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The People v. Melody Anne Whittemore

August 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MELODY ANNE WHITTEMORE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F4466, 10F1084)

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

P. v. Whittemore

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal concerns separate criminal prosecutions commenced in 2009 and 2010. In the 2009 case, a jury found defendant Melody Anne Whittemore guilty of two counts each (as to two different victims) of first degree burglary, theft from an elder, and petty theft. With respect to the petty thefts, defendant had stipulated that she had 2007 convictions for petty theft. Defendant thereafter entered a negotiated plea of no contest in the 2010 case to two counts of possessing a forged check in exchange for the dismissal of the remainder of the charges in the 2010 case and a severed seventh count in the 2009 case. The trial court sentenced her to prison for the burglaries, staying the remainder of the counts.

Defendant contends on appeal that the trial court abused its discretion in failing to sever the counts in the 2009 case involving one victim from the counts involving the other. She also maintains that the abstracts of judgment in both cases incorrectly identify one of her burglary convictions and one of her forgery convictions as violent felonies. (Pen. Code, § 667.5, subd. (c).) The People concede the latter clerical error. We shall affirm the judgments.

BACKGROUND

Defendant does not raise any issues with respect to the 2010 case other than the clerical error. We therefore summarize only the facts in the 2009 case.

A

The first victim was 72 years old at the time of the 2010 trial and had known defendant for over 30 years. She encountered defendant on July 19, 2008, while socializing at the American Legion hall. Defendant asked to borrow her car, asserting that she needed to get her spare key because she had locked her keys in her red Volkswagen. The first victim gave defendant her keys, which had her house key on the ring. Defendant returned about 45 minutes later and bought the first victim a drink.

On the following day, the first victim came home from a brief shopping trip to find that jewelry and coins she valued at about $6,000 were missing. Investigators did not find any point of forced entry.

A neighbor of the first victim, who was outside washing his truck, noticed a blond woman in a red Volkswagen pull through the first victim's carport into the backyard and park for 20 to 30 minutes on the day of the burglary. She kept looking at him. He thought she was in her 30's. (Defendant at the time of trial was 52 and had blond hair; she had a blond daughter who was in her 30's.) He could not positively identify the woman as defendant. The woman drove off, but returned about 30 to 40 minutes later and parked on the corner. He did not pay close attention, and eventually the car was gone.

When a sheriff's deputy questioned defendant about borrowing the first victim's keys, defendant initially denied ever being to the victim's home. After the deputy fabricated a report placing defendant at the home, she admitted stopping by and knocking on the door to thank the first victim for the loan of the car. The deputy described how devastated the first victim felt at the loss of sentimental property; he suggested defendant could put the ...


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