(Super. Ct. No. FVI800880) APPEAL from a judgment of the Superior Court of San Bernardino County, Eric M. Nakata, Judge.
The opinion of the court was delivered by: Nares, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed as modified with directions.
This case arose out of three bank robberies, one attempted bank robbery, and several related offenses committed over a period of three days (April 14, 21, and 22) in 2008.*fn2 A San Bernardino County jury found Melwatt Morehead, Jr. (Morehead) guilty of three counts of second degree robbery (counts 1, 3, & 4: Pen. Code,*fn3 § 211), one count of attempted second degree robbery (count 2: §§ 211, 664), four counts of assault with a deadly weapon or by means likely to produce great bodily injury upon a peace officer (counts 5-8: § 245, subd. (c)) one count of misdemeanor resisting a peace officer (count 9: § 148), and four counts of second degree commercial burglary (counts 10-13: § 459).
Following a bifurcated court trial, the court found true allegations that Morehead had been convicted of two prior strike offenses (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and two serious felonies (§ 667, subd. (a)(1)), and had two prison priors (§ 667.5, subd. (b)). The court sentenced Morehead to a total prison term of 200 years to life plus 10 years.
Morehead appeals the judgment, contending (1) his four convictions of robbery and attempted robbery must be reversed because the court failed to sua sponte instruct the jury that the victims' fear must have been reasonable; (2) his four convictions of robbery and attempted robbery must be reversed because there was no substantial evidence of any reasonable fear on the part of the victims; and (3) the judgment and abstract of judgment must be corrected to give him 40 days of presentence conduct credits, for a total credit of 308 (not 268) days for time served.
Regarding the last contention, the People acknowledge Morehead is entitled to 40 days of presentence conduct credits in addition to the 268 days of actual custody credits. We affirm Morehead's robbery and attempted robbery convictions, modify the judgment to give Morehead 40 days of presentence conduct credits in addition to the 268 days of actual custody credits, and affirm the judgment as modified with directions.
1. Attempted robbery (Bank of America)
On April 14, Jasmin Delacruz was working as a teller at the Bank of America on 7th Street in Victorville, when a man came up to her station, which was behind glass, and held up a note that stated, "Robbery 100s/50s." Delacruz testified she "panicked" and, when she told both the teller next to her, Kokila Patel, and their supervisor that they were being robbed, the man walked away. Although Delacruz was unable to identify the robber in a photo lineup, Patel identified Morehead as the robber at a photo lineup about one week after the robbery.
2. First robbery (Wells Fargo)
On the same date, April 14, Deanna Martinez (Martinez) was working as a teller at the Wells Fargo bank on East 4th Street in Ontario. A man approached her window and slipped her a note that stated, "This is a robbery." Martinez testified she tried to take the note, but the robber "snatched" it back. She was scared and nervous and gave him $1,600. She identified Morehead as the robber both in a photo lineup and in court.
Anthony Martinez was working with Martinez that same day. His desk was behind Martinez's station, and he saw the robber come forward to the teller line and also observed Martinez "frantically" take cash out of the money drawer and hand it over to the robber. Anthony Martinez identified Morehead as the robber both in a photo lineup and in court.
3. Second robbery (Bank of America)
On April 21, Patricia Alarcon was working as a teller at the Bank of America on Palmdale Road in Adelanto. A man approached her station and showed her a note demanding money. Alarcon became scared and nervous and gave money to the man because she was afraid. She identified Morehead as the robber in a photo lineup shown to her the next day, and she also identified him in court.
4. Third robbery (Downey Savings)
On April 22, Dawn Dearing was working as a teller at Downey Savings on Hesperia Road and Bear Valley in Victorville. A man approached her station, which was behind bulletproof glass, and held against the glass a note that stated, "Robbery, no dye packs, second drawer." Dearing was scared as she grabbed her cash and gave it to him. Dearing gave the robber just over $400. Later that day, an officer took her to Mariposa Road near the freeway in Victorville, where Morehead was in custody. There, Dearing identified Morehead as the person who had robbed her.
On that same date, April 22, San Bernardino County Sheriff's Deputy Paul Bader was investigating a traffic collision on Bear Valley Road and 11th Street when he heard a radio transmission about the Downey Savings robbery, which had occurred minutes earlier near his location. On his marked sheriff's motorcycle, Deputy Bader followed the car Morehead was driving, caught up with him, and activated his lights. The car stopped in the middle of the road, and Deputy Bader, who stopped his motorcycle 15 to 20 feet behind the car, ordered Morehead over the public address system to pull over to the side of the road. Deputy Bader testified he then heard the car tires squeal and saw the car start to accelerate backwards towards him. Deputy Bader, who was still on the motorcycle, was not able to get out of the way, and the car hit the motorcycle, throwing both the motorcycle and Deputy Bader to the ground. A motorcycle tire mark on the road showed that the motorcycle skidded 34 feet before Deputy Bader was thrown from it. Deputy Bader suffered bruising to his legs and scrapes and abrasions to his arms. He was able to broadcast on the radio that he had been hit by a car, as well as the direction of travel of the car. Deputy Bader identified Morehead as the driver of the car that hit him.
San Bernardino County Sheriff's Deputy Peter Gryp was en route to the Downey Savings robbery scene when he heard Deputy Bader's broadcast that he had been hit by a vehicle. When he arrived near the scene in his marked patrol car, Deputy Gryp saw Morehead driving with two wheels on the sidewalk and two wheels on the street, sideswiping other vehicles northbound on Mariposa Road. Deputy Gryp pulled his patrol car into Morehead's path. Morehead accelerated and drove into the side of Deputy Gryp's patrol car.
At the same time, San Bernardino County Sheriff's Deputy James Marshall heard a call about Morehead's car traveling northbound on Mariposa Road. He instructed Deputy Tim Jackson, who was driving the marked patrol car, to drive to the scene. The deputies saw a car that appeared to be driving on the sidewalk. When Deputy Jackson positioned the patrol car to box Morehead in, Morehead struck the side of Deputy Gryp's car, made no effort to stop, accelerated, and hit the passenger's side of Deputies Jackson and Marshall's patrol car. Deputy Marshall was dazed after the collision because his head hit the metal frame of the window. When Deputy Marshall was able to exit the patrol car, he undid Morehead's seatbelt, pulled him out of the car, and, with several other deputies, took Morehead to the ground.
Despite deputies' commands to stop resisting, Morehead pulled his hands underneath his body toward his waist. Deputy Marshall struck Morehead twice in the upper back and was eventually able to handcuff him. Morehead kicked Deputy Marshall in the thigh two or three times. Eventually, the deputies were able to secure Morehead in the patrol car. Deputy Marshall suffered a minor concussion, as well as neck and shoulder strain, as a result of Morehead's behavior.
Deputies recovered deposit slips, money, a black marker, a demand note, and the paper wrap used at banks to wrap stacks of money from Morehead's car. Some of the money matched the serial ...