P. v. McNamara CA3

Filed 8/8/13 P. v. McNamara CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C072196

Plaintiff and Respondent, (Super. Ct. No. NRC82003)

v.

EDWARD EUGENE MCNAMARA,

Defendant and Appellant.

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

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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 motion for a new trial based on juror misconduct and