People v. Banks CA2/1

Filed 1/18/24 P. v. Banks CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B330260

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA501795) v.

DAVID BANKS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed. Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent. _______________________

MEMORANDUM OPINION1 A jury convicted defendant David Banks of second degree robbery (Pen. Code, § 211; count 1) and carjacking (id., § 215, subd. (a); count 2). Trial evidence showed another unknown individual participated with Banks in committing these crimes. Banks argues we should reverse his conviction because his trial counsel failed to request a pattern instruction telling jurors not to speculate whether the “other perpetrator” of the crimes was or would be prosecuted. We reject Banks’s claim of ineffective assistance of counsel and affirm his judgment of conviction. A. The Evidence at Trial In December 2021, Fernando A.2 was 17 years old and made money by selling chips and candy at his school. He used his earnings to buy a “pocket bike,” which is a miniature motorcycle. On December 5, 2021, after Fernando bought chips and candy for resale, he stopped to get gas for his pocket bike before going home. At the filling station, a gray SUV pulled up behind Fernando. Surveillance video showed that the SUV initially drove past the station, but then reversed and backed up to stop next to Fernando. An unknown man wearing a ski mask (Doe) got out of the SUV, approached Fernando, and asked where