(Super. Ct. No. 10F00614)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jeffrey Luckey (aged 17 at the time) of robbery, but deadlocked on a charge of assault with a firearm and found not true an allegation that a principal in the robbery used a firearm. (Pen. Code, §§ 211, 245, subd. (a)(2), 12022, subd. (a)(1).) The assault count was later dismissed on the People's motion, and the trial court sentenced defendant to five years in prison. Defendant timely appealed.*fn1
On appeal, defendant contends that: (1) no substantial evidence supports the robbery conviction, and (2) the trial court erred when it admitted evidence about defendant's membership in a robbery team. We disagree and shall affirm the judgment.
The People's theory at trial was that defendant, his brother Tyrone Smith, and former co-defendant Julius Zachary, were members of the "Jack Boys"*fn2 who "jacked" or "robbed" people, and that this group robbed victim J.S. in January 2010. The group had robbed J.S. several months before, and knew he was "physically and emotionally fragile." The defense argued this was a case of "guilt by association" and J.S. misidentified defendant, as shown by a number of his inconsistent statements, and his memory problems.
The evidence at trial focused on three points: (1) the charged January 2010 robbery of J.S., (2) an uncharged October 2009 robbery of J.S., and (3) evidence about J.S.'s ability to accurately perceive and recall what happened.
J.S. testified that he was on a light rail train on the afternoon of January 16, 2010. At the Marconi Avenue station, three young men got on and sat around him, with Julius Zachary next to him, and defendant "and some other guy" sitting across from him. J.S. had known Julius and his brother Larry Zachary*fn3 because they used to be neighbors, and because J.S. and Larry had lived in the same foster home for a month. J.S. had seen defendant on the light rail before. In October 2009, at Arden Fair Mall, Larry, in the company of three other people, one of whom may have been defendant, had "snatched" J.S.'s iPod. When J.S. had words with Larry about his iPod, one of the people said, "if you fight him, you have to fight me."
During the January robbery, Julius referred to the iPod incident and told J.S. to watch his back. J.S. got off the train, hoping to find a security guard, but saw the guard leave. After a couple of minutes, Julius mentioned his brother, called J.S. a snitch, pushed a handgun into J.S.'s stomach and punched J.S., and defendant took his backpack.
After he made a 911 call, J.S. was taken to view some men who had been detained, but identified only two of them, Julius and defendant. J.S. testified that during the 911 call he was "mixed up" and in mentioning Larry to the dispatcher had been referring to the earlier iPod incident.
A retired police officer testified that on January 16, 2010, shortly after a dispatch about the robbery, he saw a man in a red jacket matching one of the robber's descriptions speaking to two men, and all three men stared at him, "giving me a dog look[.]" After he pulled around to watch them, two were "almost running" to a Chevron station, then to a Wendy's restaurant, and the one with the red jacket walked "real fast" away. The officer detained this man (Tyrone Smith), and the other two, defendant and Julius, were found hiding in the Wendy's bathroom.
J.S. identified Julius as the one with the gun, and identified defendant as the one who took his backpack. J.S. did not identify Tyrone Smith. When Smith was released, he walked by the patrol cars containing defendant and Julius, "and looked at them and threw some kind of hand gesture, like, his hands, and he crossed his hands, his fingers out."
Detective Brian Bell testified he knew defendant, who was friends with Julius, and defendant had said Tyrone Smith was defendant's brother. On October 29, 2009, Bell saw defendant's tattoos, including "Jack" on one forearm and "Boy" on the other, and the numbers "10" and "2" on the backs of his hands, which Bell interpreted to refer to the tenth and second letters of the alphabet, namely "J" and "B," referring to "Jack Boyz." Commonly, to "Jack" someone means to rob them. When Bell asked defendant how he had chosen the name "Jack Boyz," defendant said, "'That's what we do.'" When Bell confronted defendant with the definition of "jack" (rob), defendant told him "that's not what it meant, that it was his rap group." Bell testified there were five or six other members of the Jack Boyz, including Larry.
The parties stipulated that certain photographs admitted into evidence depicted Julius's hands and ...