People v. Casey CA2/6

Filed 5/18/16 P. v. Casey CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B261361 (Super. Ct. No. MA062908-02) Plaintiff and Respondent, (Los Angeles County)

v.

DOMINIQUE ZAFIR CASEY,

Defendant and Appellant.

Dominique Zafir Casey appeals from the judgment entered after a jury convicted him of attempting to dissuade a witness from reporting a crime (count 1 - Pen. Code, § 136.1, subd. (b)(1));1 two counts of second degree robbery (counts 2 and 5 - § 211.); possession for sale of cocaine base (count 7 - Health & Saf. Code, § 11351.5); transportation of a controlled substance (count 8 - Id., § 11352, subd. (a)); and felony vandalism (defacement with graffiti - count 9 - § 594, subds. (a)(1), (b)(1)). As to the vandalism count, the jury found true an allegation that appellant had committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Appellant admitted that he had been convicted of a prior serious felony within the meaning of section 667, subdivision (a)(1) and a prior "strike" within the meaning of California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

1 Unless otherwise stated, all statutory references are to the Penal Code. 1

The trial court sentenced appellant to prison for an aggregate term of 15 years. For the robbery in count 2, it selected the low term of two years and doubled it to four years because of the prior strike. On count 7, the court imposed a consecutive term of two years, eight months. On count 9, it imposed a consecutive term of one year, four months (one-third the middle term of two years, i.e., eight months, doubled because of the prior strike) plus two years for the gang enhancement. For the prior serious felony conviction (§ 667, subd. (a)(1)), the court imposed an additional five years. It imposed concurrent sentences on counts 1, 5, and 8 and stayed execution of the sentences pursuant to section 654. This appeal involves only counts 5 (robbery of Ramatu Waller) and 9 (felony vandalism with a gang enhancement). As to count 5, appellant contends: (1) the evidence is insufficient to show that the robbery was accomplished by means of force or fear; and (2) the trial court erroneously failed to instruct sua sponte that grand theft from the person (§ 487, subd. (c)) is a lesser included offense of robbery. As to count 9, appellant contends: (1) his counsel was ineffective; and (2) for the gang enhancement, the trial court should have imposed an eight-month consecutive term instead of a two-year consecutive term. Only the second contention as to count 9 has merit. We reduce appellant's aggregate term from 15 years to 13 years, 8 months. In all other respects, we affirm. Facts Relevant to Count 5 - Robbery of Ramatu Waller During an argument inside a condominium, appellant punched Bobby Maddox in the mouth. Maddox stumbled and dropped his cell phone. Appellant picked up the phone and ripped a chain off Maddox's neck. He put the phone and chain inside his pocket. Appellant ran outside and entered the passenger side of a car. The car's driver, Rekeina Rubin, started to drive away. Ramatu Waller lived in the condominium with Maddox. She ran alongside the car and got into the back seat. She pleaded with appellant to return the cell phone and chain. She was crying and scared.