THE PEOPLE v. RONNIE NEIL BELL

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RONNIE O'NEIL BELL, Defendant and Appellant.

B226730

Decided: August 26, 2011

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, and Steen E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Ronnie O'Neil Bell appeals from the judgment entered following a jury trial in which he was convicted of carjacking, assault with a deadly weapon, and two counts of second degree robbery.   Defendant contends that insufficient evidence supports his conviction of assault with a deadly weapon, Penal Code section 654 precludes separate punishment for the assault and one of the robbery counts (undesignated statutory references are to the Penal Code), the court erred by imposing three fines under section 1202.5, and the clerk's minutes and abstract of judgment require correction.   We agree that the evidence was insufficient to convict defendant of assault with a deadly weapon and that clerical errors must be corrected, but otherwise affirm.

BACKGROUND

On the afternoon of March 1, 2008, letter carrier Corina Salguereno was seated in her parked mail truck near 88th Street and Hooper in Los Angeles.  (All date references pertain to 2008.)   About 2:15 or 2:18 p.m., a man approached her, stuck something that felt like a gun against her ribs, and demanded her wallet.   When Salguereno told the man she did not have a wallet, he ordered her to empty her pockets.   He repeatedly threatened to shoot her.   After Salguereno placed her cash, driver's license, and credit cards into a plastic mail basket, the man removed the truck's keys from a chain attached to her waist and ordered her to get out.   Salguereno got out and the man drove away in the mail truck.   Salguereno could not make an identification.

About 2:30 p.m. the same afternoon, Liset Leyva saw a man who was not wearing a uniform get out of a postal truck parked near 87th Place and Central Avenue and run away.   Leyva could not make an identification.   A postal inspector who examined the truck at the scene about 3:00 p.m. found a plastic cigar tip in the same plastic mail basket as Salguereno's driver's license and credit cards.   Salguereno testified that the cigar tip was not in the truck at any time before the truck was stolen from her.   The parties stipulated that defendant was a match for single-source DNA obtained from the cigar tip.   A Hav–A–Tampa cigar purchased by a postal inspector witness was admitted into evidence for comparison with the cigar tip found in the postal vehicle.

About 11:00 p.m. on December 17, a man bumped against Cynthia Glamore in her driveway on Halldale Avenue in Los Angeles as she unloaded packages from her car and began tugging on her purse strap.   Glamore fought to hold onto her purse and began screaming.   The man shoved her to the ground and punched her in the face.   He grabbed from the purse a smaller bag that contained Glamore's driver's license, credit cards, and cash, then ran and got into his car, which was a white Chrysler 300.   Glamore got up and chased him.   She went to the back of his car, then grabbed the license plate to pull it off the car.   The car backed up, knocking Glamore to the ground.   The car then pulled forward and drove away.   As it did so, the license plate popped off in Glamore's hands.   She gave it to the police when they responded to her 911 call.

Glamore's neighbor, Nekoa Smith, saw an unfamiliar man wearing a black sweatshirt with the hood up park his white Chrysler 300 “right behind” a car in which she was sitting with a friend.   The man got out and stood in Glamore's driveway.   Smith heard Glamore scream that she was being robbed and saw the man run back and get into the driver's seat of the car.   Smith called 911.

The license plate was issued for a car registered to defendant and his wife, Decubinise Davis, at an address on East 80th Street.   A Los Angeles Police Department officer went to that address about 2:30 a.m. on December 18 and saw the white Chrysler parked on the street in front of the house.   The car was missing its rear license plate.   The officer knocked very loudly on the door five to eight times and announced his presence, but no one responded.   A different officer arrived outside the house around noon on December 18 and saw defendant come out of the house, unlock the car, and get into it.   The officer approached and said he was investigating a crime in which the car may have been used.   Defendant said that was impossible because he had the only key to the car and no one else had permission to drive it.

Davis consented to a search of her home.   The police found a hooded black sweatshirt on the couch.   Davis testified the shirt was defendant's.   The police found a purse strap and a smaller bag containing Glamore's driver's license and credit cards in a laundry hamper, beneath underwear that belonged to defendant.

