P. v.
McClain





















Filed 2/5/13
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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. DEZMAIGHNE YHARSON MCCLAIN, Defendant and Appellant.

C069630 (Super. Ct. No. 11F01414)

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 href="http://www.mcmillanlaw.com/">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 officers testified that defendant was a
validated Crip gang member.

A
jury convicted defendant of second degree robbery (Pen. Code, §§ 211,
212.5 -- count one)href="#_ftn1"
name="_ftnref1" title="">[1]
and assault with a deadly weapon or by means of force likely to cause great
bodily injury (§ 245, subd. (a)(1) -- count two). As to each count, the jury found defendant
inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to eight
years in state prison.

DISCUSSION

I

Defendant
contends the trial court erred in admitting evidence of his gang affiliation,
because the evidence was irrelevant and it should have been excluded under Evidence
Code section 352. We disagree.

Evidence
of defendant’s gang affiliation was relevant to the motive, and hence the
identity, of the assailants. Evidence is
relevant if it tends to resolve a material issue in the case (Evid. Code,
§ 210), and defendant’s identity as one of Allen’s assailants was the
primary issue in this case. “[E]vidence
of motive to commit an offense is evidence of the identity of the
offender.” (People v. Daniels (1971) 16 Cal.App.3d 36, 46.) The People’s theory was that defendant and
his cohorts attacked Allen because they were members of the Crips gang, and
they believed Allen was a member of the rival Blood gang. Thus, evidence of defendant’s gang
affiliation was relevant to a material issue in the case.

In
addition, the trial court did not abuse its discretion under Evidence Code
section 352. “Although evidence of a
defendant’s gang membership creates a risk the jury will improperly infer the
defendant has a criminal disposition and is therefore guilty of the offense
charged -- and thus should be carefully scrutinized by trial courts -- such
evidence is admissible when relevant to prove identity or motive, if its
probative value is not substantially outweighed by its prejudicial
effect.” (People v. Carter (2003) 30 Cal.4th 1166, 1194.) “ ‘The admission of gang evidence over
an Evidence Code section 352 objection will not be disturbed on appeal unless
the trial court’s decision exceeds the bounds of reason. . . .’ ” (People
v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)

As
we have explained, the evidence of defendant’s gang affiliation was highly
probative regarding motive. And the
possibility of undue prejudice was reduced because the trial court instructed
the jury pursuant to CALCRIM No. 1403:
“You may consider evidence of gang activity only for the limited purpose
of deciding whether the defendant had a motive to commit the crimes
charged. [¶] You may also consider this evidence when you
evaluate the credibility or believability of a witness and when you consider the
facts and information relied on by the expert witness in reaching his
opinion. [¶] You may not consider this evidence for any
other purpose. You may not conclude that
from this evidence that the defendant is a person of bad character or that he
has a disposition to commit crime.”

On
this record, we conclude the trial court did not abuse its discretion in
admitting the challenged evidence.

II

Defendant
also contends the evidence is insufficient to support the great bodily injury
enhancements. Again we disagree.

“ ‘The
standard of appellate review for determining the sufficiency of the evidence is
settled. “ ‘On appeal we review the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence . . . .’ ” ’ ” (People
v. Howard (2010) 51 Cal.4th 15, 33.)
“Under the substantial evidence rule, we must presume in support of the
judgment the existence of every fact that the trier of fact could reasonably
have deduced from the evidence.
[Citation.] Thus, if the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant reversal of the judgment.” (People
v. Medina (2009) 46 Cal.4th 913, 924, fn. 2.)

The
trial court instructed the jury pursuant to CALCRIM No. 3160, which defines
great bodily injury as “significant or substantial physical injury” that is
“greater than minor or moderate harm.”
Defendant acknowledges the evidence that the attack caused Allen to
bleed from his head and slip in and out of consciousness. But defendant argues such evidence was
insufficient to sustain the great bodily injury finding because there was no
additional testimony as to any treatment Allen received at the hospital, how
long he was in the hospital, any diagnosis or medications he received or how
long his injuries took to heal.

The
argument is not persuasive. Loss of
consciousness constitutes serious bodily injury (§ 243, subds. (d),
(f)(4)), and serious bodily injury is “ ‘ “essentially
equivalent” ’ ” to great bodily injury as used in section
12022.7. (People v. Wade (2012) 204 Cal.App.4th 1142, 1149-1150, citing >People v. Burroughs (1984) 35 Cal.3d,
824, 831, overruled on another ground in People
v. Blakeley (2000) 23 Cal.4th 82, 89.)
In addition, there is evidence that Allen was unable to identify where
he was, who he was, or what day it was.
From such evidence a reasonable trier of fact could find that defendant
inflicted great bodily injury.

DISPOSITION

The
judgment is affirmed.



MAURO , J.





We concur:





RAYE ,
P. J.





MURRAY ,
J.