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The People v. Dezmaighne Yharson Mcclain

February 5, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEZMAIGHNE YHARSON MCCLAIN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F01414)

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

P. v. McClain

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Dezmaighne Yharson McClain of second degree robbery and assault with a deadly weapon or by means of force likely to cause great bodily injury. The jury also found, as to each count, that defendant inflicted great bodily injury. The trial court sentenced him to eight years in state prison.

Defendant now contends (1) the trial court prejudicially erred in admitting evidence of defendant's gang affiliation, and (2) the evidence is insufficient to support the great bodily injury enhancements. Disagreeing with defendant's contentions, we will affirm the judgment.

BACKGROUND

Andre Allen was walking from a parking lot when he saw three males, including defendant, in a white Lexus. Allen was wearing a red shirt and red and white Nike Jordan shoes, but he was not a gang member. Defendant and another male got out of the car, called Allen a "slob" several times and pushed Allen to the ground. "Slob" is a derogatory term used by Crip street gangs in referring to Blood gang members.

Allen got up and started running, but the assailants caught up to him. Defendant and his companions hit and kicked Allen until he lost consciousness.

Rachel Chavez was driving by and witnessed the assault on Allen. Chavez saw the attackers repeatedly hit and kick Allen as he lay on the ground. She also saw them go through Allen's pockets and steal his shoes.

Deputy Charles Esty was driving in the area when he saw people in "frantic movement" around a white Lexus. As Deputy Esty approached, a member of the group looked in his direction and got into the white Lexus while two others ran. Chavez flagged down Deputy Esty, pointed in the direction that the two individuals ran, and said, "Those are the guys that beat him."

Deputy Esty saw that Allen was bleeding from the head and was slipping in and out of consciousness. Allen could not identify himself, his location, or the date and time. Allen was taken by ambulance to a hospital.

At trial, Chavez was less certain that defendant was one of the assailants, saying it "could have been" him, and that her identification of defendant at the scene had been based on the clothing he was wearing. Deputy Esty and four other ...


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