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People v. Anthony5/31/2002
Corinne S. Shulman, under appointment of the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany and Carlson M. Legrand, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Steven Vaughn Anthony was convicted of first degree residential burglary (Pen. Code, § 459 ), unlawful driving/taking a vehicle (Veh. Code, § 10851, subd. (a)), second degree commercial burglary (§ 459), and petty theft with a prior theft conviction (§ 666). In a bifurcated proceeding, the court found true the allegation that defendant suffered two prior serious or violent felony strike convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). He was sentenced to state prison for a total term of 50 years to life. He appeals contending (1) the trial court erred in denying his motion for a one-day continuance to produce a possible defense witness, (2) the trial court erred in instructing the jury with CALJIC No. 17.41.1, (3) the trial court abused its discretion in refusing to dismiss one of his strikes, (4) his three strikes sentence constitutes cruel and unusual punishment, and (5) his presentence credits were incorrectly calculated.
FACTS
On or about May 22, 1998, while Robert and Lee Manning were out-of-town, defendant burglarized their home and stole Mrs. Manning's 1989 Toyota Tercel. On May 25, defendant and two other men were caught stealing cartons of cigarettes from the Cigarettes Cheaper store. Defendant and the other men were apprehended. Inside a camper shell near where defendant was apprehended, officers found two pieces of luggage and other personal property taken from the Mannings' home. Cartons of cigarettes and a bag containing a long flathead screwdriver and pry bar used to gain access to the Mannings' home were found in a black bag inside one of the pieces of recovered luggage.
Defendant was interviewed on the afternoon of his arrest. After being advised of his Miranda rights, defendant agreed to talk but denied knowledge of either the Manning burglary, driving the stolen Toyota or having anything to do with the cigarette theft. The next day, when the officer went to get defendant's palmprint and photo, defendant said he wanted to speak with him. After being reminded of his rights, defendant admitted going to the Manning home with Orlando Rambo, entering the house, putting socks on his hands and carrying out a stereo. Defendant further admitted driving the stolen Toyota the night he went to the Mannings' home and to going to a white house, where the stolen VCR was sold. Rambo then took the stolen car that night, after dropping defendant off.
According to defendant, the day of the cigarette store theft, Rambo picked him up in the Toyota, along with two others. Defendant said that one of the others came up with the idea to steal cigarettes and Rambo stayed behind because it looked suspicious for all four to be driving together. Defendant admitted he had driven the Toyota to the shopping center to commit the theft, knowing it was stolen and that he engaged in his activities "for money."
MOTION TO CONTINUE
On August 8, 2000, the morning of the thirteenth day of trial, after the prosecution had rested, defendant requested a one-day continuance before beginning his case. After an unreported conference, the court granted the continuance and sent the jurors home, directing them to return the following day. The next morning, defense counsel represented that in the course of preparing for tr
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