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The People v. Marquis Laron Irving

May 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARQUIS LARON IRVING, DEFENDANT AND APPELLANT.



Super. Ct. No. 09F04261

The opinion of the court was delivered by: Hoch , J.

P. v. Irving 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Marquis Laron Irving of six counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts one through six)*fn1 and found not true allegations that he personally used a handgun (§ 12022.53, subd. (b)) and that a principal was armed (§ 12022, subd. (a)(1)). Following defendant's waiver of jury trial, the court convicted him of possession of ammunition by a convicted felon (§ 12316, subd. (b)(1); count seven) and found that he had a 2007 robbery conviction (§ 667). Defendant was sentenced to state prison for 22 years four months, consisting of six years (twice the middle term) on count one, two years (two-thirds the middle term) each on counts two through six, one year four months (two-thirds the middle term) on count seven, and five years for the prior serious felony.*fn2

On appeal, defendant contends the trial court (1) erroneously instructed the jury with CALCRIM No. 372 on flight after crime, and (2) failed to exercise its sentencing discretion, and abused that discretion when it imposed consecutive sentences on counts two through six. Finding no error on the first contention and no prejudicial error on the second contention, we affirm the judgment.

FACTS*fn3

Events Preceding the Robbery

In January 2009, Jessica Mueth purchased a 1999 automobile that "look[ed] like a cop car." At the time of the purchase, the car had a red temporary registration tag instead of a license plate.

In February or March 2009, Mueth met defendant and they began "hanging out" together "[c]lose to every day."

In April 2009, defendant went to a clothing store and purchased a jacket that had an emblem on the back with a dagger, roses, and a skull.

Sometime in April 2009, defendant and Mueth decided to go their separate ways. He gathered his belongings, picked up the key to her car, and drove away. Mueth did not see the car again until she retrieved it from impound following the robbery. However, she did receive a traffic ticket through the mail from Vacaville, where defendant had told her he was from.

The May 2009 Robbery

In May 2009, four or five Black males, with their faces covered, entered a Sacramento pharmacy. The men went to the back area of the pharmacy and took OxyContin and promethazine codeine cough syrup. The men then left the pharmacy and left the area in what was described as possibly a surplus police car.*fn4

Sandie Rogers (the count two victim) testified that she was working at the pharmacy's front cash register, checking a drug order, when a man entered the pharmacy with a black shirt over his face. The man had dark skin and was wearing dark clothing. When he walked through the door, he "aggressively" said, "this is a stick up."

After the first man entered the pharmacy, two or three men came in behind him. The first man proceeded to the back of the store while the last man stayed at the front of the store and told Rogers to open and empty the cash register. Rogers, who was frightened, opened the register and gave the man approximately $100.

While Rogers was emptying the front cash register, defendant approached Nirmal Singh (the count four victim) who was working in the back of the pharmacy. Defendant yelled out, "'Don't move, Bitch.'" When Singh first heard this comment, she believed that some of her co-workers were "playing," so she continued to walk. When she did, defendant yelled, "'Bitch, don't move.'"

Singh saw that there were four other men with defendant in the pharmacy. Defendant, who was wearing a jacket with a picture on the back of it, filled a plastic bag with "promethazine with codeine" cough syrup. Singh believed that he took more than 10 bottles. At trial, Jessica Mueth identified a color still photo from the pharmacy surveillance video as depicting defendant wearing the jacket with the distinctive emblem that defendant had bought at a clothing store.

Pharmacist George Siouris (the count five victim) and clerk Shonta Master (the count six victim) also saw the men come into the pharmacy. They both saw four or five men come into the pharmacy with masks and hoods over their heads and grab drugs and medications off of the shelves. Although he did ...


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