P. v. Nolette

 

 

 

 

Filed 1/29/07  P. v. Nolette CA2/5

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 977.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

 

 

THE PEOPLE,               Plaintiff and Respondent,               v.   DEBRA NOLETTE et al.,               Defendants and Appellants.

B188125         (Los Angeles County       Super. Ct. No. MA030309)

 

 

            APPEAL from a judgment of the Superior Court of Los Angeles County,
William R. Chidsey, Jr., Judge.  Affirmed with directions.

            Linda Acaldo, under appointment by the Court of
Appeal, for Defendant and Appellant Charles Wilkerson.

            Lise M. Breakey, under appointment by the Court
of Appeal, for Defendant and Appellant Debra Nolette.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys
General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen,
and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent. 

I. 
INTRODUCTION

 

            Defendants, Debra
Nolette and Charles Wilkerson, appeal from their conviction for assault with a deadly weapon by means likely
to produce great bodily injury.  (Pen. Code,^[1] § 245, subd. (a)(1).)  Mr. Wilkerson also
appeals his convictions for three counts of child abuse (§ 273a, subd. (a)) and
one count of criminal threats.  (§
422.)  Ms. Nolette also appeals from her convictions for three counts of
misdemeanor child abuse.  (§ 273a,
subd. (b).)   In addition, defendants appeal from the trial court's findings
that both Mr. Wilkerson and Ms. Nolette were each previously convicted of
serious felonies and served two prior prison terms.  (§§ 667, subds. (a)(1),
(b)–(i), 667.5, subd. (b), 1170.12.)  Ms. Nolette argues there was insufficient
evidence to support her convictions in counts 3, 4, and 5.  Ms. Nolette further
argues that the trial court improperly
failed to sua sponte instruct the jurors on the specific intent element of
aiding and abetting and allowed the use of a prior conviction, which was remote
in time, to impeach her.  Mr. Wilkerson argues the trial court improperly
refused to exercise its discretion to strike his prior serious felony
conviction.  Mr. Wilkerson joins Ms. Nolette's arguments to the extent they
accrue to his benefit.  We affirm the judgment.

 

II.  FACTUAL AND
PROCEDURAL BACKGROUND

 

            We view the evidence in a light most favorable
to the judgment.  (Jackson  v. Virginia (1979) 443 U.S. 307, 319;
People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband
(1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31
F.3d 907, 908-909.)  Teresa Donahue lived with her husband, Michael Donahue,
and their son, Beau, in a mobile home at 18304 East Avenue T-8 in Llano,
California on November 11, 2004.  Joanne Hannigan and her husband, William
Hannigan, were acting as caretakers for the property on which the Donahues
resided as well as the adjacent property at 18484 East Avenue.  Their daughter,
Lena Hill, and her children lived in a mobile home at 18484 East Avenue on
occasion.  Ms. Hill assisted Ms. Hannigan in overseeing the property.  On November 11, 2004, Ms. Hill lived with her children, Bradley Hill, Jr. and two-year-old
twins, Matthew and Brandon Hannigan in Lake Los Angeles.  However, Ms. Hill
watched over the East Avenue property and went there often.  The owners had
various cars and other personal items on the property.  During the three weeks
preceding November 11, 2004, the Donahues reported to Ms. Hannigan and Ms. Hill
that a fence had been cut, things were missing, and there were individuals on
the property.  Ms. Donohue also saw a blue Blazer truck and a white truck on
the property at times.

            On approximately November 9 or 10, 2004, Ms.
Hill went to the property in response to a call from the Donahues.  Ms. Hill
encountered Robert Downs on the property.  Ms. Hill told Mr. Downs that her
parents were the caretakers for the property.  Ms. Hill also told Mr. Downs
that he should not be on the property.  Mr. Downs told Ms. Hill that he
would pack his things and leave.  On November 11, 2004, Ms. Hannigan and Ms. Hill went to the property, where they, with the help of the Donahues, moved the
intruders' belongings.  Ms. Hannigan and Ms. Hill then went to an address on 185th
Street, where they returned a dog belonging to someone in the group and
advised Mr. Wilkerson, Mr. Downs, Ms. Nolette, and Kristy Kosche  to pick up their belongings and stay off the
property.  Mr. Donahue had previously warned Mr. Downs on two or three
occasions to stay off the property.  Ms. Nolette was present at the time of one
of those conversations.  Mr. Donahue had also previously spoken to Mr.
Wilkerson.  Mr. Wilkerson stated he had permission from Ms. Hill and Ms.
Hannigan to remove some items from the property.  Ms. Hannigan had never given
these four individuals, Mr. Downs, Ms. Nolette, Ms. Kosche, or Mr.
Wilkerson, permission to be on the property. 

            During the three weeks prior to November 11, 2004, the Donahues rewired the chain link fence on the property to secure it
where it had been opened.  On one occasion, the Donahues hired another man to
place a â€