Cumpian

A jury convicted George Barney Cumpian (defendant) of second degree robbery, and, in a bifurcated court trial after a jury waiver, the court found that he had suffered a prior term of imprisonment pursuant to Penal Code section 667.5, subdivision (b). He was sentenced to prison for the midterm of three years for the robbery, with a consecutive term of one year for the prior term of imprisonment, for an aggregate sentence of four years.

On appeal, defendant contends the jury committed misconduct by performing an experiment which violated both California law and the United States Constitution. He also alleges there was insufficient evidence to convict him of robbery.

Facts

On April 5, 1990, Kmart security guard Nelson Laurie watched as defendant removed a duffel bag from a display rack and placed two police-type flashlights into it. Laurie followed as defendant left the store without paying. Once outside, as defendant was about to enter his car, Laurie patted him on the shoulder, showed him his badge, and stated “K-Mart security. I want you to go back with me into the store.” The duffel bag was at defendant’s side and the strap around his neck. When Laurie and defendant…