People v. Sullivan

• Decision Date: 29 May 2007
• Docket Number: No. A109149.,A109149.
• Citation: 151 Cal.App.4th 524,59 Cal.Rptr.3d 876
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael John SULLIVAN, Defendant and Appellant.
• Court: California Court of Appeals

59 Cal.Rptr.3d 876

151 Cal.App.4th 524

The PEOPLE, Plaintiff and Respondent, v. Michael John SULLIVAN, Defendant and Appellant.

No. A109149.

Court of Appeal, First District, Division 1.

May 29, 2007.

As modified on denial of rehearing June 21, 2007.

Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allen R. Crown, Deputy Attorney General, for Plaintiff and Respondent.

SWAGER, J.

Defendant was convicted following a jury trial of six counts of robbery (Pen. Code, §§ 211-212.5).¹ The jury also found that defendant suffered prior strike convictions (§ 1170.12, subds. (b), (c)), two prior serious felony convictions (§ 667, subd. (a)), and served two prior state prison terms (§ 667.5, subd. (b)). He was sentenced under the "Three Strikes" law to an aggregate state prison term of 210 years to life.

In this appeal, defendant claims that his waiver of the right to counsel was invalid, his request for appointment of advisory counsel was improperly denied, and he was denied the right to appointed counsel in the bifurcated proceeding on the prior conviction allegations. He also argues that the robbery statute is unconstitutionally vague, his motion for severance of Counts 5 and 6 from the remaining charges was erroneously denied, he was denied the right to a pretrial lineup, and his conviction on one of the robbery counts is not supported by the evidence. Finally, he complains of instructional and sentencing errors. We conclude that no prejudicial errors were committed in the resolution of defendant's motions before and during trial related to his right to counsel, the robbery statute is not vague, no instructional error occurred, the robbery convictions are all supported by the evidence, and defendant's sentence did not violate any constitutional principles. We therefore affirm the judgment.

STATEMENT OF FACTS

The convictions are based upon a series of six robberies that occurred between early January and late March of 1996 in Concord, Orinda and Antioch. All of the robberies were similar in the method of commission: each was committed in a bank in the afternoon shortly before the scheduled close of business by a sole perpetrator who gave the bank teller a note with a demand for money and a warning that the robber possessed a gun. The disputed issue at trial was the identity of the robber.²

The Home Savings in Concord (Count 1)

Five or 10 minutes before the 6:00 p.m. closing time on Friday, January 5, 1996, at the Home Savings of America branch office on Clayton Road in Concord, a man appeared at Christine Rauson's teller window. He displayed a note to Rauson printed in block letters that read: "It's a gun. Give me your money." The man warned Rauson "not to hit the alarm until he left." She "grabbed the cash and handed it to him." As the man left the window with the money and walked out of the bank, Rauson "hit the alarm," which activated the bank security cameras. Rauson identified photographs of the robber taken by the security cameras, but was not able to identify defendant from a pretrial photo lineup or at trial.

Lolita Kumar, the operations officer who was working at another teller window nearby, observed a man enter the bank, and run right past her to Rauson's window. As the man then left the bank "in a hurry," Kumar "looked at his face." Rauson said to Kumar, "He took my money." Immediately after the man left the bank, Kumar locked the door and "called 911." When the police arrived, Kumar described the robber. She identified defendant as the robber from a six-person photo lineup she viewed on March 27,1996, and at trial.

The World Savings Bank in Concord (Count 2)

Barbara Lyons testified that she was working at the "end of the teller line" at World Savings on Clayton Road in Concord at about 1:00 p.m. on January 13, 1996, as the bank was "just getting ready to close." Lyons asked a man in line if she "could help him." The man directed Lyons to read a note that stated, "I have a gun," and ordered her to have over "all your large." Lyons refused to give the man any money, and activated the alarm. The man then turned to Corey Ryan, a part-time employee, and said, "I want you to give me all your money." Ryan replied, "No problem sir," and gave him the money from the drawer next to Lyons. Lyons whispered to the bank supervisor, Shirley Warren, "that she was being robbed." Lyons and Warren looked at the man as he took the money from Ryan and walked out of the bank. They both identified photographs of the robber taken by bank security cameras, and identified defendant as the robber at trial, although they did not identify his picture in the pretrial photo lineup.

