P. v. McNabb
Filed 11/6/12 P. v. McNabb CA2/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Jimmy McNabb, III,
Defendant and Appellant.
B237604
(Los Angeles
County
Super. Ct. No. GA082578)
APPEAL from
a judgment of the Superior Court of
County, Dorothy L. Shubin, Judge.
Affirmed.
Renée
Paradis, under appointment by
the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Jimmy
McNabb, III, appeals from the judgment entered following a jury trial which
resulted in his conviction of second
degree commercial burglary (Pen. Code, § 459)
and petty theft (§ 484, subd. (a)) and his admission that he previously had
been convicted of the serious and violent felony of robbery (§ 211) within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)). The trial court sentenced
McNabb to 32 months in prison. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Fidel
Cervantes, Jr. is a full-time student and has a part-time job at the Kohl’s
Department Store in Monrovia as a
loss prevention officer. When he first
became an officer approximately two years ago, he underwent computer-based
training and drove to various stores in order to work with different officers
throughout the district. His job was
“pretty much just [to] prevent any
shortage for the store.â€
At
approximately 9:00 p.m. on February 19, 2011, Cervantes, who was
working by himself that evening, was watching the sales floor by monitoring the
closed circuit camera system in the office.
He was watching the camera system because it allowed him to “maintain
observation o[f] the whole floor.†There
are approximately 50 cameras covering every angle on the sales floor. In addition, they are always recording. If one wishes to go back to an earlier time
in the day, they can simply copy the recordings from the cameras to a disc.
As
Cervantes was watching the cameras, he saw McNabb in the “young men’s
department†of the store. McNabb
randomly selected two shirts, then walked to the shoe department. There, he approached a young woman, Angelica
Carter, who appeared to be with him.
While in the shoe department with Carter, McNabb “conceal[ed]†the two
shirts he had been carrying in his hand.
By watching the camera, Cervantes could see McNabb place the shirts
underneath his sweater, in his armpit area.
McNabb then continued to “browse [through the] merchandise.â€
As McNabb
and Carter continued to look around the store, they were joined by another
young woman, Amen Okon. They went to the
“junior’s,†or young women’s department, where Okon took a gray shirt and two
white “tops†and placed them in her purse.
While McNabb and Okon continued to browse, Carter went to the jewelry
department. She selected a few items and
removed the tags. Okon and Carter then
went to the fragrance department, where Okon concealed some perfume in her
“sweater area [by her] chest area.†At
this point, McNabb was “off . . . on his own†“in the front right by
the exit [near] the clothes department.â€
McNabb left the store and, approximately five minutes later, Carter and
Okon followed.
As McNabb
began to leave the store, Cervantes contacted the Monrovia Police
Department. He came out of the office
and, as Carter and Okon left the store, he followed them. The entire time he was on the phone on
“standby†with a police officer. As
McNabb, Carter and Okon begin to walk south, toward a Marshall’s
store, police officers arrived and detained them. The officers retrieved 12 stolen items,
including jewelry and fragrances from Carter and “graphic shirts†from
Okon. In total, Carter took
approximately $329 worth of merchandise and Okon took approximately $379 worth
of items.
shirt and a green shirt on the sidewalk approximately 12 inches from McNabb’s
left foot. The tags were still on the
shirts, showing that they were worth $18 each.
That
evening, approximately nine or ten minutes after McNabb had entered the men’s
department, Cervantes had begun to write down his observations. Cervantes later prepared a report on the
incident and submitted it to the district manager in charge of loss
prevention. Cervantes also prepared a
video of the incident. Later, the two
shirts which had been taken by McNabb were brought back to Cervantes’s
office. The shirts still had their tags
but they did not have “security device[s]†on them.
Agent Luis
Villalobos works for the City of Monrovia Police Department. He is a supervisor and a field training
officer and has been with the department for approximately 14 years. He was one of the officers called to the
Kohl’s Department store on the night of February
19, 2011. The call was
regarding a “theft . . . in progress at the store†and involved three suspects,
two females and a male.