At a showup on December 18, Glamore told police that defendant had the same build and body size as the robber, and Smith said defendant resembled the robber, but neither woman could make an identification.

Davis testified that defendant arrived at her house about 8:30 or 9:00 p.m. on December 17 and stayed until about 8:00 a.m. the next day.   Davis did not hear anyone leave the house or knock on the door on the night of December 17 or morning of December 18.   Davis testified there was only one key to the Chrysler, which she did not drive.

One of defendant's girlfriends, Kristen Dejohnette, testified that defendant phoned her on March 1. Her mobile phone records, introduced at trial, indicated the call began at 2:09 p.m., ended at 2:36 p.m., and was made from the landline at the Los Angeles home of defendant's mother, where defendant resided at the time.

Defendant testified in his own defense.   He denied committing the charged offenses.   He admitted that in 1987 he had been convicted of forcible rape, residential robbery, and two counts of residential burglary.   He also admitted that he smoked Hav–A–Tampa brand cigars.   Defendant testified that he sometimes walked through the neighborhood where the crimes against Salguereno occurred to go to a liquor store where he purchased his cigars.

Defendant testified that on the night of December 17 he went to a liquor store and saw an acquaintance he knew only as “Monk.” Although Monk had a nice Cadillac Escalade, he asked to borrow defendant's car to take a woman to a motel.   Defendant agreed.   Defendant went to Davis's house around 8:00 p.m., and Monk came by to get defendant's car between 10:00 and 10:15 p.m. Defendant went to bed and awoke around 11:00 p.m. or 1:00 a.m. when Monk rang the door bell to return the car key.   Defendant woke up about 7:00 or 7:15 a.m. on December 18 and drove Davis's adopted daughters to school.   He noticed a purse on the front seat of his car.   When he returned to Davis's house, he put the purse next to the laundry hamper, not inside it, and went back to bed.   A few hours later, defendant went outside and noticed that the rear license plate was missing.   Soon thereafter, the police arrived.   Defendant did not tell the police about Monk borrowing his car because he feared retaliation.

A police officer testified in rebuttal that he was outside Davis's house from at least 6:30 a.m. on December 18 and no one left the house, drove the Chrysler, got into it, put anything into it, or took anything out of it between 7:00 and 8:00 a.m.

The jury convicted defendant of carjacking, assault with a deadly weapon, and two counts of second degree robbery.   It found not true allegations that defendant used a firearm in the crimes against Salguereno.   The trial court subsequently found that defendant had suffered seven prior serious or violent felony convictions within the scope of the “Three Strikes” law.   The court sentenced defendant to 35 years to life in prison.

DISCUSSION

1. Sufficiency of evidence for assault with a deadly weapon

Defendant's conviction of assault with a deadly weapon was based upon his act of backing his car into Glamore.   He contends that the evidence did not show that he knew Glamore was behind his car, and was thus insufficient to support the conviction.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt.   (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)   We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence and make all reasonable inferences that support the judgment.   (People v. Barnes (1986) 42 Cal.3d 284, 303;  People v. Catlin (2001) 26 Cal.4th 81, 139.)

The jury was properly instructed that in order to convict defendant of assault with a deadly weapon it must find beyond a reasonable doubt that, among other elements, defendant willfully performed “an act with ․ a motor vehicle that by its nature would directly and probably result in the application of force to a person,” and when “defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.”  (CALCRIM Nos. 220, 875.)

Here, defendant's knowledge that Glamore was behind his car when he backed it up was crucial to the element requiring his awareness “of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.”   The jury identified this key issue and submitted a written request for a rereading of Glamore's testimony “about what happened when she was taking [the] license plate off, and was struck by the car.   Specifically, whether or not he was aware she was back behind the car.”   After reviewing all of the testimony and all transmittable exhibits, we are unable to conclude that the jury could reasonably find, beyond a reasonable doubt, that defendant knew Glamore was behind his car when he backed it up.

