Rivers

People v. Rivers

Good Law
1993 Cal. App. LEXIS 1218·20 Cal. App. 4th 1040·25 Cal. Rptr. 2d 602·93 Daily Journal DAR 15392·93 Cal. Daily Op. Serv. 8985
Court of Appeal of CaliforniaDecember 6, 1993E011383California4,987 words

Opinion

Opinion

Dabney, J.

A jury, convicted defendant and appellant Lee Rivers of robbery (Pen. Code, § 211) ; defendant having waived a jury on enhancement allegations, the court then found true the allegation that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). Defendant was sentenced to a total term of eight years, comprised of the three-year midterm for the robbery, and a five-year enhancement.

On this appeal, defendant argues that the CALJIC No. 2.21.2 impermissibly and prejudicially authorized the jury to believe testimony based only upon a “probability” that it was truthful, thus lessening the prosecution’s burden of proof. He also alleges error in the trial court’s refusal to allow him to represent himself. We find merit only in his second contention, but find the error harmless. Accordingly, we affirm the judgment.

Statement of Facts

The prosecution presented only two witnesses, Edward Plunkett, the victim, and Officer Valmont Graham, who apprehended defendant. Plunkett’s testimony was by far the more important, and it was towards his testimony that the challenged instruction obviously related.

In short, Plunkett testified…

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