Fear Not Law Articles: P. v. Charette

P. v. Charette

Filed 1/9/07 P. v. Charette CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

DONALD JOHN CHARETTE,

Defendant and Appellant.

E039412

(Super.Ct.No. RIF112408)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed in part and reversed in part with directions.

Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Following a court trial, defendant was convicted of robbery (Pen. Code, § 211;^{^[1]} count 1) and petty theft with a prior conviction (§ 666; count 2). Both convictions were based on defendant's theft of a $3.99-tube of Fixodent from a Target store. Defendant admitted he had three prior serious felony convictions (§ 667, subd. (a)) and three prior strike convictions, based on three burglary convictions in 1977, 1978, and 1983 (§§ 667, subds. (b)-(e), 1170.12). The trial court struck the 1977 and 1978 prior strike convictions pursuant to defendant's Romero^{^[2]} motion, and sentenced defendant to 19 years in prison.^{^[3]}

Defendant appeals, contending that: (1) insufficient evidence supports his robbery conviction because there was no evidence he used force or fear in attempting to escape from the Target store with the stolen merchandise; (2) his conviction in count 2 for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery; (3) his Faretta^{^[4]} motion was erroneously denied; and (4) his 19-year sentence constitutes cruel and unusual punishment under the state and federal Constitutions.

The People concede, and we agree, with defendant's second contention that his conviction for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery. We find defendant's other contentions without merit. We therefore modify the judgment to reverse defendant's conviction in count 2, and affirm the judgment in all other respects.

II. THE EVIDENCE PRESENTED AT TRIAL

On September 17, 2003, Luverne Johnson was working as a â€

Description	Following a court trial, defendant was convicted of robbery (Pen. Code, S 211; count 1) and petty theft with a prior conviction (S 666; count 2). Both convictions were based on defendant's theft of a $3.99 tube of Fixodent from a Target store. Defendant admitted he had three prior serious felony convictions (S 667, subd. (a)) and three prior strike convictions, based on three burglary convictions in 1977, 1978, and 1983 (SS 667, subds. (b) (e), 1170.12). The trial court struck the 1977 and 1978 prior strike convictions pursuant to defendant's Romero motion, and sentenced defendant to 19 years in prison. Defendant appeals, contending that: (1) insufficient evidence supports his robbery conviction because there was no evidence he used force or fear in attempting to escape from the Target store with the stolen merchandise; (2) his conviction in count 2 for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery; (3) his Faretta motion was erroneously denied; and (4) his 19 year sentence constitutes cruel and unusual punishment under the state and federal Constitutions. The People concede, and court agree, with defendant's second contention that his conviction for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery. Court find defendant's other contentions without merit. Court therefore modify the judgment to reverse defendant's conviction in count 2, and affirm the judgment in all other respects.
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