P. v. Banks
Filed 7/17/14
P. v. Banks CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LARRY BAILEY-BANKS,
Defendant and
Appellant.
F065998/F065678
(Kern
Super. Ct. Nos. BF134268A & BF134268B)
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAYSHAUN DUPREE BROWN,
Defendant and
Appellant.
APPEAL from
a judgment of the Superior Court of Kern
County. John W. Lua, Judge.
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Larry
Bailey-Banks, Defendant and Appellant.
Gregory L.
Cannon, under appointment by the Court of
Appeal, for Rayshaun Dupree Brown, Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney
General, Stephen G. Herndon and John W. Powell, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Appellants/defendants
Larry Bailey-Banks (Bailey)
name="_ftnref1" title="">[1] and Rayshaun Dupree Brown (Brown) were charged
with multiple felonies and gang enhancements based on the burglary and robbery
of a woman in her apartment. A third
suspect, Andrew Smith, was also implicated.
The People’s theory was that Bailey drove Brown and Smith to the
apartment complex, and Brown and Smith broke into the apartment and robbed the
victim. Bailey and Brown were tried
together, and they were convicted of burglary, robbery and other offenses. Bailey was sentenced to 26 years to life plus
20 years, and Brown was sentenced to 16 years.
Prior to the joint trial, Smith pleaded no contest to burglary and was
sentenced to nine years; he did not testify against Bailey or Banks.
issues
Bailey and
Brown filed separate appeals and briefs, and did not request to join the issues
raised by the other defendant. Their
cases will be administratively consolidated.
Brown
raises only one issue – that the prosecutor committed prejudicial misconduct
during closing rebuttal argument by improperly vouching for the strength of the
People’s case. Bailey joins in this
issue.
Bailey
separately raises several issues which Brown has not joined. Bailey contends the court improperly admitted
an exhibit into evidence which it had previously excluded because it contained
details of Andrew Smith’s plea agreement; the jury was not correctly instructed
on accomplices; the court should have instructed the jury on lesser included
offenses of theft for count I, robbery; the jury failed to clarify whether he
was convicted of first or second degree robbery; he could not be convicted as
both a principal of burglary and robbery, and an accessory after the fact for
the same crimes; he could not be convicted of burglary, robbery, and receiving
stolen property; and one of the prior prison term enhancements must be
stricken.
We reverse Bailey’s conviction in
count VI for receiving stolen property, and strike the prior prison term
enhancements. In all other respects, we
affirm the judgments of convictions against both Bailey and Brown.
On October 21, 2010, Jacqueline
Garcia and her children lived in an apartment on Pacheco Road and Eve Street in
Bakersfield. At some point before noon,
Garcia was resting in bed, and her children were not home. She was awakened by noise coming from her
kitchen window, and the sound of someone falling from a height. Garcia testified two young men suddenly
appeared in her bedroom. One man put his
hand over Garcia’s eyes and mouth, held a gun to her head, and pushed her to
the floor. The gunman told her to get up,
and he took her around the apartment.
The gunman told his accomplice to start looking for stuff. Garcia could not speak English and could not understand
what they were looking for.
Garcia testified the men looked
through her home and made a “disaster of the place.†The gunman seemed to be giving orders to the
second man about what to do. The gunman
continued to hold the gun to Garcia’s head.
The second man found a small safe.
Garcia stored documents and jewelry in it, but it did not contain any
money. The safe was locked, however, and
the culprits did not know what was inside.
After they found the safe, the
gunman again forced Garcia to the floor.
She saw and heard the gunman pull back the slide and chamber a round in
the gun. She also heard a metallic
sound. She believed the gunman was going
to kill her and thought she was dead.
However, the gunman did not fire and both men left the apartment with the
safe.
The 911 call
Garcia was very afraid and tried to
call the police, but she discovered the men had disconnected the telephone in
her apartment. She ran to the manager’s office
and called 911.
At 11:42 a.m., the police received Garcia’s
911 call. Garcia told the
Spanish-speaking dispatcher that two black juvenile males entered her house
through a window, they had a gun, and they forced her to the floor. Garcia said they took a box with all her
personal documents.
The initial investigation
Officers
Juarez and Ashby responded to Garcia’s apartment. Garcia was visibly shaken and very
scared. The screen to the kitchen window
had been removed, and the window was open.