The Home Savings in Orinda (Count 3)

The Home Savings branch office on Brookwood Road in Orinda was robbed at about 3:30 p.m. on January 16, 1996. The branch manager Margaret Teufel testified that a man she assisted at one of the teller windows put a small printed note in her face "that said, `I have a gun. Give me all your money.'" When Teufel responded affirmatively to the man's question, "can you read?" he said, "Well, do it." Teufel took the money from her cash drawer and placed it on the counter. The man stuffed the money in his pocket and left the bank. Teufel activated the alarm and bank security camera. Teufel gave a description of the robber to the police that matched defendant's appearance, then identified him as the robber from the photo lineup and again at trial.

The Wells Fargo Bank in Orinda (Count 4)

On February 8, 1996, "just before" the Wells Fargo Bank office on Moraga Way in Orinda was scheduled to close at 4:00 p.m., someone approached the teller window of Susan Mills with a handwritten note directing her "to give him all [her] large bills." The man then told Mills to "hurry up," so she gave him the "larger bills" from her lower drawer. As soon as the man started to leave the bank, Mills pressed the alarm, but the man was already "out before they got a picture of him." Mills gave a fairly accurate description of defendant to the police, and although she identified him as the robber at trial, she had not been able to identify defendant's picture from a photo lineup shown to her by the FBI.

Gerri Batiza, who was "working for Wells Fargo in Orinda," also saw defendant in the bank when the robbery occurred. Batiza was "walking across the lobby" when she noticed a tall, "striking" man she "didn't recognize" enter the bank and walk to the teller line. Batiza "went to the ATM's," then heard one of the tellers yell out "that they had been robbed." Batiza asked, "Was it that guy in line, the tall guy?" She identified defendant from an FBI photo lineup and at trial as the man she observed in the bank on the day of the robbery.

The Bank of America in Antioch (Count 5)

Nicole Lopez was engaged in her duties as a teller at the Bank of America on East 18th Street in Antioch on February 27, 1996, at 5:53 p.m., when a man appeared at her window with a note that read in part, "Have a gun," in large, printed letters. The man with the note said, "`Don't do anything stupid,' and `Don't press any buttons.' " In compliance with bank policy, training, and federal banking regulations, Lopez cooperated with the demand and did not offer resistance. Lopez "scooped up a bunch of money" and "handed it to him." After the man grabbed the money and walked away, Lopez pushed the silent alarm and video camera buttons beneath her counter, and advised the manager that she had been robbed. She gave a general description of the robber—tall, male Caucasian, with long hair and a ponytail, wearing a baggy sweater and corduroy pants— that matched defendant's appearance. She also stated that photographs taken by the security cameras at Bank of America and during the World Savings Bank robbery depicted the man who robbed her. She did not select from any of the six photographs shown to her by the FBI. Lopez testified at trial that defendant "appeared] to be" the robber, but could not "say for sure."

The Citibank in Concord (Count 6)

Taxi driver Martin Grocholski testified that on March 20, 1996, he picked up defendant at the Concord BART station between 5:30 and 5:45 p.m. Defendant stated that he "wanted to go to Treat Boulevard in the 5000 block," and "needed to be there before 6:00." The address indicated by defendant was mistaken, so Grocholski made a brief stop at a Shell gas station, before driving defendant to a Coco's restaurant on Treat Boulevard adjacent to the Concord Citibank. Defendant left the cab briefly, ostensibly to make a telephone call, returned, then gave Grocholski $10 to wait while he "went back into Coco's restaurant."

At about 5:55 p.m., Marc Pattison, a customer waiting in line at the Citibank on Treat Boulevard in Concord, noticed defendant, who resembled a friend, standing in line behind him. Pattison went to the teller on the right; defendant went to the teller on the left. Defendant's teller, Teresa Watson, testified that defendant "slouched forward" as if to block her window and pushed a note toward her that said, "I have a gun. Give me all your large bills." When Watson hesitated momentarily, defendant told her, "Do it." Watson gave defendant her large bills, which he folded and put in his pocket. Defendant left the bank through the Treat Boulevard exit.

Watson alerted her manager and fellow employee Parvin Kashabi-Enright that she "had just been robbed," Enright noticed defendant, who was "dressed oddly" in a sweater and looked uncomfortable, as he left the bank, crossed the street, and walked to a cab "on the side of Coco's" restaurant. The bank doors were locked and the police were immediately notified of the robbery.

About five minutes after defendant left Grocholski's cab parked in front...