People v. Metters, A074986

Citation61 Cal.App.4th 1489,72 Cal.Rptr.2d 294
Decision Date10 March 1998
Docket NumberNo. A074986,A074986
CourtCalifornia Court of Appeals
PartiesPreviously published at 61 Cal.App.4th 1489 61 Cal.App.4th 1489, 98 Cal. Daily Op. Serv. 1756, 98 Daily Journal D.A.R. 2445 The PEOPLE, Plaintiff and Respondent, v. James R. METTERS, Jr., Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, John R. Vance, Jr. Deputy Attorney General,for Respondent.

RUVOLO, Associate Justice.

I. INTRODUCTION

Appellant James R. Metters, Jr. was convicted of the admitted robbery of a Wendy's restaurant in Oakland that occurred on June 13, 1994. At trial, appellant contended he was forced to commit the crime only because of duress and out of necessity created when drug dealers to whom he owed money threatened to "do a drive-by" on appellant and his family if he did not pay them what was owed by 9 p.m. Appellant claims error in the trial court's refusal to instruct on the legal defenses of duress and necessity. He further contends that his constitutional rights were violated when the court dismissed a juror during deliberations known to be the sole holdout for a not guilty verdict, and by the court's use of the 1994 revised CALJIC No. 2.90 jury instruction on reasonable doubt. Last, he asserts sentencing error, including a claim that the length of his sentence (35

years) constituted cruel and unusual punishment. We affirm.

II. BACKGROUND

On June 13, 1994, appellant ordered food at a Wendy's restaurant from the cashier, Joyce Wilson. When Wilson asked for payment, appellant announced it was a robbery and that he had a gun. He told her "not to move because he wasn't go[ing to] hurt [her]" and directed Wilson to "give him all the 20's." Appellant's right hand was wrapped in cloth, and he held it in a manner which simulated that he held a gun. Believing he was armed, Wilson gave appellant the money in the cash register. After appellant left, Wilson reported the incident to her manager. The manager relayed the information to Oakland Police Sergeant Barney Rivera, who fortuitously was stopped at the Wendy's drive-through window. Sergeant Rivera pursued appellant and arrested him several blocks away. Nearby, Sergeant Rivera recovered appellant's rolled-up coat and $383 in cash.

An information was filed charging appellant with robbery (PEN.CODE, § 211)1 and alleging enhancements based on two prior robbery convictions. (§ 667, subd. (a).)

Trial commenced in February 1996. At the conclusion of the prosecution's case, appellant made the following offer of proof in support of jury instructions on the defenses of duress and necessity: On the day of the holdup, appellant was abducted by drug dealers to whom he owed money. He was permitted to make telephone calls to attempt to raise the money. He contacted his aunt, who brought $50 to the dealers. They took the $50 and agreed to free appellant after warning him that he and his family would be killed unless he repaid the rest of the money that night. Appellant committed the robbery in order to prevent the dealers from killing him and his family.

"As a backdrop," the offer of proof included facts predating the date of the robbery. In February 1994, appellant was shot at by the same drug dealers. He contacted the police and attempted to have his parole revoked because he feared for his life. Appellant met with his parole agent, who placed him on a waiting list for a halfway house in another part of Oakland. He lost this placement when he was erroneously transported to San Quentin State Prison on a parole hold. Upon his release, appellant was forced to return to his old neighborhood until another placement became available.

The court tentatively denied appellant's request for instructions on duress because the threat was not immediate and the drug dealers did not direct appellant to commit the robbery. The court also expressed concern about the applicability of the necessity defense because appellant had the alternative of reporting the incident to the police. Appellant augmented his offer of proof, stating that his failure to report the incident was motivated by fear of retaliation, and his belief that the police would not be able to protect him.

Thereafter, at appellant's request, an Evidence Code section 402 hearing was held "for the record." At the hearing Oakland Police Sergeant Sharon Banks testified that she had interviewed appellant on February 28, 1994, shortly after the previous shooting incident had occurred. During their interview, appellant told her someone had shot at him. Appellant also informed Banks that he was in trouble because he owed drug dealers $500 for crack. He requested that Banks violate his parole for drug possession so he could be sent back to prison. She passed this information along to his parole agent. Banks took no further action because appellant did not request an investigation of the shooting, did not request police protection, and did not provide her with sufficient facts to commence an investigation.