There were drawers and boxes which had been opened and tossed. The safe had been taken. The officers found a live nine-millimeter Luger
bullet on the floor where the gunman had forced Garcia down.
Garcia reported the two suspects
were African-American men. One suspect
was about 19 years old, six feet tall, slim, and wore a black-hooded sweatshirt
and a black mask. The other suspect was
about 18 years old, five feet five inches tall, a thin build, in a dark shirt
and blue jeans, and had shoulder length black hair.
The apartment complex’s security
camera depicted two shadowy figures leaving Garcia’s first floor apartment at
11:41 a.m.
Discovery of the safe
On the same day, Michael Bowen was cleaning
out his apartment on North Half Moon Drive in Bakersfield. He spent the morning throwing out trash in
the garbage can located in the alley behind his apartment. Later in the afternoon, he noticed a second
garbage can had been pulled next to the garbage can he had been using. The second garbage can had not been there earlier
in the day.
Bowen opened the lid and looked
inside the second garbage can. He saw a
small safe that appeared to have been slammed or pried open. There were numerous papers and documents
inside and around the safe. Bowen called
the police.
At 2:45 p.m., Officers Ashby and
Juarez responded to Bowen’s location in the alley. They looked through the safe and found
numerous documents that belonged to Garcia.
The same garbage can that contained the safe also contained utility
bills addressed to defendant Bailey and his girlfriend, Tiffany Jackson.
Garcia’s identification of defendants
Bailey and Jackson lived in the
same apartment complex as Bowen, just a few doors down from Bowen’s residence. Officers Ashby and Juarez contacted Bailey and
Jackson at their apartment. They
detained Bailey and took him to a nearby school.
The officers received information
about a suspicious person in the area of Bailey’s apartment. Officer Ashby remained at the school with
Bailey. Officers Woessner and Juarez
located defendant Rayshaun Dupree Brown walking away from Bailey’s apartment on
North Half Moon Drive. Brown was
detained.
The police asked Garcia to
participate in separate infield showups of the two suspects. An officer drove her to the location where
Brown had been detained, and she remained in the patrol car. The officer read the standard admonishment to
Garcia and asked her to look at Brown, who was standing near another police car
with an officer next to him. Garcia said
Brown was one of the men who entered her apartment.
A few minutes later, an officer
drove Garcia to the school where Bailey had been taken. Garcia remained in the patrol car. Bailey was removed from another patrol car
and stood on the street. He was in
handcuffs, and four officers were standing near him. After receiving appropriate admonishments, Garcia
identified Bailey as one of the men who entered her apartment.
The officers showed Garcia the safe
that had been found in the garbage can.
Garcia identified the safe and the contents as her property. The safe was dusted for fingerprints, but no
usable prints were obtained.
At trial, Garcia identified Bailey
and Brown as the two men who entered her apartment and robbed her. She did not know which man used the gun.
Bailey yells at Brown at the police department
Bailey and Brown were
arrested. Brown had a cell phone which
contained a photograph of him making a hand gesture of the letter “W,†and a
separate photograph that showed the phrase “West Side.â€
Both
defendants were taken to the police department and placed in separate but
adjoining interrogation rooms, which had solid doors and walls. These rooms were located within the larger
squad room, and the officers used them as holding cells. The defendants could not see each other, but
they knew they were in the adjoining rooms.
Officers
Woessner and Ashby removed Brown from the interrogation room and interviewed
him in another area adjacent to the squad room.
They asked Brown if he was involved in the burglary/robbery at the
apartment on Pacheco Road. Brown said he
did not have anything to do with it. The
officers returned Brown to the interrogation room adjacent to where Bailey was
still being held.
Officer Juarez testified he was in
the squad room, and Bailey and Brown were in the adjacent interrogation rooms,
when Juarez heard Bailey yell something at Brown. Bailey’s voice was muffled but loud enough to
be heard by the officers in the squad room.
Officer Woessner testified he was
also in the squad room and heard Bailey talk to Brown in a loud voice through
the wall, “something to the effect of, ‘Tell those officers that I didn’t do
anything,’ †and “ ‘You know my situation. I can’t get another case,’ or something similar
to that.â€
Shortly after the officers heard
Bailey yell at Brown, Brown asked to speak to Officer Woessner again. Brown was removed from his interrogation room
and questioned. Brown said he committed
the robbery with a man known as “Lil’ Rags†or “Baby Rags,†who was later identified
as Andrew Smith.
title="">[4] Brown did not implicate Bailey in any
way. Instead, he said that Smith drove
him to the apartment building and parked on the corner of Eve Street. Smith told Brown that someone lived in an
apartment, and that person sold crystal methamphetamine and had cash. Smith climbed through the apartment’s kitchen
window and opened the front door for Brown.
