P. v. May
Filed 8/28/06 P. v. May CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIRST APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEONARD MAY, Defendant and Appellant. | A111432 (Alameda County Super. Ct. No. CH33605) |
Defendant Kevin May was found guilty following a jury trial of one count of second degree robbery, two counts of possession of a firearm by a felon, and one count of carrying a loaded firearm. On appeal, he contends the trial court erred in failing to instruct the jury on third party culpability, arguing that (1) the trial court had a sua sponte duty to so instruct the jury, or (2) alternatively, his counsel provided ineffective assistance by failing to request such an instruction. We disagree and affirm.
I. Procedural Background
On March 11, 2003, the Alameda County District Attorney filed an information charging defendant with one count of second degree robbery in violation of Penal Code section 211[1] (count I), with an allegation that he personally used a firearm within the meaning of section 1203.06, subdivision (a); two counts of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (counts II and V); one count of possession of a concealed firearm by a person previously convicted of assault in violation of section 12025, subdivision (b)(1) (count III); and one count of carrying a loaded firearm in a vehicle in violation of section 12031, subdivision (a)(2)(A) (count IV). The information also alleged that defendant had suffered three prior felony convictions and had served a prior prison term within the meaning of section 667.5, subdivision (b). The following day, defendant pleaded not guilty to the charges and denied the allegations.
On May 9, 2005, the prosecution filed a first amended information, adding an allegation that defendant had suffered a fourth prior felony conviction. On May 11, 2005, a jury was impaneled, and on May 23, 2005, trial commenced before the Honorable Jo-Lynne Lee.[2] Testimony was presented over a period of six days, with the prosecution calling fourteen witnesses and the defense calling six.
On June 2, 2005, the jury found defendant guilty on counts I, II, IV, and V, and found the personal use allegation as to count I to be true.[3] Following entry of the verdicts, defendant waived his right to a jury trial on the prior conviction and prison term allegations and admitted three of the four prior felony convictions.
On August 26, 2005, the court sentenced defendant to an aggregate term of 14 years, 4 months in state prison.This timely appeal followed.
II. Factual Background
A. Prosecution's Case
Brent Ambers worked at his family's Arco am/pm gas station at the corner of 98th Avenue and International Boulevard in Oakland. As part of the business operations, he and his mother were responsible for counting receipts from the previous day and taking the money to the bank for deposit. Typically, the bills would be rubber banded into bundles of $25 or $100; if a bundle contained an amount other than $25, Ambers â€
