People v. Lamb

California Court of Appeal Nov 14, 1988 No. D006966Published

Before: Kremer

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Holding. The trial court acted within its discretion by instructing the jury both before and after closing arguments and by imposing the middle term sentence, as no additional reasons are required for the middle term.

Issues

Whether the trial court abused its discretion or violated equal protection by instructing the jury both before and after closing arguments.
Whether the trial court abused its discretion in imposing the middle term sentence for robbery.

Disposition. affirmed

Quotations verified verbatim against the opinion

“While it may be general practice for courts to “charge the jury” or “instruct the jury” following argument, when to instruct a jury is a matter within the trial court’s discretion.”

“When the middle term is imposed, no additional reasons are required.”

[399]

Opinion

KREMER, P. J.

A jury convicted Daniel Lamb of robbery (Pen. Code,

§ 211) while using a deadly weapon (§ 12022, subd. (b)). The court sentenced him to serve four years in prison: the middle term of three years for robbery enhanced by one year for use of the weapon. Lamb appeals.

Around 11 p.m. on May 12, 1987, Dennis English and Lance McKinney, two sailors in downtown San Diego, asked a man if he knew where to go for entertainment. The three walked together and talked, and a fourth man, Lamb, joined them. Lamb held a box cutter to English’s throat and demanded money. English gave him $40. Lamb asked for more. Meanwhile, the first man English and McKinney spoke to said, “Get his wallet.” Lamb then said to McKinney, “Give us your money too or I am going to cut him.” English managed to escape and ran down the block, seeing a police officer. Meanwhile, McKinney began to back away from Lamb and his accomplice and the assailants walked off. The assailants split up and McKinney followed Lamb until English and an officer arrived. The officer arrested Lamb.

During trial, at the conclusion of testimony, the court gave the jury 25 general instructions. It then permitted counsel to make closing argument which it followed by giving the jury six instructions applying to the specific crime before it.

Lamb contends the trial court denied him equal protection of the law in giving instructions before and after counsel argued and abused its discretion in imposing the middle term.

Lamb argues the Legislature has set a procedure for charging the jury after argument (§ 1093, subd. (f)). Subdivision (f) provides: “The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the

People v. Lamb

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KREMER, P. J.

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