Smith pulled the gun and pointed it at the woman in the apartment. Brown searched the apartment and found the
safe. Brown said he grabbed the safe,
and they left the apartment. Brown
dropped the safe. Smith helped him carry
it, and they went back to Smith’s car.
They drove to the alley and tried to open the safe. Smith threw the safe against the ground.
The GPS monitoring device on Bailey
At the time
of the crime, Bailey was on parole as a gang member, and was required to wear a
GPS monitoring device. The GPS device
showed the subject’s locations, and when the subject was walking, traveling at
a faster rate in a vehicle, or not moving at all.
The officers retrieved Bailey’s GPS
tracking data after Bailey had been arrested.
Bailey’s GPS tracking data showed that on the day of the
burglary/robbery, he was on Pacheco Road at 11:28 a.m., and moving at 40 miles
per hour, presumably in a vehicle. At
11:29 a.m., he was not moving and was stationary. At 11:32 a.m., he moved to a different
location. At 11:34 a.m., he was
stationary, and near the intersection of Pacheco Road and Pamela Street, which
was near Garcia’s apartment building. He
remained at that location until 11:41 a.m., when he moved north on Eve Street
at 30 miles per hour.
name="_ftnref5" title="">[5] At 11:51 a.m., he was moving at 24 miles per
hour. At 11:52 a.m., he was not moving
and remained stationary at a residence in the area of North Half Moon Drive. At 11:57 a.m., he was walking at one mile per
hour. At 11:59 a.m., he was stationary
on North Half Moon Drive. At 12:03 p.m.,
he was moving on Edgemont Drive at 32 miles per hour.
Detective
Travis Harless, a member of the Bakersfield Police Department’s gang unit,
testified as the prosecution’s gang expert that Bailey, Brown, and Andrew Smith
were members of the West Side Crips. The
West Side Crips had geographical subset gangs which included 6th Street, Black
Family, Q Court, Carnation Track, and Turq Rag.
The West
Side Crips claim the color turquoise, the number six, and the letters “W,†“WS,â€
and “WSC.†The gang’s primary activities
are murders, assaults, stabbings, shootings, carjackings, auto thefts, burglaries,
and drug sales.
Lowell Park
is in the middle of the West Side Crips’ territory, and members of rival gangs
are not allowed to enter the park. The gang
regularly uses the park for meetings and gang-related events, including the
annual “Hood Day†on June 6. Detective
Eric Lantz explained that on Hood Day, large numbers of the West Side Crips “don
their turquoise colors and black T-shirts, things like that, and they will
flood the Lowell Park and the surrounding areas†in the heart of West Side
territory. The event is held on June 6
since the West Side Crips identify with “6/6,†referring to the 6th Street
subset gang, and the park is located on 6th Street.
The
prosecution presented evidence that Bailey was an active member of the West
Side Crips when the instant offenses were committed. Detective Lantz testified he had numerous
contacts with Bailey, and described him as a “significant†person in the West
Side Crips. In July and October 2006,
Lantz had contacts with Bailey while he was in the presence of known members of
the West Side Crips, including Clarence Wandick. Bailey had numerous tattoos that signified
the West Side Crips. He said his moniker
was “Skeeter,†and he admitted membership in the gang.
Detective Lantz and other officers conducted
surveillance during the Hood Day events held by the West Side Crips at Lowell
Park in 2009 and 2010. There were over 100
people at the park, including known members of the West Side Crips. Bailey was present and associated with other
gang members.
Bailey had been booked into county
jail on 13 separate occasions. He claimed
to belong to or associate with the West Side Crips and needed to be kept away
from the rival Bloods and East Side Crips.
Detective Harless testified about a
predicate offense which involved Bailey.
On October 22, 2006, officers responded to a house within the territory
of the West Side Crips on the dispatch about a man with a rifle. Bailey was present and detained, and the
police recovered a loaded .22-caliber rifle.
