(Super. Ct. No. 09F07996)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Marcus Barrie of two counts of home invasion robbery (Pen. Code, §§ 211, 213, subd. (a)(1)(A); counts 2 and 3), and one count of false imprisonment by violence or menace (Pen. Code, § 237, subd. (a)), as a lesser included offense of count 1, kidnapping for robbery, all with enhancements for a principal being armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The trial court sentenced him to nine years and four months in prison.
On appeal, defendant contends the trial court prejudicially erred in admitting gang evidence at trial. As we will explain, although the trial court's admission of the challenged gang evidence was error, it was harmless. We shall affirm.
About noon on Saturday October 24, 2009, 74-year-old Larry Taylor was vacuuming his car's interior in the driveway of his South Land Park house. When tapped on the shoulder, he turned to see a gun in his face, either a .32 or a .38, and three individuals. One asked for his wallet. Taylor said he did not have it, patting himself down to prove it, and took out his cell phone. One of the robbers broke the phone.
They forced Taylor into the garage and told him to get on his knees. When Taylor said he was unable to kneel due to knee surgery, the robbers hurried him into his house. Inside, one robber stayed with him while the others went into the back of the house. They took his wallet, a few hundred dollars in cash, a coin collection, jewelry and a camera.
While the robbers were ransacking Taylor's house, a neighbor's alarm went off. Two robbers ran back to Taylor and told him to shut it off. Taylor said he could not and since several legislators lived in the neighborhood, the police would arrive in a few minutes. The robber with the gun cocked it and asked, "Do you want it now?" Then all three left. Taylor got a shotgun to go after them, but decided to call the police instead.
Randy Balzarano was in the area at the time, taking his son to soccer practice. He heard the burglar alarm and saw three young males walking fast to a car. The car was an older teal Chevy Corsica. The car "peeled out" and Balzarano had to push his son out of the way as the car sped by. He remembered a partial license plate: 2WK. There were four men in the car; the driver was older, 30 to 40, and heavy set.*fn1
Balzarano went down the street toward the sound of the alarm. He came across Taylor, who was on the phone to the police; Taylor handed the phone to Balzarano.
Robert Nakatomi was also in the area to visit his grandmother. He saw three Black males, one in a Cincinnati Reds baseball cap, at a casual run. The men had mischievous grins like they had gotten away with something. Nakatomi made a
U-turn and saw Taylor, who told him he had been robbed. Nakatomi drove around looking for the robbers, but did not see them again.
The police found Delwayne Jacobs's fingerprint on Taylor's closet door.*fn2 Taylor identified Jacobs as possibly the robber with the gun.*fn3
Two days later on Silvies Way in Elk Grove, Brian Immoos was on his couch watching television with his front door open. Four males came in and one waved a gun in his face. The gunman flipped the couch over looking for weapons, and the others went through the house yelling, "Make him tell you where the guns are." When Immoos said he had no guns, the robbers asked for jewelry and "stuff." The robbers ransacked the house, taking a set of car keys, change, a roll of coins and some work gloves.
The gunman, identified by Immoos as Jacobs, threatened about five times to shoot Immoos. Jacobs had a small caliber gun, like a .22. Before the robbers left, they tied Immoos up with an extension ...