Villalobos and his partner, Officer
Steven Ramos, were in full uniform and driving a marked car when they arrived
at the store parking lot. They parked their car west of the entrance along a
row of parked cars and “tried to conceal [them]selves and put [them]selves in a
position so [they] could watch the front doors.†Other officers had also responded to the call
and Villalobos “directed them to park along different
sites . . . so they could contain the area in case [one of the
suspects] ran from [them].â€
Approximately five minutes after
Villalobos and Ramos had parked their car, McNabb came out of the store. He stood in front of the store for a time, then
two women came out and joined him. As
the three individuals walked south on the sidewalk, Villalobos “directed
everybody to move in to detain them.â€
Several officers arrived simultaneously and took McNabb, Carter and Okon
into custody.
Villalobos focused on McNabb. He could “see there was a green material
fabric underneath his left armpit area, and it looked like it could be a shirt
. . . .†As he was attempting to walk
away, McNabb “brought his hand up and started to lower it against the side of
his body[.]†Although he tried not to
let the officer see, Villalobos saw McNabb drop something. When Villalobos went back to retrieve the
item, he realized that McNabb had been carrying two T-shirts under his arm.
Officer Ramos approached Okon. He “retrieve[d]†her purse, then searched
it. Inside, the officer found a five- to
six-inch box cutter and merchandise from Kohl’s, including some graphic
T-shirts, jewelry, shoes and sunglasses.
Although another officer searched
Carter’s purse, the officer gave to Ramos some of the items he found so that
they could be returned to Kohl’s. The
officer gave to Ramos some women’s clothing, a Burberry fragrance and two pair
of shoes.
After the officers had detained
McNabb, Carter and Okon, they searched an older model Lexus parked in the
Kohl’s lot. They obtained the keys from
Okon, who owed the car. Inside were
several items which still had the price tags on them from a store called Ross. There was a metal pot, a man’s athletic
jersey and other sports clothing, a pair of leather boots, women’s clothing and
some playing cards. There were no
receipts or bags from the Ross store.
Christine Garland was the jailer at
the Monrovia Police Department on the night of February 19, 2011. As jailer, Garland took inventory of the
personal possessions belonging to an individual being taken into custody, typed
a list into the department’s computer, then placed the items into a
locker. The detainee would review the
list, sign a form indicating that it was accurate and receive a receipt. The property booked by Garland is considered
to be the suspect’s, is not considered to be evidence and is returned to the
suspect when he or she leaves the facility.
At 1:16 a.m. on February 20, 2011,
Garland booked McNabb into custody. He reviewed
the list of items, then signed the form.
Garland had booked for McNabb tennis shoes, a beanie hat, a cell phone,
a key ring, a jacket, a rubber band for his hair, a watch and some shorts. McNabb was not carrying a wallet, any cash or
any credit cards.
2.
Procedural history.
Following a preliminary hearing, on
June 16, 2011 McNabb was charged by information with one count of second degree
commercial burglary, a felony (§ 459) (count 1), and petty theft, a
misdemeanor (§ 484, subd. (a)). It
was further alleged with regard to count 1 that McNabb had previously been
convicted of the serious or violent felony or juvenile adjudication of robbery
(§ 211) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).
On July 1, 2011, counsel for McNabb
made a motion to dismiss the case against him pursuant to section 995. Counsel argued that the magistrate had based
his order holding McNabb to answer on the fact that he was with the two
women. If he had been alone, there would
have been insufficient evidence to detain him.
The trial court disagreed and held McNabb to answer.
On July 19, 2011, counsel for
McNabb filed a motion to dismiss McNabb’s prior conviction alleged pursuant to
the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). Counsel argued the
prior should be stricken in furtherance of justice (§ 1385; see
13 Cal.4th 497) because “in light of the nature and circumstances of his
present felon[y] and prior serious and/or violent
felony . . . , and the particulars of his background,
character, and prospects, [McNabb should] be deemed outside the scheme’s spirit
. . . .†(People v. Williams (1998) 17 Cal.4th 148, 161.) Counsel asserted McNabb’s prior conviction
was 10 years old and his present offenses were neither serious nor remotely
violent. He simply made a “mistake in
judgment†and followed a “misguided sense of survival.†After the prosecutor argued that McNabb had a
lengthy criminal record, which began when he was a juvenile and included such
crimes as armed robbery, making terrorist threats and grand theft, the trial
court again disagreed with McNabb’s counsel and denied the motion.