Bailey admitted he was a member of the West Side Crips and said his gang
moniker was “Skeeter Bob.†He was
convicted of being a felon in possession of a firearm and participating in a
criminal street gang (case No. BF116639A).
Officer Harless believed he was an active gang member at the time, based
on his review of the police report and conversation with the lead investigator.
In January 2010, Detective Harless
arrested Bailey for possession of cocaine base; he was wearing a turquoise
shirt and shoes.
incident
Detective
Harless testified Brown was an active member of the West Side Crips. Brown never personally claimed to have a gang
moniker. Based on contacts with law
enforcement, however, Harless believed Brown’s moniker was “Lil Skeet†or “Lil
Skee.†The moniker likely denoted that a
senior gang member or “big homie†named “Skeet†or “Skee†may have taken Brown
under his wing and allowed him to use the same moniker as a “little homie.â€
Detective Harless testified Bailey
was known as “Skeeter,†“Skeet,†and “Skee.â€
Harless conceded there were other gang members who used the moniker “Skeeter.â€
Harless testified that Brown was
arrested on July 17, 2009, after admitting he brandished a handgun at a man who
was talking to his girlfriend at the mall.
The handgun had been stolen that morning during a residential
burglary. Brown claimed he had traded a
bicycle to get the gun, and he needed it to protect himself from rival
gangs. Brown was wearing a turquoise
belt and said he was affiliated with the West Side Crips. Brown was with two other admitted members of
the West Side Crips. Based on this
incident, Brown was convicted of possession of a firearm by a gang member and
participation in a criminal street gang.
On October
11, 2010, an officer contacted Brown in territory claimed by the East Side
Crips. The officer asked Brown if he was
a member of the East Side. Brown said
no, that he was from 6th Street. The
officer asked Brown if he was a West Side Crip.
Brown said, “ ‘Yeah. I am from
6th Street.’ â€
Detective Harless testified Andrew Smith was also a member of the West
Side Crips and known as “Baby Rags.â€
Detective
Harless testified about two predicate offenses which involved members of the
Westside Crips engaged in the sale of cocaine, and one member being shot while
he was selling drugs.
The
prosecutor asked Officer Harless to assume that two active members of the West
Side Crips committed an armed robbery at a residence, took personal property
from the victim, received a ride from a fellow active gang member to a place
where the stolen property would be kept, and to assume the driver was possibly
a “big homie.â€
Harless testified the suspects would
have committed the offenses in association with members of the West Side Crips
since they cooperated and worked together to commit the crimes, they left the
scene together, and they took the stolen property to another location. The offenses were also committed at the direction
of the gang since the “big homie†would have been in charge, and the younger
gang members would have acted at his direction.
The crimes also would have benefitted the gang since the money would
have been used to buy narcotics and weapons.
Bailey’s trial testimony
Bailey
testified at trial that he socialized with the West Side Crips when he was 14
years old. He became an associate when
he was 16 years old and a member when he was 17 years old. He was affiliated with the 6th Street subset
of the West Side Crips. Bailey’s gang
moniker was “Skeeter†or “Skeeter Bob.†There were other “Skeeters†in the gang. He was never called “Skee.â€
Bailey testified that Brown was his
cousin, and he was not a member of the West Side Crips or any other gang.
Bailey testified members of the
West Side Crips sold drugs, and committed robberies, burglaries, and
shootings. Bailey’s primary source of
income was dealing rock cocaine, but he sold drugs to support his family and
not to benefit the gang. He denied that
he had “juice†or seniority within the gang.
Bailey was convicted of possession
of rock cocaine for sale and served a seven-year prison term. He was released in July 2004. Within a few days, he violated parole by
associating with gang members, and he was returned to prison. He was again released on parole but arrested
and charged with possession of a rifle and rock cocaine. Bailey testified the incident happened while
he was helping a friend move, and the contraband did not belong to him. In 2006, Bailey pleaded guilty to the weapon
charge and admitted the gang enhancement.
He obtained his gang-related tattoos while he was in prison so he could
fit in.
Bailey was released from prison in
2008. He moved out of the West Side Crips
territory and lived with his sister. He
later moved into an apartment with his fiancée, Tiffany Jackson, on North Half
Moon Drive.
