P. v. Arthur

Filed 8/23/06 P. v. Arthur CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Timothy Arthur of attempted robbery, false imprisonment, and other charges arising from an alleged home invasion robbery. Defendant contends that the trial court prejudicially erred by: (1) failing to adequately investigate whether one of the jurors slept during material portions of the trial, and (2) upholding a defense witness's refusal to testify on Fifth Amendment grounds. Defendant contends in the alternative that there was insufficient evidence to sustain his attempted robbery conviction. We find no reversible error or insufficiency of the evidence, and affirm the judgment.

I. BACKGROUND

Defendant was charged by amended information with two counts of residential robbery (Pen. Code,[1] § 212.5, subd. (a)) with personal use of a shotgun (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1)), three counts of false imprisonment (§ 236) with personal use of a shotgun (§ 12022.5, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)) with personal use of a shotgun (§ 12022.5, subd. (a)), and possession of a firearm by a convicted felon (§ 12021, subd. (a)). Defendant pleaded not guilty to all counts, and a jury trial commenced on November 9, 2004.

A. Prosecution Case

Adam Tune sold marijuana. He first met defendant in early 2002 when defendant came over to Tune's Belmont home with Aaron Perigo, a regular marijuana customer of Tune's in that time period. Tune, Perigo, and defendant spent about an hour together in Tune's garage, and smoked a little bit of marijuana. Some time in February 2002, Tune's house was burglarized. Various rooms had been ransacked. Among the items Tune found to be missing were a safe containing a few hundred dollars in cash, two pounds of marijuana, a Playstation game console and controllers, some video games, and a large water pipe worth about $350. Tune was afraid to report the burglary to the police because of the marijuana he had in the house.

Tune suspected that a marijuana client he had known for about a month, Dan Bandov, was involved in the burglary. Tune's roommate, James Barefield, had seen Bandov in the neighborhood just before the time when the burglary took place. Tune called Bandov and confronted him about burglarizing the house, and also had a verbal confrontation with him at Macy's.

In the last week of February, defendant and another man later identified as Gabriel South showed up outside Tune's house in a red truck, and offered to sell him back the expensive water pipe that had been stolen from his house in the burglary. Tune told them he was not interested. During the conversation, defendant asked Tune if he had cleaning ladies in the house that day, and Tune told him, â€