People v. Ponce

By information in three counts appellant Ponce was charged with robbery of Louis D. Pitzel, robbery of J. S. Addis, and kidnaping of Louis D. Pitzel for the purpose of robbery. Two prior convictions were alleged. Appellant admitted the two prior convictions and that he had served terms of imprisonment therefor. Following a trial by jury he was found guilty on all three counts; his motion for a new trial and application for probation were

Appellant was identified by Louis D. Pitzel as one of three men who held up his café on the morning of December 3, 1948, the other two being one Valencia, and one Burrer. Pitzel testified that at the point of a gun Burrer ordered him to the front of the bar where he took his wallet containing several hundred dollars; Pitzel saw Ponce back off from the stool where he had been sitting at the bar and start tugging at something in his trousers, and then start clearing the customers down to the end of the bar and ushering them into the men’s room; Pitzel refused to open the front cash register drawers and Burrer opened them himself, finding nothing; Burrer ordered Pitzel back to the central cash register which they opened and Burrer gathered what bills he could; Pitzel was then ordered from the bar to an office some 60 feet away, where Burrer then ordered Pitzel out of the office toward the men’s room, some 40 feet from the office; defendant Ponce dashed through an archway and motioned to Burrer whereupon the latter forced Pitzel, still at the point of a gun, to enter the men’s room in which the other guests and employees had already been placed. While Pitzel was still behind the bar a waitress came to the front door and finding it to be locked walked to the rear door and entered through the kitchen. She was met by defendant Ponce, who escorted her into the restaurant at the point of a gun which Pitzel described as a long barrel revolver type made of blue steel. James S. Addis testified that he was in the café at the time of the robbery; as he finished ordering his breakfast he noticed defendant Ponce sliding off his stool at the bar and reaching for something in his trousers; Ponce drew a large gun, pointed it at him and said “This is a holdup, get over there in the dark”; Addis went and stood outside the men’s restroom while Ponce went to the front and forced the other customers toward the back; they were then ordered into the men’s restroom and

The foregoing evidence is clearly sufficient to support the conviction of robbery. It is also sufficient to support the conviction of kidnaping. (People v. Tanner, 3 Cal.2d 279 , 295 [ 44 P.2d 324 ] ; People v. Johnston, 140 Cal.App. 729 [ 35 P.2d 1074 ] ; People v. Melendrez, 25 Cal.App.2d 490 [ 77 P.2d 870 ].)

Appellant’s chief contention is that section 209 of the Penal Code, which defines the crime of kidnaping for the purpose of robbery, was not intended to repeal or replace section 211 which defines the crime of robbery, and that section 209 both inherently and as applied in the present case is unconstitutional in that it makes every robbery a kidnaping and thus provides double punishment for a single offense. We find it unnecessary to pass upon the merits of this contention (see People v. Tanner, 3 Cal.2d 279 [ 44 P.2d 324 ] ; People v. Tanner, 77 Cal.App.2d 181 , 186 [ 175 P.2d 26 ]; People v. Simpson, 66 Cal.App.2d 319 [ 152 P.2d 339 ]; People v. Bruno, 140 Cal.App. 460 [ 35 P.2d 391 ]), in view of the fact that the sentences in the present case, which were all for life imprisonment, were ordered to run concurrently. Since his conviction and sentence were in any event clearly proper on the robbery counts, appellant is in no way prejudiced and may not urge the invalidity of his conviction for kidnaping. (People v. McWilliams, 87 Cal.App.2d 550 , 553 [ 197 P.2d 216 ], and cases there cited; People v. Bean, 88 Cal.App.2d 34 , 41 [ 198 P.2d 379 ] ; People v. Benenato, 77 Cal.App.2d 350 , 367 [ 175 P.2d 296 ].)

It is argued that the court erroneously failed to define for the jury the words “aided and abetted” as contained in an instruction that “the defendant is not chargeable with the acts of other persons unless he committed the act

Appellant’s final contention is that the court erred in denying his motion for a new trial on the ground of newly discovered evidence. In connection with the motion defendant filed an affidavit of one Arthur Villegas, averring that he was present in the café in the company of Julia Ruiz at the time of the robbery; that he saw the three men who participated therein and that defendant Ponce left the café prior to the robbery and was not one of the three men who committed it. It was also averred that Villegas did not learn of the trial of Ponce until after its conclusion when, by chance, he met Julia Ruiz on the street. At the hearing on the motion Julia Ruiz testified that Villegas was with her in the café at the time of the robbery, but that she did not know his address or how to find him and only chanced to meet him after the trial was concluded. Ponce also testified that he did not know Villegas or how to find him. In view of the fact that the testimony of Villegas would clearly be merely cumulative to that presented at the trial by Julia Ruiz and appellant, and was squarely contradicted by the testimony of Pitzel and Addis, it cannot be said that the denial of a new trial was an abuse of discretion.

The attempted appeal from the sentences is dismissed. The judgments and the order denying a new trial are affirmed.

Wood, J., and Vallée, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 30, 1950. Carter, J., voted for a hearing.