Bailey testified that he had lost
interest in the gang. He stopped hanging
out in their territory, covered his gang tattoos, and took classes to become an
oil field worker. He also enrolled in
Bakersfield College. Bailey claimed that
a member could drop out of an African-American gang for no reason without
facing retaliation. He covered a gang
tattoo on his cheek by having a tattoo artist perform a procedure so the tattoo
became part of his skin tone. He was in
the process of that procedure when he was arrested in this case.
Bailey
disputed the officers’ testimony about Hood Day, and testified the event was a
neighborhood picnic and not a gang activity.
He admitted gang members attended the picnic at Lowell Park, which was
within the West Side’s territory. He
denied that he was at the event in 2010 because he would have violated parole
since gang members would have been there.
Bailey claimed he was at an amusement park in Southern California on
that day.
Bailey
testified that on the morning of the burglary/robbery, he was at his apartment on
North Half Moon Drive with Tiffany Jackson and their children. Brown, his cousin, was also there. Bailey was not afraid to hang out with Brown
since he was not a gang member.
Bailey drove Brown to the residence
where Brown’s family lived. Brown needed
to pick up some clothes. Brown’s father
lived on Pacheco Road near Pamela Street.
Bailey and Brown were there for five or six minutes.
Bailey testified that when they
were at the Brown family’s house, he met Andrew Smith for the first time. Smith asked for a ride to get some
marijuana. Bailey agreed. Bailey followed Smith’s directions and drove Smith
and Brown to Eve Street, near Pacheco Road.
Brown and Smith got out of the car and Bailey stayed with the
vehicle. Bailey testified he had no idea
what Smith and Brown were going to do at that location. They were there for six or seven minutes. When Brown and Smith returned to the car,
Bailey could smell marijuana on them.
Bailey drove Brown and Smith back
to his apartment and parked in the alley, where the garbage cans were. Bailey stayed at his apartment for 10 minutes
and then left around 11:40 a.m. to run more errands. Brown and Smith stayed at his apartment.
Bailey testified he returned to his
apartment around 2:00 p.m. Tiffany Jackson
and Brown were there. Smith was
gone. After he returned, Jackson told
him the police were in the alley. Brown
left the apartment. Bailey admitted that
he talked to Tiffany about what to say to the police, and they agreed to give
the same false story about their activities that day.
Bailey testified the police arrived
a short time later and conducted a parole search. The police asked Bailey where he had been
that day, and whether he was a member of the West Side Crips. Bailey told them he wasn’t in the gang
anymore. Bailey gave a false story about
his activities that day because he did not want to get in trouble. Bailey falsely said he and Tiffany had been
near an apartment house on Eve Street because he was looking for car parts.
arrest
Bailey testified the police drove
him to the school for a lineup, and the victim got out of the patrol car and
looked at him. Bailey asked the police
if they would take him back home. An
officer said the victim had positively identified him as a robbery suspect.
Bailey testified he was taken to
the police department, and he saw Brown being escorted into the adjacent
holding area. Bailey denied that he
tried to talk or yell at Brown while they were in the adjacent holding
rooms. He saw the officers remove Brown
from his room. At that time, Bailey
tried to talk to the officers, and he yelled that he was on the GPS monitor and
to check the tracking records because he didn’t commit the crime.
Tiffany Jackson’s
testimony
Tiffany
Jackson testified Bailey and Brown left their apartment to pick up Brown’s
clothes at his father’s house. They returned
with Smith; she had never met him before.
Bailey left again to run errands.
Smith left separately, and Brown stayed at the apartment.
After Bailey returned from his
errands, Jackson saw a police officer in the alley with her neighbor. She went outside and asked what was going
on. They said that they found someone’s
safe and important papers in the garbage can.
Jackson went back to the apartment and told Bailey and Brown.
Jackson testified that Brown “got
hysterical. And he said that, f**k man. I put that – I put it in there. It wasn’t nothing in there so I threw it
away.†Brown also said “that bitch, she
burned me on my weed. I gave her money
for chronic and she gave me stress. I
wanted my money back and she didn’t give me my money back, so I took her shit.â€
Jackson testified that Bailey
immediately became upset and hysterical.
Brown left the apartment. Bailey
and Jackson had a conversation, and the police arrived.
Jackson testified the police asked
her about an incident at an apartment house on Pacheco Road, just east of Eve
Street. Jackson falsely claimed she went
there with Bailey to look for car parts.
She lied because they knew the police would not believe anything Bailey
said.
