P. v. Wilson

Filed 7/12/06 P. v. Wilson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge. Affirmed.

Robert H. Pourvali, 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, Senior Assistant Attorney General, Mary Sanchez and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Damion Wilson appeals his conviction of first degree burglary. He asserts two instances of prosecutorial misconduct, and also claims the court abused its discretion in refusing to strike his prior conviction. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Janyce Greenland lived in an apartment in Tarzana with her boyfriend, Tillman Pink, who managed the apartment complex. On June 29, 2004, arrangements were made for Ms. Greenland to show an apartment to a woman. The woman and appellant met Ms. Greenland in front of the apartments. Greenland had her one-year-old daughter with her. She told the couple to wait downstairs while she retrieved a key from her own upstairs apartment.

Ms. Greenland and her daughter entered her apartment. Greenland locked the door behind her, and looked for the key to the vacant apartment. She was unable to find it. As she opened the door to return to the waiting couple, appellant forced his way into her apartment. He pointed a gun at her and threatened to shoot her if she screamed or tried to run.

Appellant asked where the money was. He went to the master bedroom, and forced the locked door open. He looked through the dresser drawers, under the mattress, and in the armoire. Appellant pulled Ms. Greenland and her daughter into a room that was used as an office, and looked through some drawers and closets. Then he pulled them into the dining room. He rifled through Greenland's purse, pulled out her work identification card, and told her if she called the police, he knew where she worked. In the living room, he picked up Mr. Pink's briefcase, which was locked. He asked what was in it. Greenland told him it was brand new, and he put it down.

Appellant forced Ms. Greenland and her daughter into the master bedroom. He ordered them to lie face-down on the floor at the foot of the bed, and then he left the apartment. After a few minutes, Ms. Greenland ran to a neighbor's apartment and called 911. She told police that appellant had taken a watch which she believed was worth $15,000.

At a photographic lineup some months later, Ms. Greenland identified appellant as the intruder. He was charged with robbery and, by amended information, with first degree burglary. It was alleged that he personally used a firearm, and that he had a prior strike. The jury found him not guilty of robbery, but guilty of first degree burglary. The firearm use allegation was found true. The court denied appellant's motion to strike the prior conviction allegation, and found it to be true. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims the prosecutor engaged in misconduct by misleading defense counsel as to the state of the evidence prior to opening statement. This contention involves a statement by the prosecutor to defense counsel on the morning of trial that he had just talked to Janyce Greenland who â€