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People v. Bell2/27/2003
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
This ordinary burglary case has generated a great deal of media attention -- much of it misleading -- due to the application of the Three Strikes law. (See 60 Minutes (CBS broadcast of May 7, 2000) Bicycle Thief; Sacto. Bee, Jurors Get Boot Over "3 Strikes" Objection (Feb. 2, 2000) p. B-1; id., A Bike Theft, A Murder--"3-Strikes" is Equalizer (Feb. 21, 2000), p. B-1); id., Bid to Ease "3-Strikes" Penalty on Lesser Crimes (April 9, 2000), p. A-1; id., Bike Thief Laughs Off 35- Years-to-Life Term (May 11, 2000), p. A-1.)
Early one morning, defendants Donna LeMaire and Steven Vincent Bell drove to Roseville, where Bell took a $350 bicycle out of a garage. The police caught them red-handed: LeMaire was in Bell's truck, with the bicycle in the back; a tracking dog followed a scent from the garage to where Bell was hiding.
The jury convicted LeMaire of burglary and the court placed her on probation.) The jury convicted Bell of burglary and the misdemeanor crime of resisting arrest. Two jurors refused to apply the Three Strikes law: After the court replaced those jurors, the new jury found Bell had suffered two prior felony convictions which qualified as strikes. The court sent Bell to prison for 35 years to life.
Defendants principally contend the trial court abused its discretion by denying their motions for continuances to enable them to secure the attendance at trial of Vince Timblin, whom they accused of stealing the bicycle. This is closely connected to a related contention, raised in different degrees by each defendant, that the trial court improperly limited their ability to develop and present a defense of third-party culpability. We conclude that because defendants took no reasonable steps to ensure Timblin's presence at trial, failed to show how a continuance would result in obtaining his presence, and never established how Timblin's testimony would materially exculpate them, no error occurred regarding the motions for continuances. Similarly, we conclude no prejudicial impairment to the defense theory of third-party culpability took place.
In addition, defendant Bell contends the court misinstructed the jury on his failure to explain evidence, the prosecutor committed misconduct during cross-examination of Bell, the court improperly removed jurors who refused to apply the Three Strikes law, and his trial attorney was incompetent. Defendant LeMaire contends no substantial evidence supports her conviction as an aider and abettor, and the trial court gave an improper "pinpoint" instruction on aiding and abetting.
We shall affirm the judgment as to each defendant.
FACTS
People's Case
At about 3:00 a.m. on February 15, 1999, Kathleen Kidd saw two people pull up in front of her house in Roseville. A woman was driving. The two kissed, then a man left the truck and went through a gate into the backyard of the house next door, belonging to Dr. Riffell. The man returned to talk to the woman, then again went into the Riffell backyard. Defendants resembled the two people Kidd saw in the truck.
The man "was on the thin side. I guesstimate like, I think, early twenties. Height, average. Nothing, you know, outstanding that I would remember. Short hair." The kiss was "a big, lingering kiss." On cross-examination Kidd testified the man was " ot skinny, skinny. But he wasn
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