Trial was by jury. After the prosecution presented its case, McNabb
indicated he did not wish to testify.
The trial court advised McNabb of his “absolute constitutional right not
to testify†or “to testify,†and when McNabb stated that he was choosing not
to, the court “accept[ed] the waiver of the right to testify [and found] it to
[have been] freely and voluntarily given.â€
After the evidence on the
substantive offenses had been presented, the trial court advised McNabb that,
if the jury were to find him guilty of count 1, he had the right to have the
jury determine beyond a reasonable doubt whether he had committed the alleged
strike. In the alternative, he could
have the court decide or he could admit the prior. McNabb’s counsel indicated that if McNabb
were to be “convicted of count 1, [he and McNabb were] discussing an
admission of [the] prior.â€
The jury began deliberating on
Wednesday, August 17, 2011. That
afternoon, the foreperson sent to the trial court two notes. The first note read: “ ‘We the jury in the above entitled
action request the following court report of Cervantes’s testimony on Tuesday.’
†The second note indicated: “ ‘We the jury in the above entitled
action request the following under count No. 1, No. 2, is there a
difference between whether he had intent to directly commit theft or had knowledge
that a theft was going to be committed?’ â€
After consulting with counsel, the
trial court stated that, since it was nearly 4:00 p.m., the answer to the
first note would read: “ ‘The
reporter will be prepared to do the readback tomorrow morning.’ †With regard to the second inquiry, both
counsel requested that the court refer the jury to instructions Nos. 1700
and 1800.
On the afternoon of August 18,
2011, the jury “buzzed,†indicating they had reached verdicts. With regard to count 1, “ ‘the jury in
the above entitled action [found] the defendant Jimmy McNabb guilty of the
crime of second degree commercial burglary in violation of . . . section 459, a
felony . . . .’ †When the clerk
polled the jury, each juror indicated that that was his or her true and correct
verdict. As to count 2 “ ‘in the
same case, title, and cause,’ †the jury found “ ‘the defendant Jimmy
McNabb guilty of the crime of petty theft in violation of . . . section
484, subsection (a), a misdemeanor . . . .’ †The court clerk again polled the jury and
each juror indicated that “this [was its] true and correct verdict[.]â€
After the jurors were dismissed,
McNabb decided that he would admit the prior Three Strikes conviction. Sentencing would then be put over until
September 22, 2011.
The trial court addressed McNabb
and informed him that he had “a prior conviction of . . . section 211, case
number SA042023, [which had occurred on] May 15th, 2001 [in] Los Angeles
County Superior Court.†It had been
alleged with regard to count 1 that the prior occurred pursuant to section 667,
subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes
law. “In other words, it ha[d] the
effect of doubling [McNabb’s] sentence . . . .â€
The trial court then indicated that McNabb had the right to a court
trial on the prior. The court
explained: “You would have all the
rights that you had in connection with your trial except it would be before the
court: the right to deny the charges
against you, the right to present a defense, the right to subpoena witnesses to
[the] court free of charge, the right to confront and cross-examine witnesses,
and the right to testify or [the] right to remain silent.â€
After McNabb indicated that he
understood and waived his right to a trial, he admitted having suffered the
Three Strikes conviction. The trial
court determined the admission had been “freely and voluntarily given
[following] a knowing and intelligent waiver of the defendant’s rights.†The court found the prior to be true.