Glamore testified that defendant was already running away from her and toward his car when she got up off the ground and chased him.   She did not, as the Attorney General argues, testify that she was already standing behind defendant's car when he got in.   She was not asked about the relative timing of defendant's getting into his car and her arrival behind it.   She was not asked and did not testify about how long she stood upright behind the car before reaching for the license plate.   And she did not testify that defendant at any time turned to look behind him or looked in the rearview or side mirror, either while she was standing behind the car or at any other time.   Smith testified that she saw the robber running to his car, but was not asked and did not testify to any further observations of his conduct, except seeing that he got into the driver's seat of the car.   Thus, we cannot reasonably infer from Glamore's or Smith's testimony that defendant saw Glamore or otherwise knew she was behind his car.

We further note that defendant parked “right behind” the car in which Smith was seated.   Thus, defendant's knowledge that Glamore was behind his car cannot be inferred from defendant's mere act of driving in reverse, as there was another plausible motive for reversing, namely, gaining sufficient distance from the car ahead of him to pull away from the curb and into the street.   Glamore acknowledged this when she testified, “[H]e apparently was backing up to get out of the parking space.”

Accordingly, we reverse defendant's assault with a deadly weapon conviction for insufficiency of evidence.   This disposition moots defendant's challenge under section 654 to the sentences imposed for the aggravated assault and the robbery of Glamore and his request to correct the abstract of judgment to reflect that the sentence for the assault was concurrent with the sentence imposed for robbing Glamore.   We note that because the trial court imposed three-year concurrent terms for the robbery of Glamore and the aggravated assault, our reversal of the aggravated assault conviction does not affect the length of defendant's prison term, and thus resentencing is not required.

2. Clerical errors on abstracts of judgment and sentencing minute order

Defendant contends that the trial court erroneously imposed three theft offense fines of $10 each under section 1202.5, subdivision (a).   The Attorney General aptly concedes that only one such fine may be imposed per case (People v. Crittle (2007) 154 Cal.App.4th 368, 371), but argues that the trial court imposed the fine just once.

A review of the reporter's transcript of the sentencing hearing reveals that the court imposed a single $10 fine on defendant pursuant to section 1202.5, subdivision (a), but the clerk reported three such fines on the minute order and reflected $30 of these fines on both the original and the amended abstracts of judgment.   Upon remand, the clerk must amend its minute order to reflect imposition of a single section 1202.5, subdivision (a) fine and issue a second amended abstract of judgment correcting this error.

Defendant further contends that the minute order for the sentencing hearing erroneously includes the following notation, which he asks this court to strike:  “DMV Judgment Code J.” The Attorney General characterizes this reference as “superfluous,” but argues that no action need be taken “on a late request to correct the trial transcripts.”

During sentencing, the trial court did not order anything to be reported to the Department of Motor Vehicles (DMV).  The meaning of the DMV judgment code on the minute order is uncertain.   It may pertain to Vehicle Code section 1803 which requires courts to report to the DMV a conviction of violating certain specified offenses involving the operation of a vehicle or boat or “a violation of any other statute relating to the safe operation of vehicles.”   (Veh.Code, § 1803, subd. (a).)  The clerk may have included this code because the deadly weapon involved in the aggravated assault conviction here was a vehicle.   If so, our reversal of that conviction eliminates any possible basis for requiring a report to the DMV. Accordingly, we strike the code from the minute order and direct amendment of the minute order.   We note that the code was not reflected on either the original or the amended abstracts of judgment, and nothing in the record indicates that a report was actually made to the DMV or that defendant has in any way been prejudiced by such a report, if one was made.

DISPOSITION

The conviction in count 2 (assault with a deadly weapon) is reversed and may not be retried.   In all other respects the judgment is affirmed.   Upon remand, the trial court is directed to (1) issue and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment omitting count 2 entirely and reflecting a single $10 fine pursuant to Penal Code section 1202.5, subdivision (a);  and (2) amend its minute order for the hearing conducted July 8, 2010, to delete the reference to “DMV Judgment Code J” and to delete two of the three references to imposition of Penal Code section 1202.5, subdivision (a) fines.

NOT TO BE PUBLISHED.

We concur:

ROTHSCHILD, J. CHANEY, J.