P. v. Carmouche

Filed 7/13/06 P. v. Carmouche CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Harvey Carmouche of 10 counts of second degree robbery (Pen. Code, § 211)[1] (counts 1-4, 6-8, 10-12) and two counts of false imprisonment by violence (§ 236) (counts 5 and 9). In the second portion of the bifurcated proceeding, the trial court found true the allegations that appellant had suffered 14 strike convictions, two prior serious felony convictions, and three prior prison terms.

The court sentenced appellant to a term of 85 years to life in prison. The sentence consisted of consecutive terms of 25 years to life in counts 2, 3, and 6, and a consecutive 10 years for appellant's two prior serious felony convictions pursuant to section 667, subdivision (a)(1). Sentences on all other counts were to run concurrently. The court struck the prison-prior enhancements.

Appellant appeals on the grounds that: (1) he was denied his Sixth Amendment right to a fair and impartial jury when the trial court admonished potential jurors in a manner that encouraged jurors to be less than honest during voir dire; (2) appellant's due process rights under the Fifth and Fourteenth Amendments were violated because the evidence was legally insufficient to support certain elements of the crime of robbery in five of his robbery convictions; and (3) reversal of his conviction for false imprisonment by violence in counts 5 and 9 is required because the trial court failed to instruct sua sponte on the lesser and necessarily included offense of false imprisonment. We disagree and affirm the judgment.

FACTS

I. Prosecution Evidence

The charges against appellant stem from a series of robberies at commercial locations.

A. The McDonald's Robbery (Counts 5 through 9)

On March 18, 2004, at approximately 12:40 a.m., several employees were still working at a McDonald's restaurant on Manchester Avenue in Los Angeles. The employees were Maria Del Carmen Galvez, Carlos Pineda, and Maria Del Carmen Rocio, the manager. Two persons employed by Pride Cleaners, Aram and Zhenya Abgaryan, were cleaning the restaurant.

When Aram went outside to get a tool from his car, a man later identified as appellant grabbed his arm. Appellant took Aram inside the restaurant and told him to sit on the floor and stay there. Appellant was holding something white. Zhenya was also ordered to the floor. Aram and Zhenya later heard appellant opening cash registers.

Rocio, Galvez, and Pineda heard Zhenya shout and quickly went to the front of the store. Rocio and Galvez saw appellant grabbing Aram by the neck. Pineda had already been ordered to get on the floor. Appellant repeated that everyone must get down on the floor, and he and Rocio went to the safe. Rocio opened the safe and filled a bag with money. Appellant left with $300 to $500.

During the robbery, appellant carried something under his shirt that resembled a gun or a knife. After he left, a white T-shirt and a stick were found on the floor. At trial, Rocio said the robber looked like appellant. Galvez positively identified appellant as the robber at trial.

Rocio, Galvez, and Pineda were unable to identify anyone in the photographic lineups shown to them, although Pineda tapped on appellant's photograph and commented that it was â€