People v. Miramon

Opinion

BEACH, J.

A jury found appellant guilty of burglary (Pen. Code, § 459) and robbery (Pen. Code, § 211). The jury also found to be true the allegations that appellant had used a knife in committing the two offenses (Pen. Code, § 12022, subd. (b)) and that he had served a prior prison term for a felony conviction (Pen. Code, § 667.5, subd. (b)). The trial court sentenced appellant to state prison.

[122]

Appellant appeals, claiming (1) improper instruction of the jury on the offense of robbery, (2) insufficient evidence to sustain the robbery conviction, (3) prosecutorial misconduct, and (4) improper sentence enhancement. We affirm.

Facts

At approximately 1:30 p.m. on September 16, 1980, Daniel Sherman unlocked the front door of his second-floor apartment at 1518 10th Street in Santa Monica. As he was about to enter, he noticed some marring on the weather-stripping of the door. Inside the apartment, the hall closet, which he always kept closed, was open. Alerted by noises coming from the bedroom, Sherman looked into the bedroom. He observed two Mexican individuals, a man and a woman, standing over his stereo, which was laid out on the floor. The man was appellant. Appellant had a knife in his hand. Sherman ran out of the apartment, yelling, “Call the police.”

Sherman ran down the stairs and entered the first-floor apartment where his mother, sister and grandmother were living and which happened to be open at the time. He told them there was somebody in his apartment and to call the police. He then saw appellant and his female companion run down the stairs. The woman pulled a crowbar from her purse. She and appellant, followed by Sherman, who was soon joined by Ron Cheney, ran towards the 9th Street alley. At one point during the chase, appellant turned around, holding a knife in such a manner as if ready to use it. Sherman grabbed a bicycle because he feared that appellant would attack him with the knife. Others, including Sherman’s brother Jim, joined in the chase.

Eventually, the pursuers caught appellant. In the ensuing struggle, Cheney removed the knife from appellant’s hand, whereupon appellant pulled another knife out of his pocket. Sherman recognized the knife as one of the knives he kept in his hall closet. After taking the knife from appellant, the Sherman brothers and Cheney slit appellant’s pockets open to make sure he had no other weapons on him. They found a gold chain, a watch, a silver bracelet, rings and more knives, all of which had been taken from the Sherman apartment. Shortly thereafter, the police arrived and took appellant and the woman into custody. Daniel Sherman went back to his apartment, accompanied by a police officer. Items which he usually kept in his bedroom closet were all over the floor. His pillowcase was stuffed with all his camera equipment and his clock radio. On the bed were his typewriter and tape deck, while his stereo receiver was on the floor. All of these items had been taken from their proper places. The television in the living room was unplugged, had a cord wrapped around it and the antenna disconnected, whereas it had been hooked up and in operating condition when Sherman left his apartment.