P. v. McNamara
Filed 8/8/13 P. v. McNamara CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Tehama)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD EUGENE MCNAMARA,
Defendant and Appellant.
C072196
(Super. Ct. No.
NRC82003)
This is an
appeal pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende).
On May 25, 2011, the victim rented a
motel room and shared it with Torijean Bess and Bess’s young son, who the
victim had recently met. At the motel,
the victim and Bess met another couple, Ashley Turner and Heath Chaffin, who,
along with their child, occupied the room two doors down. After the victim and Bess drank with Turner
and Chaffin most of the afternoon, the victim decided to pay for $100 worth of
methamphetamine and Turner knew where to buy it. Turner and Bess left to buy the drugs. During the drive, Bess told Turner the victim
just borrowed a lot of money ($2,000) from his grandfather and bought a prepaid
credit card. Bess wanted some of the
money. They stopped so Turner could
visit with William Bishop in order to buy the drugs but Bishop did not have
any. Turner, Bess, and Bishop went to
another location and, during the drive, they talked about the victim’s money
and how easy it would be to get his money.
They stopped and Bishop went into a friend’s house. Bishop returned with defendant Edward Eugene
McNamara. Turner, Bess, Bishop, and
defendant went back to the motel room.
During the drive, they talked about the victim’s money and Bess bragged
about how much the victim had. In the
victim’s motel room, Turner, Bess, Bishop, defendant, Chaffin, and the victim
used methamphetamine and drank. The next
morning, defendant displayed a knife which previously belonged to Bess and
demanded the victim’s money ($1,200 to $1,400), his prepaid credit card worth
$500, and his personal identification number to use the card. Fearing for his life, the victim turned over all
the items demanded. Defendant then
ordered the victim to leave the motel room and threatened him if he called the
police. The victim left the room, walked
to a gas station, and called the police.
When the police arrived at the motel, defendant drove off with Bess,
leading the police on a high speed chase.
Defendant got out of the car and fled on foot.
At trial,
the victim testified as did Bess and Turner.
Bess and Turner both testified against defendant under an agreement with
the prosecutor concerning the charges pending against them. Prior to trial, defendant threatened Bess to
change her story.
A jury
convicted defendant of first degree
robbery (Pen. Code, § 211; undesignated section references are to this
code; count I) and conspiracy to commit robbery (§ 182; count II). In connection with count I, the jury found
that the dwelling was inhabited and that defendant personally used a deadly and
dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)). In bifurcated proceedings, defendant admitted
seven prior prison terms (§ 667.5, subd. (b)).
After trial
and before sentencing, the trial court granted defendant’s motion to substitute
counsel (People v. Marsden (1970) 2
Cal.3d 118) and, after an evidentiary hearing, denied defendant’s
misconduct and insufficiency of the evidence.
The court sentenced defendant to state prison for an aggregate term of
14 years, that is, the upper term of six years for robbery, a consecutive
one-year term for personal use of a deadly weapon, and one year for each of the
seven prior prison terms. For
conspiracy, the court imposed but stayed sentence. The court awarded a total of 52 days of
presentence custody credit (46 actual and six conduct days).
Defendant
appeals.
We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal. (Wende, supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.
Defendant
filed a supplemental brief raising
juror bias and ineffective assistance of counsel. With respect to ineffective assistance of
counsel, defendant complains that his attorney would not “let [defendant] have
any say in the juror selection†and there were “several issues†that defendant
wanted his attorney to do “but he would not address them to the court’s
motion.†(Sic.) Defendant does not
specify what he wanted to say that his counsel ignored or what those issues
were that his attorney failed to address.
Based on our review of the record, ineffective assistance of counsel is
not established. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80
L.Ed.2d 674, 693-694, 695-696]; People v. Ledesma (1987) 43 Cal.3d 171,
216-217.)
Defendant
claims the “whole jury panel was bias[ed]†against him because “one juror knew
[him] while one juror was a friend of [his] leading Det[ective] involved in
[his] case,†another juror was “really good friend[s] with Judge Garaventa†who
presided over trial, the jurors “had friends that worked at the jail†where
defendant was in custody, and the jurors were “all victim[s] of crimes.â€
“Demonstrated
bias in the responses to questions on voir dire may result in a juror being
excused for cause; hints of bias not sufficient to warrant challenge for cause
may assist parties in exercising their peremptory challenges.†(In re
Hitchings (1993) 6 Cal.4th 97, 111.)
The fact that a juror may have been a victim of a crime or may know a
party, a witness, or the judge does not necessarily render the juror
biased. “It is not necessary that jurors
be totally ignorant of the facts and issues involved in the case; it is
sufficient if they can lay aside their impressions and opinions and render a
verdict based on the evidence presented in court. [Citation.]â€
(People v. Fauber (1992) 2
Cal.4th 792, 819.) Defense counsel
exercised seven of his 10 peremptory challenges before accepting the jury. (Code Civ. Proc., § 231, subd. (a).) “The failure to exhaust peremptories is a
strong indication ‘that the jurors were fair, and that the defense itself so
concluded.’ [Citation.]†(People
v. Price (1991) 1 Cal.4th 324, 393; People
v. Daniels (1991) 52 Cal.3d 815, 854.)
Our review of the record discloses no juror bias.
We note an
error in preparation of the abstract of judgment. Defendant admitted seven prior prison term
allegations and was sentenced to one year for each. The amended abstract erroneously reflects
seven years for one prior prison term.
We will order the abstract corrected accordingly.
Having undertaken an examination of
the entire record, we find no arguable error that would result in a disposition
more favorable to defendant.
DISPOSITION
The trial
court is directed to prepare a corrected abstract of judgment reflecting that
one year was imposed for each of the seven prior prison terms defendant
admitted and to forward a certified copy to the
NICHOLSON , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
