Rubio

JDefendant Henry Rubio was charged by information with robbery, in violation of Penal Code section 211. It was further alleged that defendant had used a firearm, to wit, a handgun, while committing the offense. Defendant entered a plea of not guilty. His trial was by jury.

Defendant was found guilty of robbery in the first degree, and the jury determined that the firearm use allegation was true. The trial court found that the jury determination on firearm use was within the meaning of Penal Code section 12022.5. Probation was denied. Defendant was sentenced to state prison for the term prescribed by law. He has appealed from the judgment of conviction.

The robbery occurred about 9:30 p.m. on December 9, 1973. Daniel McFetridge testified at trial that at this time he and his wife, Marina, were operating a small food market on Carson Street in Los Angeles County. McFetridge was sweeping the sidewalk in front of the store when he noticed a white Ford automobile in which there were several persons, parked nearby. Two men—one of them identified by McFetridge as defendant—got out of the car and started toward the market. McFetridge entered ahead of them and, from behind, felt…