(Super. Ct. No. 09F06018)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Jordan Elijah Latour guilty of second degree robbery of Wells Fargo Bank (Pen. Code,*fn1 § 211), evading a police officer (Veh. Code, § 2800.2); assault with a firearm on a peace officer (§ 245, subd. (d)(1)), and misdemeanor resisting arrest (§ 148, subd. (a)(1)). The jury also found true allegations defendant personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)) and the assault (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and personally inflicted great bodily injury upon someone not an accomplice in the commission of the robbery (§ 12022.7, subd. (a)). The jury found defendant not guilty of assault with a firearm (§ 245, subd. (a)(2)) and attempted second degree robbery (§§ 664/211) and failed to reach a verdict on four remaining counts, including second degree robbery of bank teller Anne Beaumont and second degree robbery of bank teller Iona Crivineau. The trial court declared a mistrial as to the four remaining counts, and defendant later pleaded no contest to the two robbery counts, admitted allegations he personally used a firearm in the commission of those robberies, and that he suffered a prior strike conviction (§ 667, subd. (a)) in exchange for an aggregate prison term of 46 years.
The trial court sentenced defendant to an aggregate term of 46 years in prison, consisting of 16 years (the upper term doubled for the prior strike) for assault with a firearm on a peace officer, plus an additional 10 years for the firearm enhancement and 3 years for the great bodily injury enhancement; 2 years (one third the middle term doubled for the prior strike) for the robbery of Beaumont, plus 3 years and 4 months (one-third of 10 years) for the firearm enhancement; 2 years (one-third the middle term doubled for the prior strike) for the robbery of Crivineau, plus 3 years and 4 months (one-third of 10 years) for the firearm enhancement; and 1 year and 4 months (one-third the middle term doubled for the prior strike) for evading a peace officer; and a consecutive 5 years for the prior strike conviction. The court sentenced defendant to a concurrent one year in jail on the misdemeanor offense and stayed defendant's sentence for robbery of Wells Fargo Bank pursuant to section 654. The court awarded defendant 551 days of presentence custody credit, plus 82 days of conduct credit, for a total of 633 days. The court also imposed an $8,200 restitution fine for the felony convictions pursuant to section 1202.4 and a parole revocation restitution fine in the same amount pursuant to section 1202.45. With respect to the misdemeanor, the court imposed "the minimum [restitution] fine of $100." Finally, the court ordered defendant to "make restitution to the bank, to the Deputy, . . . and/or to the Rocklin police department for any claims of loss that they may allege" in an amount to be determined if any of those entities seek restitution under section 1202.4.
Defendant appeals, contending (1) his conviction for robbery of Wells Fargo Bank must be reversed because the trial court failed to instruct on duress; (2) the trial court erred in ordering him to pay restitution to the Rocklin Police Department because the department is not a direct victim of defendant's crimes; (3) he is entitled to one additional day of presentence custody credit; and (4) the trial court erred in imposing a separate restitution fine for the misdemeanor offense.
We shall reverse defendant's conviction for robbery of Wells Fargo Bank because robbery of a bank is not a crime and modify defendant's sentence to award him one additional day of presentence custody credit. We shall affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORY
A detailed recitation of the factual and procedural history is not warranted. Suffice it to say that on the afternoon of August 8, 2009, defendant and his nephew Marcus Zapata entered a Wells Fargo Bank in Rocklin wearing masks and carrying guns. Zapata jumped over the teller counter and emptied Beaumont and Crivineau's cash drawers while defendant remained in the customer area. Zapata then jumped back over the counter, and he and defendant ran out of the bank and into a waiting car. Police were dispatched to the bank where they were directed to the getaway car, and a high speed chase ensued. Law enforcement eventually lost sight of the car, which had driven into a shopping mall parking lot. Defendant and Zapata got out of the car and ran behind a building where they were confronted by a Sacramento County Sheriff's Deputy. Defendant shot the deputy in the shoulder, and he and Zapata fled on foot. They were apprehended a short time later.
Defendant's Conviction for Robbery of Wells Fargo Bank Must Be Reversed Because Robbery of a Bank Is Not a Crime
Defendant contends that his conviction for robbery of Wells Fargo Bank (count 1) must be reversed because the trial court "erroneously refused to instruct on the duress defense." The People respond that "[c]ount 1, robbery against Wells Fargo Bank, should be reversed because a bank is not a person and cannot be susceptible to robbery under section 211." We agree with the People, and ...