People v. Smith CA2/8

Filed 11/3/14 P. v. Smith CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B252507

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA384019) v.

ELMO SMITH, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.

Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Senior Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

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Elmo Smith appeals from the judgment following his conviction for second degree robbery. We affirm.

FACTS AND PROCEEDINGS

About 5:50 p.m. in the morning on April 28, 2011, victim D’Alan Horton was walking on Vermont Avenue on his way to school. Horton was carrying his cellphone in his hand. Horton walked past appellant Elmo Smith and a second man. Appellant came up from behind Horton, tapped him on the shoulder, and asked if he could use Horton’s phone. Horton said no. Appellant tried to grab Horton’s phone. As they struggled over the phone, appellant told the second man who was standing about ten feet away to “get the gun, get the gun.” Appellant then managed to free the phone from Horton’s grasp, jumped on a silver bike near the second man, and rode away. Horton estimated that 45 to 50 seconds passed between the time appellant tapped Horton’s shoulder and when appellant fled. Horton walked to a nearby Laundromat from where he called the police. Officers arrived. Horton told them his assailant was over 40 years old, was wearing glasses, and had marks or scars on his face and a mustache and goatee. The next morning at about 5 o’clock, police stopped appellant, who generally matched Horton’s description, as appellant rode a bike that looked like the bike ridden by Horton’s assailant. Police arrested appellant because he was riding the bike in the dark without lights. On May 2, 2011, four days after the robbery, Horton selected appellant from a six-pack of photographs. The People charged appellant by information with robbing Horton. The information further alleged appellant had suffered prior strikes under the Three Strikes law and had served prior prison terms. At trial, evidence of Horton’s six-pack identification was introduced. The jury convicted appellant of second degree robbery, and the court found true the special allegations, but at the People’s request, the court