P. v. Reed

Filed 6/30/06 P. v. Reed CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

A jury convicted appellants Lawrence Reed, Jr. and Claude Burdett Burton, Jr. of multiple counts of aggravated robbery, assault, and other offenses, many with firearm enhancements. (See Pen. Code,^[1] §§ 211, 220, 236, 243.4, subd. (a), 245, subd. (a)(1)-(2), 459, 496, subd. (a), 12022, subd. (a)(1), 12022.5, subds. (a)-(b), 12022.53, subd. (b).) Reed was sentenced to a term of 45 years in state prison; Burton received a 14-year prison sentence. Both appeal. Reed contends that (1) he was improperly convicted of two counts of receiving stolen property instead of one and (2) his abstract of judgment incorrectly reflects two firearm use enhancements. For his part, Burton contends that (3) the evidence was insufficient to support two counts of receiving stolen property; (4) the trial court erred by giving CALJIC No. 2.15 to prove the aggravated robbery counts; (5) the trial court improperly denied his request to instruct the jury on the defense of duress related to the charges of aggravated robbery; and (6) the trial court failed to state reasons in support of his consecutive sentences. Reed and Burton each joins in the arguments made by the other to the extent that the other's argument is applicable to his own case. We remand to allow some correction of the judgments. In all other respects, we affirm the judgments.

I. FACTS

Shortly before midnight on the night of April 8-9, 2004, Kevin Almlie answered a knock at the door of the Santa Rosa apartment he shared with Kyle Sammons and others. A female friend--Randi H.--was also visiting at the apartment that night. When Almlie opened the door, four young African-American men entered the apartment. Over the course of the next two hours, the intruders ransacked the apartment and took the victims' personal property.

The men were later identified as appellants Lawrence Reed, Jr. and Claude Burdett Burton, Jr. and their cohorts, Aaron Deshaun Tillis and Shaun Israel Joseph. Tillis--the first one of the intruders in the door--seemed to be in charge. He brandished a silver revolver and demanded marijuana. One of the intruders asked about a roommate who was out and one asked if any of the three victims had money. Shortly after entering, Tillis struck Almlie on the head with the gun. The electricity was off in all but the living room of the apartment, making it difficult to see all that was happening.

Reed ordered Sammons to lie on the living room floor and tied him up. While Sammons was being restrained, Tillis hit him in the eye with the gun. Tillis also pistol-whipped Almlie. Tillis and Reed ordered Almlie to accompany them as they searched the bedrooms. He saw them remove electronics and sporting equipment from the bedroom of two of his roommates.

Almlie was repeatedly struck with the gun over the course of the incident. Once, Reed put the gun in Almlie's mouth. Almlie was never tied up, but his head was covered with a sweatshirt that was taped onto him. Tillis and Burton compelled him to give up the personal identification number (PIN) for his ATM card.

Reed took Sammons's wallet from him and removed its contents, including his ATM card. Reed asked for his PIN. He referred to the gun, telling Sammons that its bullets could be in his head. Someone--perhaps Reed--stuck the gun in Sammons's mouth. When Sammons did not seem sufficiently cooperative, Reed^[2] hit him in the back of the head with what seemed to be a weapon.

Reed ordered Randi to remove her clothes. She refused, but when he persisted in his demand, she removed her jacket and handed it to him. He pat-searched her outer clothing. Burton emptied out her purse and removed about $300 in cash as well as her ATM card, her checkbook, cell phone and keys. Someone--either Burton or Tillis--ordered her to give him her PIN. Randi did so.

Burton took Randi to a bedroom to help search for money, without success. A few minutes later, he brought her back to the living room with Sammons. She was not blindfolded, but was ordered to lie face down on the couch so she could not look at the intruders. Reed touched her with a gun while she was on the sofa. Later, Randi was told to lie face down on the living room floor near Sammons. She did so and her hands^[3] were taped behind her back. Randi's bra and halter top were cut but not fully removed, exposing her back. She did not see who cut her clothing. As Reed spoke with her, she felt someone move her severed clothing to one side of her back.

A few minutes later, as Almlie sat on the couch, Reed accused him of trying to use his cell phone. Tillis struck Almlie again, this time on the side of his head, injuring his ear. Randi could see that Almlie was bleeding. Reed took Almlie's cell phone. On Tillis's order, Almlie surrendered his wallet. A while later, a towel was placed over Randi's head and secured with tape.

Tillis put a gun to Sammons's head and ordered him to take him to another apartment to find some marijuana or money. Joseph accompanied Tillis and Sammons upstairs, but no one in that apartment answered their knock. Reed and Burton remained behind with Almlie and Randi.

While Tillis and Joseph were gone with Sammons, Randi asked Burton if she could use the bathroom. He undid the tape on her hands so that she could get up from the floor. She lifted the towel wrapped around her head and found her way to the bathroom. She closed the door partway and--alone in the bathroom--she used the toilet. Randi pulled her pants back up. Then, Reed and Joseph came in. Reed ordered her to sit back down on the toilet, saying that they intended â€