P. v. Bacon 12/28/06 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B189950

Case Date: 03/14/2007

Preview:Filed 12/28/06 P. v. Bacon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER BACON, Defendant and Appellant.

B189950 (Los Angeles County Super. Ct. No. TA080607)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed. Shawn O'Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Defendant and appellant Sylvester David Bacon appeals from the judgment entered following a jury trial that resulted in his convictions for first degree robbery and elder abuse. Bacon was sentenced to eight years in prison. Bacon contends: (1) the trial court committed instructional error; (2) the evidence was insufficient to support the convictions; and (3) imposition of an upper term sentence violated his right to trial by jury under Blakely v. Washington.1 We affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts. Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On February 27, 2005, 73-year-old Lewis Green was awakened at approximately 3:45 a.m. by Bacon's knock on his front door. Green asked who was there. Bacon replied, "Mr. G., it's Sly." Green, who had known Bacon for approximately 20 years, recognized Bacon's voice. Bacon had performed work on Green's car, and Green had allowed Bacon, along with a woman named Lucille, to occasionally live in a different house he owned. Green asked Bacon what he wanted, and Bacon replied that his son was sick and it was an emergency. Green told him to call 9-1-1, and asked him to leave. He went back to bed. Shortly thereafter, Green was awakened by the sound of Bacon breaking in through his front door. Bacon charged Green, who had gotten out of bed, hitting him in the stomach and genitals and knocking him into a table, which broke. Bacon demanded to know where Lucille was. Green explained that Lucille was not present. Bacon, who was holding a crowbar, told Green he was upset with him and asked whether Green had any money. When Green said no, Bacon grabbed Green and took $681 from Green's

1

Blakely v. Washington (2004) 542 U.S. 296.

2

pocket. Bacon threatened to kill Green if he called police. He took Green's cellular telephone and left. 2. Procedure. Trial was by jury. Bacon was convicted of first degree robbery (Pen. Code,

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