People v. McCullough

Opinion

SMITH, Acting P. J.

A jury found defendant Mark Donald McCullough guilty of robbery in an inhabited dwelling (Pen. Code, §§ 211, 212.5, subd. (a)),

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assault with a deadly weapon (§ 245, subd. (a)(1)) and false imprisonment (§ 236), not reaching agreement on firearm-use enhancements on each count (§ 12022.5, subd. (a)). The court then separately tried a prior-serious-felony allegation. (§§ 667, subd. (a), 1192.7, subd. (c).) Finding it true, the court denied defendant’s motion for new trial and sentenced him to an aggregate term of 11 years in state prison.

The issues raised here are those raised on the new trial motion, and their resolution does not require a detailed recital of the trial evidence.

All charges stemmed from an assault on Allen David Hawkins one night in January 1991 inside a Richmond apartment. The prosecution’s theory was that defendant beat, tied up and robbed Hawkins, with help from Billy Proffitt and 15-year-old Amy M. (who testified under immunity). Defendant’s story was that he fought with Hawkins over Amy but that Amy and Proffitt alone assaulted, bound and robbed Hawkins.

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Defendant contends his conviction for residential robbery (§ 212.5) cannot stand because the “residence” in this case was his own. We must

[1300]

imply an exception for own-residence robbery, he urges, by analogy to the own-residence exception implied in

People

v.

Gauze

(1975) 15 Cal.3d 709 [125 Cal.Rptr. 773, 542 P.2d 1365]

(Gauze),

for residential burglary (§ 460). The parties debate whether the evidence shows the apartment here to be defendant’s, but we find no need to resolve that dispute. The conviction stands even if defendant resided there.

Division Three of this district squarely held in