People v. Gathright CA2/6

Filed 5/3/16 P. v. Gathright CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B258727 (Super. Ct. No. BA410472-01) Plaintiff and Respondent, (Los Angeles County)

v.

EMMANUEL GATHRIGHT,

Defendant and Appellant.

Emmanuel Gathright appeals a judgment following conviction of three counts of second degree robbery, with findings that he committed the crimes to benefit a criminal street gang, a principal personally used a firearm during commission of the crimes, and he suffered a prior serious felony and strike conviction. (Pen. Code, §§ 211, 186.22, subd. (b)(1)(C), 12022.53, subd. (b), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)1 We modify the judgment to award one additional day of actual custody credit, but otherwise affirm. FACTUAL AND PROCEDURAL HISTORY During the afternoon of February 1, 2012, two Black men entered Zeus Roby Jewelry store in Los Angeles. The men, later identified as Gathright and Len Breazean, wore dark-colored hooded sweatshirts. Breazean called store owner Hugo Perez aside, pointed a handgun at Perez's head, and demanded that he open the store safe.

1 All further statutory references are to the Penal Code unless stated otherwise.

After Perez opened the safe, Breazean removed cash, gold, and jewelry and placed the items inside his sweatshirt pocket. While Breazean emptied the safe, Gathright stood in front of the counter where employees Jessica Banda and Bryon Escobar worked. Gathright informed Breazean that Escobar had a taser and Gathright then directed Banda and Escobar "not to move." Banda and Escobar believed that Gathright held a firearm because he "was pointing" at them through his sweatshirt. Gathright also looked outside the store during the robbery. After taking items from the safe, Breazean took gold pieces from Banda's desk and then took Perez's and Escobar's wallets. Gathright and Breazean ran from the store to a waiting black-colored Ford Mustang automobile. As he fled, Breazean dropped the wallets. Perez and Escobar gave chase; Perez fired the taser at Breazean, who responded by firing the handgun at Perez. Perez was not injured, but Breazean was struck by the taser dart. He was "shaking," and had difficulty walking due to the dart. The getaway vehicle left quickly with Breazean and Gathright inside. Perez and Escobar returned to the jewelry store and telephoned for police assistance. A surveillance camera recorded the robbery but the video-recording did not clearly reflect Gathright's facial features, only his physical stature and build. At trial, the prosecutor played the video-recording of the robbery. In photographic lineups, Perez, Banda, and Escobar later identified Breazean as the robber holding the firearm, but they were unable to identify Gathright. The three victims were also unable to identify Gathright at trial. Escobar explained that his attention was focused on the robber holding the firearm. In March 2013, Los Angeles Police Detective Adrian Lopez questioned Gathright in a recorded interview. Gathright admitted membership in the "135 Piru" criminal street gang, but denied involvement in the jewelry store robbery. During questioning, Lopez informed Gathright that he had viewed the jewelry store surveillance recording. Lopez also employed a ruse, stating that Breazean had implicated Gathright in