People v. Lasley CA4/1 ( 2015 )

Filed 4/14/15 P. v. Lasley CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066967
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1203308)
DAYVEON JOHNTA LASLEY et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Riverside County, Michael J.
Rushton, Judge. Affirmed in part, reversed in part, and remanded.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant Dayveon Johnta Lasley.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and
Appellant Nathaniel Tyrell Lakey, Jr.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and William M. Wood, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Dayveon Johnta Lasley and Nathaniel Tyrell Lakey, Jr., of two
counts of robbery (Pen. Code, § 211)1 and one count of street terrorism (§ 186.22, subd.
(a)). As to the robbery counts, the jury also found true allegations Lasley and Lakey
committed the robberies for the benefit of, at the direction of, or in association with a
criminal street gang (gang benefit enhancements) (§ 186.22, subd. (b)(1)(C)). The trial
court sentenced Lasley to 13 years in prison and Lakey to 14 years in prison.
Lasley and Lakey both appeal, contending there was insufficient evidence to
support the gang benefit enhancements. Lakey additionally contends the court erred by
admitting an officer's hearsay testimony and by not imposing a one-third term sentence
for the gang benefit enhancement related to the second robbery count. The People
concede the latter error and we remand the matter for resentencing. We affirm the
judgment in all other respects.
BACKGROUND
Lasley and Lakey entered a liquor store together. Lakey walked to the rear of the
store while Lasley went to the register, pointed a gun at the cashier's face, and demanded
money. When another employee heard the cashier ask not to be shot, the employee stood
up. Lasley pointed the gun at the employee's face and then back at the cashier. At some
point, Lakey moved next to Lasley and tried to get behind the front counter. The cashier
1 Further statutory references are also to the Penal Code unless otherwise stated.
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took the money from the cash register and placed it on the counter. Lasley took the high
denomination bills. Then, he and Lakey left the store.
Police officers responded to the store. One of the officers obtained a description
of Lasley and Lakey and broadcast it to officers checking the surrounding area. Within a
few minutes, officers contacted and detained Lasley and Lakey. The two store
employees were transported to the location where Lasley and Lakey were detained. The
cashier identified Lasley as one of robbers. The other store employee identified both
Lasley and Lakey as the robbers.
Near where Lasley and Lakey were detained, officers found nineteen $20 bills,
one $1 bill, and one $5 bill. They also found a pellet gun in the same location.
A gang expert opined the 65 Menlo Gangster Crips gang (Menlo Crips) was a
criminal street gang and Lasley and Lakey were active members of it. Based on
hypotheticals patterned after the facts of this case, the expert opined the charged crimes
amounted to active gang participation, were committed in association with the Menlo
Crips, and were committed to benefit the Menlo Crips. The expert explained a gang
member will commit a crime with another gang member and not with a nongang
member. The two gang members function as a team with assigned roles. The second
gang member acts as a lookout to cover the back of the perpetrator and is trusted not to
apprise law enforcement of the crime. The expert also opined the robberies benefited
Menlo Crips because the proceeds would have been used by Lasley and Lakey to pay a
tax to the gang, which the gang would use to finance its criminal activities.
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The fact Lasley and Lakey were not wearing gang attire, did not mention their
gang, and did not make gang hand signs during the robbery did not alter the expert's
opinion. He explained gang members do not want to be tied to or have their gang tied to
crimes not involving rival gang members. It is only when committing crimes against
rival gang members that they want their identity and gang affiliation known because such
crimes gain respect and rival gang member victims will not report the crimes to law
enforcement.
DISCUSSION
I
Hearsay Testimony
A
At trial, one of the victims testified Lakey never tried to get behind the front
counter. Over Lakey's hearsay objection, a police officer testified the victim previously
told him Lakey tried to get behind the counter. The court overruled Lakey's objection,
finding the victim's statement to the officer was a prior consistent statement.
Lakey contends the court erred in admitting the statement because it was not a
prior consistent statement. The People concede the statement was not a prior consistent
statement, but contend it was nonetheless admissible as a prior inconsistent statement.
We agree.
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B
"We review a trial court's rulings on the admission and exclusion of evidence for
abuse of discretion." (People v. Chism (2014) 58 Cal.4th 1266, 1291.) We may affirm
the ruling as long as it is correct on any ground. (Id. at p. 1295, fn. 12.)
Subject to the provisions in Evidence Code sections 1235 and 770, a statement by
a witness inconsistent with the witness's trial testimony is admissible to establish the truth
of the matter asserted. (People v. Chism, supra, 58 Cal.4th at p. 1294.) Evidence Code
section 1235 provides: "Evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the
hearing and is offered in compliance with [Evidence Code] Section 770."
"Evidence Code section 770 provides for the admission of a prior inconsistent
statement of a witness where '[t]he witness was so examined while testifying as to give
him an opportunity to explain or deny the statement . . . .' " (People v. Garcia (1990) 224
Cal.App.3d 297, 303.) "[T]he 'realistic opportunity' which must be afforded the witness
to explain or deny the statements under [Evidence Code] section 770 requires reference
to more than one of the following, 1) the people involved in the conversation, 2) its time
and place, or 3) the specific statements that were made during it." (Id. at p. 304.)
