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People v. Abdi Mohamed

December 5, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ABDI MOHAMED, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. (Super. Ct. No. SCD218838)

The opinion of the court was delivered by: Mcconnell, P. J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

A jury convicted Abdi Mohamed of robbery (Pen. Code, § 211).*fn1 The trial court sentenced him to five years in state prison. Mohamed appeals, contending there is insufficient evidence to support the jury's verdict. He also contends the trial court erred by instructing the jury on conspiracy because conspiracy is not a valid theory of criminal liability. We conclude these contentions lack merit and affirm the judgment.

BACKGROUND

Prosecution Evidence

Around 12:45 a.m., Breanna Gomez was leaving a cafe when someone pushed her friend against her. Gomez fell against a wall. She heard someone refer to her and her friend as "b--s." She turned and saw three men wearing sheer, form-fitting masks. She felt an object she thought was a gun in her back and was pushed back against the wall. One man's mask ended up between his nose and lower lip. Gomez could see the man's jaw line and facial structure, including the shape of his chin, cheek, and nose. He was Black, approximately six feet tall and thin. He had a moderate beard defining his jaw line. He wore a black hooded sweatshirt, light colored pants, and a black beanie. He took her cell phone, car keys, and a $20 bill. One of the men also took her purse. Gomez then ran back into the cafe.

The owner of the cafe was standing with some customers outside the cafe when a man walked up. The man asked if the people outside were gang banging, and when he learned they were not, he pulled a mask over his entire face and drew what appeared to be a gun. The man walked over to another group of people that included Gomez and her friend. Meanwhile, the owner went into the cafe and called 911. During the 911 call, the owner described the man he saw as a six-foot tall Black man around 25 years old. The man had a medium build and wore black pants, a black shirt, and a black and white striped jacket.*fn2

Another unidentified person told the 911 operator one of the robbers was Black and wore a black shirt, a black hooded sweatshirt, and gray sweats. The man also wore a black beanie as a mask. The unidentified person said one of the other robbers was wearing a Spiderman backpack.

Froilan Medina was inside the cafe when the incident occurred. He saw a Black man walk up to the restaurant and pull a black beanie mask down to his mouth area. The man was between five feet ten inches and six feet tall. He had a thin patch of hair on his chin and was wearing dark pants and a red hooded sweater with designs.*fn3

Medina went out of the restaurant and saw the man run away with two other Black men following him. One of the followers was around six feet tall and wore a mask, a black and gray hooded sweatshirt, and black baggie sweatpants. The other man wore a black hooded sweatshirt and gray sweatpants. He dropped what appeared to be a gun and went back to pick it up. Police officers found a magazine for a toy pistol in the same area. DNA testing of the magazine was inconclusive as there was not enough DNA for a comparison.

One of the police officers who responded to the incident drove around the neighborhood looking for suspects. Shortly after the robbery, the officer saw Mohamed walking along a street approximately four blocks from the cafe and holding an umbrella in a manner that partially blocked his face.*fn4 Mohamed wore gray sweatpants,*fn5 a black hooded sweatshirt, a beanie, and a neck scarf.*fn6 The officer detained Mohamed, confirmed he fit the description of one of the robbers, and conducted curbside lineups with Gomez and two other witnesses.

Gomez told the officer who brought her to the lineup that she was 80 percent sure Mohamed was one of the men who robbed her because he was wearing the same clothing and had the same facial hair, facial features and build.*fn7 She could not be 100 percent sure because the men were wearing masks. Gomez later identified Mohamed as one of the robbers at both the preliminary hearing and the trial.

Medina also identified Mohamed as one of the robbers at the curbside lineup. At the time, he said he was "completely sure" about his identification because Mohamed was wearing the same clothes as one of the robbers. At trial, he said he had "a little bit" of doubt about his identification, but remained ...


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