People v. Subielski

Opinion

PANELLI, P. J.

Defendant Jason Subielski appeals from a judgment of conviction entered on jury verdicts finding him guilty of robbery (Pen. Code, § 211)

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, assault with a deadly weapon, a sawed-off shotgun (§ 245, subd. (a)), and possession of a sawed-off shotgun (§ 12020). The jury further found that a handgun had been used in the commission of the robbery (§ 12022, subd. (a)). He contends that the trial court 1) improperly instructed the jury on the burden of proof of his duress defense; and 2) failed to instruct the jury

sua sponte

that evidence of duress could negate the specific intent required for a robbery conviction. For reasons explained below, the judgment is affirmed.

Facts

On July 14, 1983, at approximately 3 a.m., defendant, who was wearing a clown mask and carrying a sawed-off shotgun, together with Randal Wolfenbarger, who was wearing a nylon stocking mask, entered the 7-11 store in Toro Park, Monterey County. Defendant pointed the shotgun at the clerk, Kevin Olson (Olson), and ordered him to the back of the store. Defendant, with the two men close behind, walked to the back of the store. Defendant

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then told Olson to “get on the floor,” after which Olson was hit about the shoulders and head by one of the men, causing him to momentarily lose consciousness. Olson heard the defendant order Wolfenbarger to get the money out of the register, but the register wouldn’t open. One of the men then tried to open the office door, but was unable to do so. When Olson heard the men leave, he crawled to the phone and dialed 911.

Shortly thereafter, Sergeant Charles Lowery of the California Highway Patrol, after hearing a call regarding a robbery of the 7-11 store, effected a stop of a vehicle a short distance from the store. Defendant, Wolfenbarger, and Wolfenbarger’s girlfriend, the occupants of the car, were placed under arrest. Items found in the car included a lead pipe, a Halloween mask, a set of nylons, a sawed-off shotgun, and a clip containing .22 ammunition.