Jackson testified that a few days
after Bailey was arrested, she went to the apartment complex where the
robbery/burglary occurred. She asked the
apartment manager if there were any empty units to rent, and whether there had
recently been a robbery there. On
October 26, 2010, Jackson returned to the apartment complex with several
people: Brown’s father; a woman who
claimed to have purchased methamphetamine from Garcia; the robbery victim; and
someone who spoke Spanish. She wanted to
clear Bailey’s name and did not threaten Garcia. Jackson testified Garcia agreed to speak with
them, and she was not afraid of them. Jackson
showed Bailey’s photograph to Garcia, and Garcia said she “didn’t know. He was just black.†Jackson testified she knew “for a fact†that
Garcia sold marijuana and methamphetamine.
BROWN’S DEFENSE
Officer
Woessner was recalled as a defense witness for Brown. Woessner testified he interviewed Bailey at
his apartment. Bailey said he had been
at his aunt’s apartment on Pacheco Road.
Bailey said he walked up to Eve Street because he was looking for car
parts. Woessner also testified about
hearing Bailey shout at Brown while they were being held in the adjacent
interrogation rooms at the police department.
Karrie Orsburn, the manager of
Garcia’s apartment complex, testified Tiffany Jackson arrived at her office a
few days after the robbery/burglary. She
asked if there were empty units and whether there were security cameras in the
area.
Defense expert
Stanley Mosley, a private
investigator hired by Brown, testified as a defense expert on criminal street
gangs. Based on a hypothetical, defense
counsel asked Mosley to assume that a middle-aged Hispanic woman lived in an
apartment with a special needs child and only kept some documents in a safe,
and whether she would be a target for a street gang robbery. Mosley testified that person would not be an
appropriate target. Gang members would
not rob an apartment at random without knowing what was inside, and they would
not rob a place where there were security cameras.
PROCEDURAL
HISTORY
The charges
against Bailey and Brown
Bailey and
Brown were jointly charged with committing the following offenses against
Garcia: count I, first degree robbery
(Pen. Code, § 212.5, subd. (a));
subd. (a)(2)); count III, first degree burglary (§ 460, subd. (a)); and
count IV, unlawful participation in a criminal street gang (§ 182.22,
subd. (a)).
As to Bailey and Brown, it was
alleged as to count I that they were principals in the offense, and at least
one principal personally used a firearm while committing the offense
(§ 12022.53, subds. (b), (e)(1)); gang enhancements as to counts I, II and
III (§ 186.22, subd. (b)(1)); and they personally used firearms as to
counts II and III (§ 12022.5, subd. (a)).
As to Brown, it was alleged he was 16 years of age or older when he
committed counts I, II, III, and IV (Welf. & Inst. Code, § 707, subds.
(b) & (d)(1)).
Bailey was separately charged with
count V, unlawful possession of a firearm by a felon (§ 12021, subd.
(a)(1)); count VI, receiving stolen property which belonged to Garcia
(§ 496, subd. (a)); and count VII, being an accessory after the fact to a
felony by harboring, concealing or aiding Brown and/or Andrew Smith with the
knowledge they had committed offenses against Garcia (§ 32), with gang
enhancements alleged as to these counts.
Also as to
Bailey, it was alleged in counts II and V, that he was a principal in the
offense and at least one principal personally used a firearm during the
commission of the offense (§ 12022.53, subds. (b), (e)(1)); and he had two
serious felony convictions, two prior strike convictions, and served two prior
prison terms.
Smith’s charges and plea agreement
On October
23, 2010, the felony complaint was filed against Bailey and Brown. On November 23, 2010, a separate felony
complaint was filed against Andrew Smith for the burglary and robbery of
Garcia. Smith was not in custody and a
felony arrest warrant was issued. On
January 29, 2011, Smith was arrested.
On February 28, 2011, a separate information
was filed charging Smith with first degree robbery, assault with a firearm, and
first degree burglary, with gang enhancements, and separately, with unlawful
participation in a criminal street gang.
The court denied the People’s motion to consolidate Bailey and Brown’s joint
case with Smith’s case.
On June 2,
2011, Smith accepted a plea agreement in his separate case, and pleaded no
contest to first degree burglary and admitted a gang enhancement, and was
sentenced to nine years. The court
granted the People’s motion to dismiss the other charges and enhancements
against Smith.
