People v. Avery CA2/5

Filed 10/28/14 P. v. Avery CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B252897

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA121558) v.

RONALD DEMETRES AVERY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Modified in part and remanded with directions. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Ronald Demetres Avery, of two counts each of kidnapping to commit robbery and second degree robbery. (Pen. Code, 1 §§ 209, subd. (b)(1), 211.) The trial court found defendant had sustained two prior convictions within the meaning of sections 667, subdivisions (a)(1) and (b) through (i), and 1170.12. Defendant was sentenced to 60 years to life in state prison. We modify the judgment. Upon remittitur issuance, there will be additional sentencing actions that must be taken.

II. THE EVIDENCE

Defendant and an accomplice accosted two Lowes Hardware Store employees— Kevin Hopp and Lindsay Noordman—as they prepared to unlocked the exterior doors to the business. It was 5:15 a.m. The building was located on Carmenita Road near Interstate 5 in Norwalk. It was adjacent to a public parking lot. Ms. Noordman testified defendant’s accomplice forced her at gunpoint up against an exterior wall and took her cellular telephone. Defendant ordered Mr. Hopp to: unlock and open the exterior doors; open a second set of doors; disarm the alarm system; and relock the exterior doors from the inside. Defendant told Mr. Hopp to, “[G]o to the cash room.” Defendant, the unidentified accomplice and the two victims continued into the store. They walked around the return cash registers and the customer service desk and into the manager’s office. The distance consisted of approximately 100 to 125 feet from the front door. A locked door in the manager’s office led to the vault. Defendant’s accomplice, who was armed with the gun, remained with Ms. Noordman in the manager’s office. Mr. Hopp, accompanied by defendant, unlocked the door to the vault and deactivated a second alarm. The vault was windowless. There were no emergency exits. Defendant ordered Mr. Hopp to open the two safes in the vault. Each safe had a time-delayed lock.