwards he came back into the store and defendant and Chessman displaying guns said: “Come on, this is a stick-up, you put up your hands.” Chessman was armed with a .45 caliber pistol and defendant appeared to be armed with a toy cap pistol. They then asked Mr. Lesher what the room was to the right and he told them it was a stock room, whereupon defendant and his companion forced Mr. Lesher and Mr. Waisler to go into the stock room threatening them with their guns.

This room was located about 25 feet from the place where they were when it was announced that this was a holdup. They were forced to go into the stock room when defendant and his companion menaced them with their guns. In the stock room defendant took the .45 revolver from Chessman and gave him the gun he had. Messrs. Waisler and Lesher were ordered to stand in the room with their faces toward the wall and to throw their wallets out. Mr. Lesher tossed his wallet out which contained $38.00 in cash and checks, whereupon he was then taken into the store and forced to open the cash register from which defendant took $227.30. After this Mr. Lesher returned to the stock room where defendant struck Mr. Waisler on the head with the barrel of the gun and at the same time he said to Mr. Lesher: “Keep your head to the front or I will give you the same dose.” Defendant and Chessman then left the store and fled in a grey Ford coupe.

The robbery was immediately reported to the police. At about 8 o'clock on the evening of the robbery Officers May and Reardon observed on Vermont Avenue about a half block south of Hollywood Boulevard a Ford automobile answering the description of the one in which defendant and his companion had fled from the scene of the robbery. After pursuing the car for some distance it was stopped. Chessman was driving the car and defendant was in the right front seat. When the car was stopped defendant got out and ran about 30 feet and got up on a parking strip during which time he dropped the .45 automatic pistol with which he had been armed. In the car was found Mr. Lesher's wallet and the toy gun which had been used in the robbery. There was also found a considerable amount of currency and clothing which had been stolen from the store. Messrs. Lesher and Waisler later identified defendants as the men who committed the crimes. The fact that the police officers had telephoned them and said that they had arrested the men who had committed the robbery was evidence which the trier of fact could consider in determining the sufficiency of the evidence of identification.

Defendant relies for reversal of the judgments on two propositions which will be stated and answered hereunder seriatim:

First: The evidence is insufficient to support the judgments.

This proposition is untenable. An examination of the record discloses ample testimony and other evidence of each and every material fact set forth above. From such proof the trial court was justified in impliedly finding:

(1) That defendant while armed with a deadly weapon forcibly took from (a) the person and immediate presence of Mr. Waisler money in the amount of $227.30, and (b) Mr. Lesher $38.00. (This finding sustains the judgments of guilty on two counts of robbery of the first degree.)

(2) That defendant at the point of a gun forced Messrs. Waisler and Lesher to go some 25 feet from the place in the store where they were into an adjacent stock room and to remain there for a considerable period of time. (This finding sustains the judgments of guilty of kidnapping.) (People v. Oganesoff, 81 Cal.App.2d 709, 711, 184 P.2d 953; see also People v. Ash, 88 Cal.App.2d 819, 199 P.2d 711).

The case last cited supports the trial court's conclusion that the complaining witnesses had ample opportunity to identify defendant as one of the perpetrators of the crimes.

People v. Radovich, 122 Cal.App. 176, 178, 9 P.2d 542; People v. North, 81 Cal.App. 113, 117, 252 P. 1063; People v. Deal, 42 Cal.App.2d 33, 35, 108 P.2d 103; People v. Fletcher, 46 Cal.App.2d 126, 128, 115 P.2d 517, relied on by defendant, are not here of value as each of these cases was affirmed and in each of them the identification of defendant was held to be sufficient. Likewise People v. Braun, 14 Cal.2d 1, 92 P.2d 402, is inapplicable for the reason that the court held that the identification of defendant was sufficient, but reversed the case because of the misconduct of the district attorney.

Second: The legislature did not intend to make any holding or moving of the victims of a robbery from one room to another kidnapping.

This proposition is likewise untenable. The law is now settled that where a person is restrained through fear it is as much a violation of the law of kidnapping as if he were carried away and concealed. (People v. Salter, 59 Cal.App.2d 59, 67, 137 P.2d 840; see also People v. Tanner, 3 Cal.2d 279, 297 et seq., 44 P.2d 324; People v. Dugger, 5 Cal.2d 337, 339, 54 P.2d 707.)

To sustain a conviction under section 209 of the Penal Code it is not necessary to prove that defendant moved his victim or compelled him to move from one point to another. That section provides that “Every person who seizes, confines * holds or detains” another to commit extortion or robbery shall suffer death or life imprisonment.

In the present case the evidence discloses that the complaining witnesses were forced into a back room at the point of a gun; that defendant during the robbery guarded the complaining witnesses and struck one of them over the head with a gun and at the same time threatened to strike the other if he turned his head; that these acts took from 15 to 20 minutes and were accompanied by the stealing of considerable property from the victims. The facts clearly bring the case within the provisions of section 209, Penal Code,a1 and the convictions are sustained by the authorities above cited.

The judgments and order are and each is affirmed.


1.  Section 209 of the Penal Code reads thus: “Every person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or robbery or to exact from relatives or friends of such person any money or valuable thing, or who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the State prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the State prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.”

McCOMB, Justice.

MOORE, P.J., and WILSON, J., concur.

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