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The People v. Joseph Monroe Leavel

February 17, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH MONROE LEAVEL, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Bernardino, Eric M. Nakata, Judge. (Super. Ct. No. FVI022200)

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

CERTIFIED FOR PUBLICATION

Affirmed.

A jury found Joseph Monroe Leavel guilty of residential robbery (Pen. Code, § 211; count 2),*fn1 grand theft of a firearm (§ 487, sub. (d)(2); count 3), false imprisonment (§ 236; count 4), making criminal threats (§ 422; count 5), kidnapping to commit robbery (§ 209, subd. (b)(1)); count 7), burglary (§ 459; count 8), and being a felon in possession of a firearm (Former § 12021, subd. (a)(1);*fn2 count 10).*fn3 The jury rejected Leavel's plea of not guilty by reason of insanity. He admitted three prior convictions within the meaning of the Three Strikes law (§§ 1170.12, subd. (a)-(d); 667, subd. (b)-(i)), and the court denied his motion to strike them (§ 1385). The court sentenced Leavel to consecutive prison terms of 25 years to life on counts 2, 5, 7 and 10, and a one-year enhancement on each of two prior prison terms (§ 667.5, subd. (b)), for a total of 102 years to life. The court stayed consecutive sentences of 25 years to life on counts 3, 4 and 8.

On appeal, Leavel contends the trial court erred by not appointing a second mental health professional under section 1027 to examine him with respect to his insanity defense; denying his motion for a mistrial after a sheriff's deputy disclosed Leavel was living in a detention center when he was served with a search warrant for a DNA sample; and denying his motion to strike his prior strike convictions. He also challenges the sufficiency of the evidence to support the jury's verdict on the kidnapping for robbery count. We affirm the judgment.

FACTUAL BACKGROUND

At 1:20 a.m. on July 22, 2005, 69-year-old Diann Panzera was in her home office.*fn4 She heard noises and went to the kitchen to investigate. A Black man, later identified as Leavel, was squatting in front of the refrigerator. Leavel is six feet tall and weighed approximately 250 pounds. He wore jeans, but no shirt or shoes. He had entered through a window over the sink.

Panzera froze and then began backing away. Leavel threatened Panzera, "Don't scream or I'll kill you." He slapped his hand over her mouth, knocked her to the ground and landed on her, causing her to lose bowel control. Leavel said he would not rape or hurt Panzera if she cooperated with him. He got off of her and pulled her up. He hugged her and kissed her on the top of her head and began telling her about his "sad life." Panzera got $70 from her purse and gave it to Leavel, and "he started snooping around" and took her cell phone and cigarettes.

Leavel told Panzera, "We're going to smoke cigarettes." Holding onto her arm and the back of her neck, he led her down the hallway looking for her bedroom. As they walked, Leavel continued telling Panzera about his "sad life." Panzera was frightened and "in shock." Leavel found the bedroom, where they smoked the cigarettes. He wiped his fingerprints from an ashtray with a tissue, stating, "I watch all those shows."

After smoking, Leavel "started looking around and through things," and he removed a loaded pistol from a night stand drawer. He put it back, telling Panzera "he didn't want to get caught with it." He changed his mind, however, and took the gun. Leavel ordered Panzera to disconnect her phones and promise not to call the police.

Leavel then said he was hungry. He grabbed Panzera by the back of the neck and forced her into the kitchen. She gave him ham and a bottle of beer from the refrigerator. He began eating the ham, but ordered her to go into the bathroom and flush it down the toilet because it was too salty and he had high blood pressure. Leavel then took Panzera into her office where he "snooped around" and took a digital camera, a pen, and a towel.

Leavel next grabbed Panzera by the back of her neck and forced her outside with him where he retrieved his clothing and shoes. He then forced her back inside into the living room, where he got dressed. After dressing, he asked Panzera to hug and kiss him, which she refused to do. Leavel called someone from her cell phone, identified himself as "Joe," and said, "I've got $50. Never mind how I got it. I earned it."

Leavell placed all the items he had stolen on a table and "went out to the garage and stood there." He came back inside, took all the items, and left the house at around 2:10 a.m. He threw the bottle of beer in the front yard. Panzera was afraid for her safety throughout the ordeal.

Shortly after robbing Panzera, Leavel went to the home of an acquaintance, Arlington Holloway, and said something to the effect of "[t]hey made me or they dared me to do it." Leavel pulled a gun from his pocket, along with a bunch of money, jewelry, and a cell phone that had "Super Granny D" on the screen. The screen of Panzera's cell phone displayed the words "Super Granny D." Holloway drove Leavel somewhere, and when he returned home Leavel phoned him several times. The records from Panzera's cell phone showed eight calls to Holloway's phone. Additionally, Panzera instantly identified Leavel from a photographic lineup.

In 2007 an analysis was performed on DNA samples taken from the beer bottle left in Panzera's yard and from Leavel. Leavel was identified as a possible contributor to the DNA on the bottle. Statistically, the odds of another contributor were one in 870,000 African-American males.

DISCUSSION

I

Section 1027

Leavel contends the court violated section 1027 by denying his request for the appointment of a second mental health professional to examine him and perform an evaluation for purposes of his insanity defense. Section 1027, subdivision (a) provides in part: "When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, ...


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