California Department of Corrections Parole Agent Ramon DeCastro testified appellant met with him earlier in 1994 to request assistance with housing and employment. Appellant told him he wanted to get out of his current living environment. DeCastro arranged for appellant to be placed on a waiting list for a halfway house. Appellant Appellant's supervisor at the Old Spaghetti Factory testified that appellant was employed there sometime during April through June 1994, that he earned $5.45 per hour for 15-20 hours of work per week, and that he was paid every other Sunday. The company does not give salary advances to its employees.

obtained a job at the Old Spaghetti Factory in Oakland. Appellant lost his placement on the waiting list when he was transported to San Quentin State Prison on a parole hold. Later, appellant was released because there was no evidence of parole violations. Although DeCastro received information concerning appellant's conversation with Sergeant Banks, he did not recall appellant contacting him to discuss the shooting incident or his request to return to prison.

Appellant's aunt, Mary Metters, testified that she lived near an area where illicit drug were sold. She had "heard" of a number of instances where drug dealers retaliated against people who reported them to the police. On the date of the robbery, appellant telephoned her and asked her to bring $50 to a specified location. He told her that he "owed some guys some money" and that "he was being held against his will." She delivered the money to appellant between 4 and 5 p.m. Appellant's aunt did not contact the police because she feared retaliation. If she thought appellant's life was in danger, appellant's aunt would have given him whatever money she "had ... to give." Although she did not recall the exact amount of money she had on deposit at the bank that day, appellant's aunt testified "It could have been in the area between [$]2 or $300."

After hearing this testimony, the court adopted its tentative ruling that appellant was not entitled to instructions on duress. The court also rejected appellant's request to instruct the jury on the necessity defense because appellant had two legal alternatives: (1) to call the police, or (2) to obtain additional money from his aunt. 2

Appellant testified on his own behalf. 3 According to appellant, he had owed $500 to drug dealers for approximately three or four years. At approximately 10:30 a.m. on the morning of the Wendy's robbery, these drug dealers kidnapped him at gunpoint. They held him for four hours while he arranged for his aunt to bring him $50 to partially pay the debt. At approximately 8 p.m., they agreed to release him as long as he returned with $200 within one hour. On direct examination, appellant testified that the drug dealers told him to "get [the rest of the money] however I could get it, do whatever I had to do, ... " He later explained that the drug dealers told him "to go out and get the money, they didn't care what I had to do to get it. If I had to rob somebody, rob somebody, do whatever I had to do to get the money." If appellant didn't return with the money, the dealers threatened to "do a drive-by" at appellant's aunt's house.

Appellant had resigned from his job with the Old Spaghetti Factory shortly before the Wendy's incident, and believed he had no legitimate way of obtaining the money. He did not seek police assistance because appellant did not think they could protect his family even if they could protect him. Appellant explained that he did not believe the police had protected him successfully in the past.

On cross-examination, appellant admitted that upon his release by the drug dealers, he did not attempt to warn his family of the threatened "drive-by," nor did he approach his aunt to borrow additional funds. Appellant testified that he decided to commit a robbery to protect himself and his family. He admitted committing the Wendy's robbery, but claimed he did not intend to permanent deprive Wendy's of the stolen money. On cross-examination, appellant acknowledged that he had no intent to return the stolen money to Wendy's. Following his arrest appellant did not report the threatened "drive-by" to the police, nor did he take During the course of jury deliberations, the court excused one of the jurors for misconduct and replaced her with an alternate. 4 The jury was instructed that one of its members had been excused for legal cause and that they should not consider this fact for any purpose. The reconstituted jury was directed to begin...

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  • The People v. Hightower
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Enero 2000
    ...Court. (People v. Rodriguez (1998) 65 Cal.App.4th 1156, review granted Nov. 18, 1998 (S073219), cause ordered held pending disposition in Metters, infra, and People v. Martinez (1999) 20 Cal.4th 225 [concerning asportation element in offense of kidnapping a minor]; People v. Metters (1998) ......
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    • California Court of Appeals Court of Appeals
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    ...(1998) 65 Cal.App.4th 1156, 77 Cal.Rptr.2d 279, review granted Nov. 18, 1998 (S073219), cause ordered held pending disposition in Metters, infra, and People v. Martinez (1999) 20 Cal.4th 225, 83 Cal.Rptr.2d 533, 973 P.2d 512 [concerning asportation element in offense of kidnapping a minor];......
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