People v. Lyons CA1/5

Filed 5/21/14 P. v. Lyons CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A138476 v. BRENT DAMION LYONS, (Alameda County Super. Ct. No. 169066) Defendant and Appellant.

Appellant Brent Damion Lyons appeals from his conviction, after a jury trial, of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), carrying a loaded firearm in a city (id., former § 12031, subd. (a)), and carrying a concealed firearm in a vehicle (id., former § 12025, subd. (a)(1)).1 He contends (1) the trial court erred in admitting the preliminary hearing testimony of the assault victim, Kiana Dominick, (2) the trial court erred in admitting a statement regarding appellant’s release from custody, and (3) his trial counsel was ineffective for failing to object to two witnesses’ testimony about statements made by Dominick. We reject appellant’s contentions and affirm. BACKGROUND The evidence at trial relevant to this appeal is as follows. Oakland Police Officer Darwin Téllez testified he was on patrol in a marked police car about 10:30 p.m. on

1 Former Penal Code sections 12025 and 12031 were repealed by Stats. 2010, ch. 711, § 4, operative January 1, 2012.

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November 4, 2011. A car behind him flashed its high beam headlights and the two cars pulled over. Dominick exited her car. Her right eye was swollen, her upper lip was bleeding, and she was shaking and crying hysterically. She told Téllez, “My boyfriend just beat me up.” Dominick wanted to go home and Téllez followed her there. When they arrived, Dominick told Téllez she heard three gunshots when she left her boyfriend’s residence. While Dominick, Téllez, and another officer, Eric Kim, stood in front of Dominick’s home, a truck drove by. Dominick pointed at the truck and said, “That’s him.” Téllez asked Dominick if that was the boyfriend who beat her up, and Dominick said it was. Téllez and Kim followed the truck and Téllez saw the driver turn his shoulders at a 45-degree angle and move his right forearm up and down three times. The truck stopped and appellant exited. Téllez found a loaded gun wedged between the driver’s and passenger’s sides, in a location consistent with the movements he saw appellant make. Officer Kim also testified to the events of November 4. He observed Dominick had swelling on her face and was upset. When the truck drove by, Dominick appeared fearful and said, “That’s him.” Kim asked her if the driver was the person who assaulted her and she said yes. After appellant was apprehended, Kim returned to Dominick’s home. Dominick told Kim appellant struck her in the face several times and she heard a single gunshot as she was trying to get away. Officer Quiana Johnson interviewed Dominick at a hospital on the night of the assault. Dominick consistently told Johnson appellant caused her injuries. Johnson took a three-page written statement from Dominick which Dominick reviewed and signed. The statement was admitted into evidence. Dominick did not testify at trial, but her preliminary hearing testimony was read to the jury. She testified about her statement to Johnson on the night of the assault. She told Johnson she had gone to appellant’s house and stayed there while he played dominoes with friends. Appellant was her boyfriend; they had been in a relationship for two and a half years. At some point, appellant began yelling at Dominick. Dominick told Johnson she remembered being on the ground while appellant repeatedly punched