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People v. Pettaway1/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
James A. Pettaway (appellant) was convicted, following a jury trial, of robbery. On appeal, he contends (1) the trial court's denial of his Wheeler/Batson motions requires reversal of his conviction; (2) the trial court violated his constitutional rights by erroneously removing a prospective juror on the prosecutor's challenge for cause; and (3) the trial court abused it discretion when it refused to mitigate appellant's sentence by striking one of his two prior convictions. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On September 26, 1997, appellant was charged by information with one count of robbery (Pen. Code, § 211). The information further alleged that appellant had two prior serious felony/strike convictions (§§ 667, subds. (a), (e)(2), 1170.12, subd. (c)(2)(A)) for robbery (§ 211) and attempted murder (§§ 664/187), one prior prison term (§ 667.5, subd. (b)) for vehicle theft (Veh. Code, § 10851), and two prior convictions for vehicle theft (Veh. Code, § 10851), for which he received probation.
Jury trial began on September 21, 2000. The jury found appellant guilty of robbery. The trial court found true the prior strike allegations and found not true the prior vehicle theft allegations.
On February 5, 2001, the trial court denied appellant's motion to strike one of his prior strike convictions and sentenced him to 35 years to life in state prison. This timely appeal followed.
FACTUAL BACKGROUND
Paulina Hoang was working as at a teller at Alameda Bank in Hayward on March 4, 1997. At approximately 2:50 p.m., appellant came up to Hoang's window and gave her a slip of paper that said: "No alarm. No dye pack. Nobody gets hurt. Give me the money." Appellant said nothing to Hoang when he gave her the note, but he did smile. She made a point of looking at him so she could remember what he looked like. He had an overbite with white teeth, and also had a mustache. He wore a long-sleeved black T-shirt with a circle on it and writing around the circle that said "San Leandro" and a round cotton fishing hat. Hoang gave appellant the money in her drawer as well as "bait money," which contained a tracking device between two bills. She gave him approximately $1,200.
Appellant then left the bank and Hoang immediately activated the alarm and wrote down a description of appellant and the incident. She also alerted her supervisor, Joan Pine. A police officer arrived within a couple of minutes. About 20 minutes later an officer took Hoang to view a person being held in front of the Hayward Library, about two blocks away. From about eight to ten feet away, Hoang identified appellant as the robber, saying she was 100 percent certain it was him. He had on a jacket and it looked like he had turned his shirt inside out. At trial, she was still certain appellant was the robber.
On March 4, 1997, Joan Pine was operations manager for Alameda Bank in Hayward. That day at about 2:53 p.m., teller Paulina Hoang told Pine that she had just been robbed. Pine put a plastic sheet over Hoang's teller window to protect evidence, and provided a listing of the bait money and the surveillance tape when police arrived. Laura West was a teller supervisor at the bank. She conducted an audit of Hoang's drawer after the robbery and found that about $2,000 was missing.
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