People v. Poynter CA3

Filed 11/24/15 P. v. Poynter CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C076585

v. (Super. Ct. No. 13F07093)

MARKICE YUVALDUVAN POYNTER,

Defendant and Appellant.

A jury convicted defendant Markice Yuvalduvan Poynter of first degree burglary, extortion, and receiving stolen property, and the trial court found two prior prison term allegations true. The trial court sentenced defendant to nine years eight months in prison.

1

Defendant now contends the trial court erred in failing to instruct the jury with CALCRIM No. 358, the cautionary instruction regarding his out-of-court statements. Concluding that any error was harmless, we will affirm the judgment. BACKGROUND Marcella W. lived in an apartment with her partner and the partner introduced Marcella to defendant. Marcella attended school, received financial aid, and claimed defendant knew when she received her aid payments. After Marcella’s partner went to jail for domestic abuse, defendant moved into the apartment across from Marcella. When Marcella would leave her apartment, defendant would call her names and brag that he carried guns, had been involved in a shootout, and had been charged with murder. He would threaten to hit her in the face. Defendant also started pushing his way into Marcella’s apartment without permission and demanding to borrow money. Marcella gave defendant money on “almost a daily basis,” explaining that she felt she had no other choice. When she asked him to pay her back, he pulled out a gun and took her money. One time when she said she did not have any, he punched her refrigerator, putting dents in it. On another occasion, defendant kicked in her door and said that she could not stop him. She called 911 but pretended to talk to someone else fearing defendant would hurt her. The apartment managers confirmed that Marcella had reported defendant kicking in her door, that defendant had admitted the same, and that defendant said he would fix the door. The next month, defendant demanded $100 from Marcella, telling her he was “going to get money from [her].” Marcella believed she had no choice because he had previously pulled a gun on her. Marcella responded that she only had checks. Defendant forced her to go with him to a check cashing business. When they arrived, Marcella asked for a payday advance but could not supply references or a phone number so her request was denied. Marcella and defendant returned to the business 30 minutes later.