People v. Smith CA2/6 ( 2015 )


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  • Filed 12/17/15 P. v. Smith CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    THE PEOPLE,                                                                  2d Crim. No. B257220
    (Super. Ct. No. BA420012)
    Plaintiff and Respondent,                                               (Los Angeles County)
    v.
    DEONDRE ALFRED SMITH,
    Defendant and Appellant.
    A jury convicted appellant Deondre Alfred Smith of second degree
    robbery. (Pen. Code, § 211.)1 He waived a jury trial on allegations that he had a prior
    strike (§§ 667, subds. (b)-(j), 1170.12), had served three prior prison terms within five
    years (§ 667.5, subd. (b)), and had a prior serious felony conviction (§ 667, subd. (a)(1)).
    The trial court found the allegations to be true. Appellant was sentenced to an aggregate
    prison term of 12 years, consisting of 3 years for the offense, doubled as a second strike,
    5 years for the prior serious felony conviction, and 1 year for one of the prior prison
    terms. The trial court stayed a one-year enhancement for one of the other prior prison
    terms (§ 654) and, pursuant to the People's motion, dismissed the remaining prior prison
    term allegation.
    1
    All further statutory references are to the Penal Code.
    Appellant contends there was insufficient evidence to support the jury's
    guilty verdict and the trial court's finding that he suffered the prior serious felony
    conviction used as a first strike to double his three-year sentence and as a five-year
    sentence enhancement. The People concede that the evidence of the prior conviction was
    insufficient. We affirm appellant's conviction, reverse the trial court's finding that he
    suffered the prior serious felony conviction, and remand for retrial on that allegation.
    FACTS
    Victim Michael Brennan was returning home from a club in Hollywood
    around 2:00 a.m. He had consumed at least three beers and was "buzzed" but "not . . .
    intoxicated." He entered the Metro Red Line station at Hollywood and Highland and got
    on the down escalator. A man in a red shirt in front of him on the escalator, later
    identified as Tarrant Stewart, approached him and began asking for money. When they
    reached the bottom of the escalator, the victim noticed appellant, a third man, and a
    woman standing there.
    Appellant and Stewart dragged the victim about 10 feet into an elevator.
    The third man and the woman accompanied them. Appellant and Stewart threw him
    on the ground. The third man stood back and the woman said, "Don't hurt him." The
    victim said he had no money and pleaded with them not to hurt him. Appellant held him
    down and punched him in the face. Someone—the victim thought appellant but was
    unsure—said, "Get it, get it, get it." Someone reached into the victim's pocket and took
    his iPhone 4S.
    The group of four left the elevator together. The victim chased them up the
    stairs. Outside the station, appellant and the woman started walking towards the victim
    "like nothing [had] happened." The victim could not see the other two males. He saw
    police officers nearby and began screaming at appellant, "You stole my phone[!] You
    stole my phone[!]" Appellant screamed, "I did not steal your phone[!]" The police
    officers came over. The victim told them what had happened. He spoke coherently and
    articulately. Appellant was arrested. He did not have the victim's phone, which was
    never recovered.
    2
    DISCUSSION
    Appellant contends that there is insufficient evidence that he committed the
    robbery. In reviewing claims of insufficient evidence, we examine the entire record in
    the light most favorable to the judgment to determine whether there is substantial
    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. (People v. Maciel (2013)
    
    57 Cal. 4th 482
    , 514-515.) We do not reweigh the evidence or reassess the credibility of
    witnesses. (People v. Houston (2012) 
    54 Cal. 4th 1186
    , 1215.) We accept the logical
    inferences that the jury might have drawn from the evidence even if we would have
    concluded otherwise. (People v. Streeter (2012) 
    54 Cal. 4th 205
    , 241.) If the trier of
    fact's findings are reasonably justified by the circumstances, the opinion of the reviewing
    court that a contrary finding might also reasonably be reconciled with the circumstances
    does not warrant reversing the judgment. (People v. Jones (2013) 
    57 Cal. 4th 899
    , 961.)
    The evidence, taken in the light most favorable to appellant's conviction,
    showed that appellant came down the escalator shortly before Stewart and the victim and
    waited for them at the bottom. Appellant's pre-positioning himself showed that he
    planned the robbery with the others. Once the victim reached the bottom, appellant,
    Stewart, and the unidentified man and woman surrounded him. Appellant and Stewart
    pulled him into the elevator, a spot of relative isolation where they could commit the
    robbery. Appellant pushed the victim to the ground, held him down, and punched him,
    keeping him disabled and allowing one of the others to rob him. Appellant told the
    others to "get it," i.e., steal the victim's phone, which one of the others did. Once the
    phone was taken, the group retreated up the stairs and escalator and out of the station.
    This was evidenced by testimony from the victim, the investigating officer, and video
    footage of the station showing the incident up to the time the victim was dragged into the
    elevator. It amply supports appellant's guilt on an aiding and abetting theory. (See
    People v. Mitchell (1986) 
    183 Cal. App. 3d 325
    , 330.)
    The People concede that there was insufficient evidence of appellant's 2012
    conviction for battery with serious bodily injury (§ 243, subd. (d)), which was used as a
    3
    prior strike to double his three-year sentence and as a five-year sentence enhancement.
    Accordingly, we reverse that finding and remand to the trial court to retry the issue. (See
    People v. Barragan (2004) 
    32 Cal. 4th 236
    , 239 ["[R]etrial of a strike allegation is
    permissible where a trier of fact finds the allegation to be true, but an appellate court
    reverses that finding for insufficient evidence"].)
    DISPOSITION
    The trial court's true finding that appellant suffered a prior conviction for
    battery with serious bodily injury is reversed and this matter is remanded for retrial on
    that allegation. In all other respects, the judgment is affirmed.
    NOT TO BE PUBLISHED.
    PERREN, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    4
    Curtis B. Rappe, Judge
    Superior Court County of Los Angeles
    ______________________________
    Law Offices of Pamela J. Voich, Pamela J. Voich, under appointment by
    the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
    Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
    Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney General,
    for Plaintiff and Respondent.
    

Document Info

Docket Number: B257220

Filed Date: 12/17/2015

Precedential Status: Non-Precedential

Modified Date: 12/17/2015