People v. Barnes CA4/2

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E056547

v. (Super.Ct.No. RIF127702)

JOHNNIE LEE BARNES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside 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.

1 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 robbery, during which he used

a firearm, and two counts of being an ex-felon in possession of a firearm. (Id. at p. 2.)

We further noted that in bifurcated proceedings, the trial court 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 (id. at p. 13), which they did.

The trial court again made true findings as 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

2 667, 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 guilty1 to the

indictment.

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

1 Defendant incorrectly asserts that he pled no contest.

3 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.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

MILLER J.