People v. Daniel CA1/3

Filed 6/20/14 P. v. Daniel CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A137644 v. DARNELL DANIEL, (Alameda County Super. Ct. No. H49926A) Defendant and Appellant.

After a jury trial on charges arising from a home invasion robbery of two victims by two perpetrators, defendant Darnell Daniel was found guilty of first degree residential robberies with true findings of related firearm use enhancements (Pen. Code, §§ 211, 12022.5, subd. (a), 12022.53, subd. (b)1) (counts one and two), making criminal threats with true findings of related firearm use enhancements (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a)) (counts four and five), and dissuading witnesses from testifying by force or threat of force with true findings of related firearm use enhancements (§§ 136.1, subd. (c)(1), 1203.06, subd. (a)(1), 12022.5, subd. (a)) (counts six and seven). The jury was unable to reach a verdict on count three, kidnapping to commit a robbery of one of the victims (§ 209, subd. (b)(1)), and after the court declared a mistrial that count was ultimately dismissed on the motion of the district attorney. At sentencing the trial court indicated it had read and considered the probation department report. After hearing a statement by one of the victims and argument by

1 All further unspecified statutory references are to the Penal Code.

1

counsel, the court commented that “[f]actually, this is a home-invasion robbery. [One victim] is home before the second victim arrives at home. So while the robbery isn’t complete because the robbers haven’t reached a place of safety, the one robbery is on- going at the time it’s interrupted by the second victim. The crime partners pass the gun back and forth between each other a[s] they are doing this home invasion robbery. [Defendant,] who’s before the court today is, one might say, the more talkative, loquacious of the two. I am not sure if that indicates his position of kind of having led [the co-perpetrator], who’s a juvenile, into this or not. He would disclaim that in his statement. I am not a hundred percent convinced that that’s correct.” The court indicated it was not discounting the circumstances that defendant told the police where they could find the firearm, that after the robbery the police found most of the stolen property at the co-perpetrator’s house, and that at the time of defendant’s arrest he was found with an iPhone, guitar, one victim’s backpack, and some money. In sentencing defendant to an aggregate term 34 years and 8 months, the court chose count one (robbery) as the principal offense and imposed 16 years consisting of the upper term of six years “[f]or the factors in aggravation which are outlined in the probation report,” 2 and a mandatory consecutive term of 10 years for the related firearm