P. v. Barnes
Filed 11/4/13 P. v. Barnes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHNNIE LEE BARNES,
Defendant
and Appellant.
E056547
(Super.Ct.No.
RIF127702)
OPINION
APPEAL
from the Superior Court
of
County. Thomas M. Kelly,
Judge. (Retired judge from Santa Cruz
Super. Ct., assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In People v. Barnes (Feb. 10, 2012, E050704 [nonpub. opn.]) this court
noted that defendant had been convicted by a jury of three counts of
and two counts of being an ex-felon in possession of a firearm. (Id.
at p. 2.) We further noted that in
found true allegations that defendant had suffered convictions for two serious
offenses and two strike priors and that he had been sentenced to prison for two
terms of 25 years to life, plus 23 years, four months. (Ibid.) We affirmed his convictions and the true
findings for his 1992 prior, but reversed the true findings for his 1997
federal bank robbery conviction on the basis of insufficiency of the evidence. (Id.
at pp. 2, 13.) We gave the People the
option of retrying defendant on the allegations concerning that prior (
to it. Defendant here contends that the
evidence presented was insufficient to sustain the trial court’s findings. We disagree.
As
we noted in our prior opinion, under Title 18 United States Code section 2113(a),
there are three ways for a person to commit federal bank robbery, one of which,
as is relevant here, is to by force and violence, or by intimidation, take from
the person or presence of another any property or money or other thing of
value, which is in the care, custody, control, management or possession of any
bank. (People v. Barnes, supra,
E050704 at pp. 6-7.) The other two ways are
the taking of that same property by extortion and by committing burglary
(entering the bank with the intent to commit a felony involving the bank). (Ibid.) Also, as we noted, Penal Code section 1192.7,
subdivision (c), which provided the list of offenses that are deemed serious
for purposes of Penal Code section 667, subdivision (a) and strikes for
purposes of Penal Code section 667, subdivisions (b)-(i), includes only the
first way in which a federal bank robbery is committed. (People
v. Barnes, supra, E050704, at pp.
7-8.)
At
the court trial on the truth of the allegations concerning defendant’s 1997
federal conviction, the People introduced, in addition to the exhibits that had
been introduced at the first trial, the single count indictment which charged
that defendant “by force, violence, and intimidation, knowingly took from the
person or presence of another, approximately $4,864.00 belonging to and in the
care, custody, control, management, and possession of Glendale Federal Bank . . . .†The minutes of the federal court, which bore
the same case number as that on the indictment, noted that defendant pled
guilty
Defendant
here repeats the argument he made unsuccessfully below that because the clerk
of the court (presumably) indicated that defendant pled guilty to the
indictment by checking boxes on the minutes form and typing in the number of
the count to which defendant pled, it is somehow insufficient to satisfy the
People’s burden of proof beyond a reasonable doubt that he pled guilty to the
first type of federal bank robbery. We
disagree. Court minutes are powerful
instruments, which is why we take the time to correct them when they are
erroneous, and this, unfortunately, happens with a fair amount of
frequency. Outside of the indictment and
the minutes of the taking of defendant’s plea, only a transcript of the taking
of that plea by the federal judge could possibly have proved that he pled
guilty to the type of federal bank robbery that entitled him to enhancements
under California law. Defendant cites no
authority holding that only a transcript of the taking of the plea is
sufficient proof. In his reply brief,
defendant appears to assert that because the minutes of the taking of the plea
did not specifically state that defendant was pleading guilty to the count “as
charged in the indictment†the proof was insufficient. Again, defendant cites no authority in
support of this assertion. Therefore, we
concluded that there was sufficient evidence that defendant suffered a
conviction for a serious offense and a strike prior for his 1997 federal bank
robbery conviction.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
MILLER
J.
contest.
