People v. Newell CA2/6

Filed 12/19/13 P. v. Newell CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242664 (Super. Ct. No. BA379987-01) Plaintiff and Respondent, (Los Angeles County)

v.

MICHAEL NEWELL,

Defendant and Appellant.

Michael Newell appeals a judgment following conviction of second degree robbery, and assault by means likely to produce great bodily injury, with findings that he personally inflicted great bodily injury upon his victim, suffered five prior strike convictions, suffered four prior serious felony convictions, and served one prior prison term. (Pen. Code, §§ 211, 245, subd. (a)(1), 12022.7, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a), 667.5, subd. (b).)1 We affirm. FACTUAL AND PROCEDURAL HISTORY Danny Donatto was employed as a cashier at Frank's Liquor store located on Western Avenue in Los Angeles. During his longtime employment there, Donatto became familiar with liquor store customers, including Newell. Donatto described

1 All further statutory references are to the Penal Code unless otherwise stated. References to section 12022.7 are to the version in effect prior to January 1, 2012.

Newell, known as "C-Mike," as "friendly" and "a good customer." Newell visited the liquor store daily and "chitchat[ed]" with Donatto. During the mid-morning of December 20, 2010, Donatto was stocking the liquor cooler when he noticed Newell and another customer, "Sunshine," conversing outside the store. Sunshine looked through the window at Donatto, dropped his head, and walked away. Donatto then saw Newell pull a black beanie over his face and "burst[]" into the liquor store carrying a firearm in his left hand. Donatto quickly moved toward a bulletproof glass portion of the counter. As Donatto approached the counter, Newell caught up with him and tried to "hop over" the counter. When Newell jumped, Donatto knocked Newell's feet out from under him, but Newell landed on his feet. Donatto repeated the maneuver, but "missed." Newell's "momentum" continued forward, however, and the firearm went into Donatto's left eye. Donatto fell to the floor in pain, unable to see with his injured eye. Newell walked over Donatto, turned off the store lighting, and attempted to open the cash register. He called Donatto "a punk-ass bitch," and asked him to open the register. When Donatto raised himself from the floor, Newell ordered him to stay down. Newell remained by the register for several minutes and then left the store. Donatto arose from the floor, locked the front door, and telephoned the store owner, Seife Kidane. Kidane arrived shortly thereafter and found Donatto sitting on the floor, bleeding from his eye. Kidane inspected the store and found that the locked cabinet below the cash register had been pried open with a screwdriver and $2,800 was missing. A screwdriver lay near the cabinet. Kidane drove Donatto to the hospital. Despite immediate surgery, Donatto is now blind in his left eye. The day following the robbery, Kidane reviewed a surveillance video depicting a man of Newell's build entering the liquor store at approximately 9:50 a.m. on December 20, 2010. The man wore an unusual jacket that Kidane had seen Newell wear three or four times previously. Kidane saw the man "punch" Donatto in his left eye with