In this case, after the victim denied Lakey tried to go behind the counter, the
prosecutor followed up with the victim:
"[PROSECUTOR:] Did you tell the officer that [Lakey] at some point tried to
come behind the counter? [¶] . . . [¶]
"[VICTIM:] I don'tI don't remember. [¶] . . . [¶]
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"[PROSECUTOR:] When the officer got there, did you tell him what happened?
"[VICTIM:] Correct, I did.
"[PROSECUTOR:] Did you tell him the truth about what happened?
"[VICTIM:] Correct, I did.
"[PROSECUTOR:] And were the events fresher in your mind that night than they
are today?
"[VICTIM:] Correct.
"[PROSECUTOR:] Did [Lakey] try to come behind the counter?
"[VICTIM:] I don'tI don't remember."
This exchange satisfies each of the requirements for the requisite realistic
opportunity to explain or deny the statement required by Evidence Code section 770.
Accordingly, Lakey has failed to establish the trial court abused its discretion in
admitting the statement.
II
Gang Benefit Enhancements
Lasley and Lakey both contend there was insufficient evident to support the gang
benefit enhancements. "In considering a challenge to the sufficiency of the evidence to
support an enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
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evidence." (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) "A reversal for insufficient
evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there
sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
To establish the truth of a gang benefit enhancement allegation under section
186.22, subdivision (b)(1), the prosecutor must prove: "first, that the defendant
committed a felony (a) for the benefit of, (b) at the direction of, or (c) in association with
a criminal street gang; and second, that in connection with the felony, the defendant
harbored the specific intent to (a) promote, (b) further, or (c) assist in any criminal
conduct by gang members." (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358;
accord, People v. Gardeley (1996) 14 Cal.4th 605, 616-617; People v. Williams (2009)
170 Cal.App.4th 587, 625.) The prosecution may meet its burden of proving a gang
benefit enhancement allegation by presenting testimony from a gang expert. (People v.
Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez (2004) 33 Cal.4th 1040,
1047-1048; People v. Gardeley, supra, at pp. 617-620.)
Here, the evidence viewed most favorably to the judgment showed Lasley and
Lakey entered the store together, Lakey went to the back of the store while Lasley
confronted the victims. During the confrontation, Lakey joined Lasley, stood by him,
and tried to get behind the counter. After Lasley took the money from the cash register,
the two men left the store together. Soon after the robbery, the two men were found
together a short distance from the store. The gang expert identified both men as active
Menlo Crips members. In addition, the expert testified gang members commit crimes
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with one another, rather than with non-gang members, to facilitate the assignment of
particular roles in carrying out the crime and to ensure the participants will cover for one
another during the crime and will not cooperate with law enforcement after the crime.
The jury could have reasonably inferred from this evidence the men committed the
robberies in association with the Menlo Crips gang. (In re Daniel C., supra, 195
Cal.App.4th at pp. 1358-1359 [evidence defendant committed a crime in the company of
known gang members and affiliates is sufficient to establish defendant committed the
crime in association with a criminal street gang].) The jury also could have reasonably
inferred from this evidence the men committed the robberies with the specific intent to
promote, further or assist gang members in commission of the crime. (People v. Albillar,
supra, 51 Cal.4th at p. 68 ["[I]f substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a gang, the jury
may fairly infer that the defendant had the specific intent to promote, further, or assist
criminal conduct by those gang members"].) Accordingly, Lasley and Lakey have not
established there was insufficient evidence to support the gang enhancements.
III
Sentencing
A
The trial court originally sentenced both Lasley and Lakey to 14 years in prison.
Their sentences consisted of the middle term of three years for the first robbery count,
plus 10 years for the gang benefit enhancement related to the first robbery count, plus one
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year (one-third of the middle term) for the second robbery count and a concurrent 10
years for the gang benefit enhancement related to the second robbery count.
A few months later, the Department of Corrections and Rehabilitation notified the
court Lasley's sentence was unauthorized under section 1170.1, subdivision (a), because
the court imposed the full term instead of one-third of the full term for the gang benefit
enhancement applicable to the second robbery count. In response, the trial court
conducted a hearing to reconsider all of its sentencing choices and modified Lasley's
sentence, ordering the entire term for the second robbery count to be served concurrently
with the first term.
B
Lakey contends his sentence is similarly defective. The People concede and we
agree with this contention.
Section 1170.1, subdivision (a), provides: "The subordinate term for each
consecutive offense shall consist of one-third of the middle term of imprisonment
prescribed for each other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any specific
enhancements applicable to those subordinate offenses." (Italics added.) This provision
applies to a sentence for a gang benefit enhancement and, when imposed in a consecutive
subordinate term, compels reduction of the sentence to one-third of the enhancement
term. (§ 1170.11; People v. Moody (2002) 96 Cal.App.4th 987, 992.) As the trial court
erroneously sentenced Lakey to the full term, rather than one-third of the full term, for
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the gang benefit enhancement related to the second robbery count, we reverse the
judgment as to Lakey's sentence and remand the matter for resentencing.
DISPOSITION
As to Lakey's sentence, the judgment is reversed and the matter is remanded for
resentencing consistent with this opinion. The judgment is affirmed in all other respects.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
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