Armstead

Daryl B. Armstead was convicted by jury of three counts of robbery (counts 4, 5, and 9). (Pen. Code, § 211.) The jury also found true allegations that Armstead personally used a firearm in the commission of the counts 4 and 5 robberies (§ 12022.53, subd. (b)), and that he was armed with a firearm in the commission of the count 9 robbery. (§ 12022, subd. (a)(1).) The court declared a mistrial as to the remaining robbery counts and their allegations (counts 1-3 and 6-8), on which the jury could not reach verdicts.

As part of an agreement, Armstead subsequently pleaded guilty to the remaining robbery counts and admitted their allegations, with the understanding he would be permitted to withdraw his guilty pleas and admissions if his new trial motion on counts 4, 5 and 9 were granted. After the trial court denied his new trial motion, Armstead was sentenced to a total term of 16 years in prison pursuant to the agreement.

Armstead appealed, contending the trial court prejudicially erred by denying his section 1538.5 motion to suppress, by giving the jurors an erroneous response to their request for clarification of CALJIC No. 2.90 (Presumption of Innocence—Reasonable…