People v. Downey CA2/3

Filed 5/19/15 P. v. Downey CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B252105

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA408020) v.

ALAN DOWNEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Modified and, as modified, affirmed with directions.

Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.

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

_____________________

Appellant Alan Downey appeals from the judgment entered following his convictions by jury on count 1 – second degree robbery, with firearm use, and committed while released on bail, count 2 – possession of a firearm by a felon, and count 3 – assault with a firearm, with firearm use, having suffered a prior felony conviction and a prior serious felony conviction. (Pen. Code, §§ 211, 12022.53, subd. (b), 12022.1, 29800, subd. (a)(1), 245, subd. (a)(2), 12022.5, 667, subds. (a)(1) & (d).) The court sentenced appellant to prison for 27 years. We modify the judgment and, as so modified, affirm it with directions. FACTUAL SUMMARY 1. People’s Evidence. Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on February 18, 2013, appellant quickly drove a car into a Home Depot parking lot on North Figueroa in Los Angeles. Appellant stopped near Michelle Orenday and her two children. Orenday was appellant’s girlfriend. Appellant began arguing with Orenday. Appellant exited the car, eventually put Orenday in a chokehold, and tried to force her into the car. Luis Robles, a bystander, intervened. Appellant (a felon) retrieved a loaded gun from the car and later approached Robles. Robles tried calling 911 on his cell phone, but appellant, using the gun, robbed Robles of his cell phone. Home Depot security guards (off-duty police officers) intervened. The guards pointed their guns at appellant and gave him commands, but he ignored the guards. Appellant walked to Robles and tossed the cell phone to him. Appellant, continuing to ignore the guards, walked to Orenday. Robles testified appellant “almost hugged her the same way that he was forcing her into the car.” Appellant put the gun in Orenday’s sweatshirt pocket. The guards took appellant into custody.