People v. Bonner (2000)

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL T. BONNER, Defendant and Appellant.

[Modification of opinion (80 Cal.App.4th 759) on denial of petition for rehearing.] [81 Cal. App. 4th 910b]

BENKE, Acting P.J.-

The opinion filed May 9, 2000, is modified as follows:

Page 7, last 2 lines through page 8, first 3 lines [80 Cal. App. 4th 764, advance report, last par., lines 1-4]: replace the sentences with "Appellant does not contest that had he by force or fear taken the hotel receipts from the manager and assistant manager, he could properly be convicted of two counts of robbery."

Page 8, line 12 [80 Cal. App. 4th 765, advance report, line 3]: after the period insert footnote 3 reference; footnote 3 text reads "In a supplemental brief filed after oral argument appellant contends the evidence was insufficient to convict him of even one count of attempted robbery. We disagree. It was appellant's clear intention to rob Dixner and Terry. He made detailed preparations for the crime, went armed to the scene, placed a mask over his face, waited in hiding moments before his victim's approach and gave up the enterprise only when discovered by other hotel employees. The evidence was sufficient to convict appellant of attempted robbery. (See People v. Dillon (1983) 34 Cal. 3d 441, 456 [evidence of attempted robbery sufficient where clear intent to rob, preparation, but no actual entry of intended robbery site]; People v. Vizcarra (1980) 110 Cal. App. 3d 858, 861-863 [attempted robbery properly found where defendant was near entry of liquor store with rifle under poncho, hid, then departed when customer approached].)"

Page 8, last line [80 Cal. App. 4th 765, advance report, 1st par., line 5]: renumber footnote 3 reference and footnote 3 text as footnote 4

Page 9, lines 1-4 from bottom [80 Cal. App. 4th 765, advance report, 4th par., lines 3-6]: delete sentence

Page 10, line 2 [80 Cal. App. 4th 766, advance report, line 2]: delete footnote 4 reference and footnote 4 text

Page 10, line 12 [80 Cal. App. 4th 766, advance report, 2d par., line 4]: after the period insert footnote 5 reference; footnote 5 text reads In his supplemental brief appellant argues making conviction for multiple attempted robberies dependent on the intent to rob multiple victims creates [81 Cal. App. 4th 910c] potential corpus delicti problems. This is so he argues since such intent is often only revealed by a defendant's out of court statements. (People v. Jones (1998) 17 Cal. 4th 279, 301-302.)

Assuming the corpus delicti rule requires evidence of an intent to commit multiple robberies on a single occasion independent of a defendant's out of court statements, that requirement is no different than for any offense having a specific intent or mental state element.

No corpus delicti issue was raised below. In any event the evidence independent of appellant's statements established a prima facie case that he intended to rob both Dixner and Terry. Appellant was in the hotel garage to commit a robbery. He was in the garage because as a former employee of the hotel he knew Dixner's routine in making bank deposits, part of that routine was that Dixner would be accompanied by Terry. It is reasonable to infer, therefore, appellant expected to confront and rob both of them.

Appellant raises additional issues in his supplemental brief concerning the attempted robbery issue none of which have merit.

Page 12: line 4 from bottom [80 Cal. App. 4th 767, advance report, 3d par., line 7]: after the period insert footnote 6 reference; footnote 6 text reads In a supplemental brief filed after oral argument appellant contends the trial court erred in failing to instruct concerning the factors necessary to the finding of multiple attempts. The jury was fully instructed concerning the elements of an attempted robbery and was told that each count charged a distinct crime and that each count was to be decided separately. The jury returned separate verdicts as to each victim. The instructions were sufficient.

In his supplemental brief appellant also argues that given the "uncommon circumstances here presented," CALJIC No. 6.02 [Abandonment of Attempt--When a Defense] was inadequate to explain the defense of abandonment. We disagree. The circumstances here were not so unique that CALJIC No. 6.02 was inadequate to explain that defense.

As modified, the petition for rehearing is denied.

There is no change in the judgment.