P. v. Ray

Filed 8/25/06 P. v. Ray CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Laura S. Kelly, 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, Assistant Attorney General, Garrett Beaumont, Gil Gonzalez and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Vietta Lee Ray was convicted by a jury of second degree robbery. We reject each of defendant's challenges to the judgment of conviction, as detailed below, and affirm.

First, defendant argues the trial court erred by failing to grant her request for a substitution of appointed counsel. Having reviewed the transcript, we conclude the court provided defendant ample opportunity to present the grounds for her substitution request and correctly denied the request when defendant failed to do so.

Second, defendant argues the trial court erred by refusing to permit some of her proposed evidence of domestic violence by her boyfriend, codefendant Weldon Griffin. Although the court erred by excluding the evidence, the error was harmless.

Finally, defendant argues the trial court improperly instructed the jury that she bore the burden of persuasion on the duress defense. In Dixon v. United States (2006) ___ U.S. ___ [126 S.Ct. 2437], the United States Supreme Court held the duress defense does not controvert any element of the crime and therefore the government does not bear the burden of negating it. The trial court's instructions in this case were proper.

Statement of Facts

On October 22, 2004, Gerardo Bernal was working at a Shell gas station in San Juan Capistrano. At approximately 11:30 p.m., Bernal noticed a white Chrysler Sebring convertible at pump number eight. The car had red, white, and blue license plates, which were not issued by California. Defendant was trying to use the pump, and then aggressively asked what was wrong with it. Defendant provided a debit card to Bernal, and Bernal had defendant enter the cashier's booth to key in her personal identification number. Defendant's debit card was rejected despite several attempts to process it. Bernal told defendant the system might not be working because the banks were updating their transactions. Defendant told Bernal she could not go anywhere without gas, and she would â€