People v. Reed CA1/1

Filed 7/19/16 P. v. Reed CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A143247 v. DEANTRAY REED, (San Francisco City & County Super. Ct. No. 219366) Defendant and Appellant.

A jury convicted defendant Deantray Reed of second degree robbery (Pen. Code, § 211),1 assault with force likely to cause bodily injury (§ 245, subd. (a)(1)), participation in a criminal street gang (§ 186.22, subd. (a)), and evading an officer (Veh. Code, § 2800.2, subd. (a)). However, the jury found untrue an alleged enhancement that defendant committed the assault and robbery for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The trial court sentenced defendant to a 15-year four- month prison term. In computing this term, the court stayed sentence on the gang participation and assault convictions pursuant to Penal Code section 654. On appeal, defendant challenges only his gang participation conviction. We agree the conviction is not supported by substantial evidence, and specifically that there is insufficient evidence he committed the assault and robbery with another gang member as required under Penal Code section 186.22, subdivision (a). We therefore reverse that portion of the judgment. Because the sentence on this conviction was stayed, there is no change in the prison term.

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

1

BACKGROUND Just before 2:59 p.m. on a June afternoon in 2011, the victim saw two men approach her on the street. After passing her, the men doubled back and attacked her. The taller of the two men held and dragged her, the shorter man hit her, and the victim screamed for help. After the struggle, the short man grabbed the victim’s purse and the tall man snickered. Both ran off and got into a red vehicle as neighbors arrived and called 911. The victim’s credit cards and other personal items were in her purse. The police tracked charges on the stolen credit cards to two nearby gas stations. Officers linked one credit charge to a station on Bayshore Boulevard. Viewing time- stamped surveillance footage, they concluded the charge was made between 3:15 p.m. and 3:20 p.m., approximately 16 to 23 minutes after the robbery.2 The footage shows a red boxy vehicle pulling into the station, a man later identified as Devante Robinson emerging from the driver’s seat, and that man entering the gas station snack shop. Officers linked a second credit charge to a station on Mission Street. That station’s records show use of the victim’s credit card at 3:58 p.m. Surveillance video from that time depicts a burgundy vehicle, and officers recognized one of its passengers as defendant, another as Alan McCoy, and a third as Robinson. When shown photo lineups, the victim identified defendant as the taller assailant, but could not identify anyone as the shorter assailant. She also identified defendant in court when she testified during trial. Other witnesses, neighbors who arrived on scene, also implicated defendant as the tall attacker, but none could identify the other assailant. At trial, police officers offered their opinions that defendant and McCoy were members of the “Down Below Gang,” and Robinson was at least an associate, if not a member of the gang. In height order, McCoy was shorter than defendant, who was shorter than Robinson. 2 One officer believed he started the surveillance video at the point where the robbery took place and watched for 10 minutes. Video time stamps showed activity somewhere between 3:16 p.m. and 3:22 p.m., 17–23 minutes after the 911 call. Another video time stamp, “15:34 minutes,” might show activity at 3:34 p.m., approximately 35 minutes after the 911 call, but could also have shown activity at 3:15 p.m.