P. v. Hewitt

Filed 5/12/06  P. v. Hewitt CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Dennis A. McConaghy, Judge.  Modified in part; affirmed in part.

            Buckley & Buckley, Stephen S. Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci, Ivy B. Fitzpatrick, and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

I.  INTRODUCTION

            Defendant Noell Laurie Hewitt appeals from her conviction of nine counts of robbery, two counts of assault with a semiautomatic firearm, and seven firearm use enhancements.  She contends that (1) the trial court improperly instructed the jury on the burden of proof with respect to her defense of duress; (2) the trial court erred in failing to instruct the jury on use of deadly or dangerous weapon as a lesser included enhancement to the charged enhancement of use of a firearm; (3) the firearm use enhancements and assault conviction are not supported by substantial evidence; (4) her sentence for assault should be stayed under Penal Code^[1] section 654; and (5) the firearm use enhancement as to one count should be stricken because it reflects an inconsistent verdict.  In her reply brief, she argues that her trial counsel provided ineffective assistance by failing to request an instruction on the lesser included enhancement of use of a deadly or dangerous weapon.  We conclude that defendant's sentences on the assault counts should be stayed under Penal Code section 654.  In all other respects, we affirm the judgment.

II.  FACTS AND PROCEDURAL BACKGROUND

            A.  Robbery at Serenity Day Spa (Count 1)

            In the evening of January 21, 2003, defendant entered the Serenity Day Spa and asked employee Chantel Whitlock for a brochure.  She then pulled out a small black .38-caliber semiautomatic handgun, aimed it at Whitlock, and demanded the store's money.  Whitlock gave her the money, and defendant told her to get on the floor.  Defendant left the spa, got in the passenger side of a waiting car, and drove away.  Defendant's gun appeared to Whitlock to be real, and defendant did not appear to Whitlock to be committing the robbery under compulsion or under the direction of anyone else, although her demeanor was nervous and jumpy.

            B.  Robbery at Sunsational Tanning (Count 2)

            At about 1:00 p.m. on January 25, defendant entered Sunsational Tanning and asked to use the bathroom.  When she emerged from the bathroom, she approached employee Sarah Marcum at the front desk, pulled out a black gun with brown or dark wood on its top portion, pressed it against Marcum's hip, and demanded that Marcum put money from the cash register into a bag.  After Marcum did so, defendant had her lie on the floor face down.  Defendant ran out the door and entered the passenger side of a waiting car.  Defendant did not appear to Marcum to be committing the robbery unwillingly; her demeanor was stern and demanding.

            C.  Robbery at Kraemer's Koffee Bistro (Count 3)

            At about 1:45 p.m. on January 25, defendant entered Kraemer's Koffee Bistro, ordered a cup of coffee, and left.  She soon reentered the store, walked behind the counter, pointed a black gun at employee Ashley Vigil, and asked for the store's money.  Vigil testified that the hole at the end of the gun was medium sized.  Defendant told Vigil to lie on the floor and threatened to shoot her if she did not do so.  Defendant left the store.  Defendant did not appear to Vigil to be committing the robbery involuntarily, although she seemed tense and nervous.

            D.  Robbery at Enlightenment Books and Giftware (Count 4)

            Early in the evening of January 27, defendant entered Enlightenment Books and Giftware and looked around in the shop for 10 or 15 minutes.  She then approached store owner Evelyn Artavia, pulled out a large gun, walked around the counter, and ordered Artavia to put items from the store and money from cash register into a bag.  Artavia described the gun as resembling a semiautomatic weapon, dark in color, with a textured tan or brown handle.  Artavia testified that the gun felt real.  Defendant directed Artavia to go to the store's office and to give defendant money from her purse. Defendant had Artavia lie on the floor, and defendant put the gun to her head.  Defendant did not appear to Artavia to be nervous or to be committing the robbery involuntarily; rather, defendant seemed calm and in control.

            E.  Robberies at PETCO Store (Counts 5 Through 8)

            In the evening of January 31, defendant entered the PETCO store wearing a black beanie over her face and waving a gun.  Several customers left the store.  Defendant ordered employee Krista Scott to open her cash register.  Defendant pressed her gun into Scott's back and had her empty the contents of the cash register into a bag.

            Defendant told employees Patricia Anderson and Erin Herrera to open another cash register.  Defendant pointed her gun at Anderson and told her to get down.  Herrera put her cash drawer on top of the register and then lay down on the floor.  Defendant, however, did not approach Anderson & Herrera's register or take the money.  Defendant left the store and got into a waiting car.

Scott testified that the gun was black, looked like a real semiautomatic handgun, and felt real.  Anderson, a gun owner herself, testified that the gun was a black semiautomatic handgun.  It did not appear to Scott, Anderson, or Herrera that defendant was being forced to commit the robberies.

F.  Robberies and Assaults at Subway Restaurant

In the afternoon of February 2, defendant entered a Subway Restaurant, pulled out a gun, and yelled for the employees to get on the floor.  She told employee Jeana Edmondson to give her money from the cash register or she would blow Edmondson's head off.  Edmondson opened the register and gave defendant the money.

Defendant then told Edmondson to open the safe; Edmondson said that employee Robyn Riggs knew the combination.  Riggs crawled to the safe and opened it.  Defendant kicked her and told her to hurry up.  Riggs gave defendant the money from the safe.

Edmondson described defendant's gun as a small, black, semiautomatic gun with a dull finish; the gun looked real.  Riggs described the gun as a small, black, semiautomatic weapon that looked real, but was smaller than a police-issued weapon.  Neither Edmondson nor Riggs saw defendant do anything that led them to believe she was robbing the store involuntarily.

G.  Defendant's Arrest and Custodial Statement

Defendant was arrested on February 8 when she was crossing the border from Mexico, where she had gone with Kevin McGuire and another man because she was having â€