On November 18, 2011, counsel for
McNabb renewed his Romero
motion which raised facts which he had not known, and thus had not mentioned,
in the initial motion. A hearing was
held at which McNabb’s father, Jimmy McNabb, Jr., testified that his
28-year-old son had an I.Q. of only 69 and a “cognitive disability.†McNabb, Jr. had become aware of this
disability when McNabb was in the fifth or sixth grade and began to have
“behavioral†problems. McNabb, Jr., a
mental health professional, was in “denial†when he received a report
indicating there was “something wrong with†his son and he took no action to
remedy the situation. McNabb, Jr.,
stated that, although mild mental retardation may have nothing to do with
criminal propensity, “[i]t could have something to do with [the individual’s]
judgment, . . . their decision–making [and] their cognitive skills. . . . [¶]
Sometimes around the age of . . . nine or ten is when you find that
their skills academically and their cognitive skills are not keeping up with
the other kids their age. And as they
grow older, they’re still not capable of making . . . decisions that, quote,
unquote, [a] normal person [would] make.â€
McNabb, Jr. told the court that all
of McNabb’s “mistakes and the reason he’s sitting there, all the crimes and
everything that he did, all of his faults [could] be directly traced back to
[his] failures and his mother’s failures as parents.†â€[H]e’s been needing help all of his life . .
. . The help that [McNabb, Jr.] did not
provide for him.â€
In commenting on McNabb, Jr.’s
testimony, defense counsel asserted that, “[t]o put it quite simply and
bluntly, while this does not absolve Mr. McNabb of the crime and while it does
not absolve Mr. McNabb of consideration for sentencing under
to consider as a strong [factor in] mitigation the fact that, while he was at
the age of minority, [McNabb] was not given any real treatment or guidance or
assistance from his family.†Counsel,
however, acknowledged that the robbery had been “an aggravated act†(there had
been two victims and a firearm was used).
Counsel had not seen anything else
in McNabb’s history which suggested that he was the type of hard-core
recidivist that demanded sentencing under Romero
for a crime of this level. “With regard[]
to the facts surrounding the crime leading to the current conviction, . . .
[counsel believed] the testimony of the witness[]†provided some clarity. It underscored that his conduct was, in and
of itself, somewhat minimal. “It was a
shoplift of two T-shirts.†With that in
mind, counsel urged the trial court to “strike the use of the prior and to
sentence [McNabb] accordingly.â€
The trial court indicated that,
although it had listened carefully to McNabb, Jr.’s testimony, it was
nevertheless going to deny counsel’s motion.
The court indicated: “First, as
the court has stated in the initial denial, the 211 that constitutes Mr.
McNabb’s prior strike was extremely violent.
And although that offense is about ten years old, Mr. McNabb was in
custody for most of that time, and upon release, while he was still on parole,
he committed the new offense. [¶] Prior to the 211 he had two theft-related
sustained petitions, one for [section] 10851[, subdivision] (a) and one for . .
. section 459. So he has a history of
theft-related offenses. [¶] In terms of the testimony that the court
heard today, even if Mr. McNabb suffers
from some sort of reduced capacity, [it is] not to the point where he can’t
comprehend his actions[.]
. . . [E]ven if he
doesn’t have as high [a] capacity as others, there’s no evidence that he cannot
understand the nature and wrongness of his crime.†“Many people who come from a broken home or a
home that doesn’t offer what it should rise above those circumstances and . . .
don’t embark upon a series of crimes that harms others. Therefore, the court respectfully denies the
The trial court ordered probation
denied “for the reasons stated.†With
regard to count 1, the court imposed the low term of 16 months in state prison,
then doubled the term to 32 months pursuant to the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). For count 2, the trial court imposed six
months, then stayed the term pursuant to section 654.
low term because the “offense was relatively minor[;] . . . it was not a
violent offense [and] . . . McNabb’s role was somewhat limited . . .
.†McNabb was awarded presentence
custody credit for 273 days actually served and 136 days of conduct credit, for
a total of 409 days. He was ordered to
pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200
parole revocation restitution fine (§ 1202.45), a $40 court security fee (§
1465.8, subd. (a)) and a $30 criminal conviction fee (Gov. Code, § 70373).
McNabb filed a timely notice of
appeal and request for appointed counsel on November 18, 2011.
After examination of the record,
counsel filed an opening brief which raised no issues and requested this court
to conduct an independent review of the record.
By notice filed August 13, 2012,
the clerk of this court advised McNabb to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
We have examined the entire record
and are satisfied counsel had complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
KITCHING,
J.
We concur:
KLEIN, P.J. CROSKEY, J.
name="_ftn1" title="">
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">
Cervantes testified that Carter took $379 and Okon took $329 worth of items.