The verdicts against Bailey and Brown
On May 7,
2012, the joint jury trial began for Bailey and Brown. On May 31, 2012, the court granted defendants’
motion to dismiss the section 12022.5, subdivision (a) personal use allegations
as to counts II and III.
name="_ftnref8" title="">[8]
Smith did not testify at the joint
trial for or against Bailey and Brown. During
closing argument, the prosecutor explained the People’s theory: Bailey was the “big homie†with authority
over younger gang members. Bailey’s GPS
tracking data showed that he drove Brown and Smith to the apartment complex on
Pacheco Road and Bailey waited in the car. Brown and Smith broke into Garcia’s apartment
and robbed her; Brown and Smith took the safe back to Bailey’s car. The GPS data showed Bailey drove back to his
apartment on North Half Moon Drive, and they broke open the safe in the alley and
threw it in the trash. The prosecutor
conceded that Garcia’s identification of Bailey as one of the burglars was
incorrect.
On June 7,
2012, the jury found Brown and Bailey guilty of count I, robbery, with the
section 12022.53, subdivisions (b) and (e)(1) firearm allegations true, that
defendants were principals and at least one principal personally used a firearm;
count III, burglary; and count IV, participation in a criminal street gang; and
found the gang allegations true as to counts I and III. Bailey and Brown were found not guilty of
count II, assault with a firearm on Garcia.
As to Bailey’s
separate charges, he was found guilty of count VI, receiving Garcia’s stolen
property; and count VII, accessory after the fact; and the attached gang
allegations were found true. Bailey was
found not guilty of count V, possession of a firearm by a felon. The court found the prior conviction allegations
true.
Sentencing
As to
Bailey, the court denied his motion to dismiss the prior strike
convictions. The court sentenced him to 26
years to life for count I, first degree robbery, plus 10 years for the section
12022.53 firearm allegation, and 10 years for the two prior serious felony
enhancements, for an aggregate term of 26 years to life plus 20 years. The court imposed and stayed another 10-year
term for the gang enhancement as to count I.
The court imposed and stayed the
remaining terms for Bailey as follows:
count III, burglary, 26 years to life plus 10 years for the gang
enhancement, and 10 years for the two prior serious felony enhancements; count
IV, the substantive gang offense, 25 years to life plus 10 years for the prior
serious felony enhancements; count VI, receiving stolen property, 25 years to
life plus four years for the gang enhancement; and count VII, accessory after
the fact, 25 years to life plus four years for the gang enhancement.
As to Brown, the court sentenced
him to the upper term of six years for count I, first degree robbery, plus 10
years for the section 12022.53 firearm allegation, for an aggregate term of 16
years. The court imposed and stayed
another 10-year term for the gang enhancement as to count I.
The court imposed and stayed the
remaining terms for Brown as follows: Count
III, burglary, the upper term of six years plus 10 years for the gang
enhancement; count IV, the substantive gang offense, the upper term of three
years.
DISCUSSION
Admission
of documentary exhibit about Smith’s prior conviction
As noted
above, the prosecution’s theory was that Bailey drove Brown and Andrew Smith to
Garcia’s apartment building. Bailey
waited in his car, and Brown and Smith broke into her apartment and robbed her. As we have also explained, Smith was
separately charged and entered into a plea agreement for the burglary of Garcia’s
apartment. The court excluded any
reference to Smith’s plea agreement in defendants’ joint trial.
Bailey
contends the court committed prejudicial error when, after all the parties
rested, it granted the prosecution’s motion to admit all marked exhibits,
including exhibit No. 3. This exhibit
consisted of docket entries for the separate criminal proceedings against Smith,
which stated that he pleaded no contest to burglary. Bailey contends that even though the court had
granted his pretrial motion to exclude all references to Smith’s plea
agreement, including exhibit No. 3, the prosecutor improperly moved this
exhibit into evidence in violation of Bailey’s confrontation and due process
rights.
As we will
explain, the entirety of the record suggests this exhibit likely was inadvertently
admitted into evidence, and that the jury’s verdicts were not influenced by
these documents.
A.
Exhibit
No. 3
During the pretrial motions in
limine, the prosecutor stated he intended to introduce five predicate offenses
in support of the gang allegations. One
of the proposed predicate offenses was Andrew Smith’s plea agreement in case
No. BF134637A, where he pleaded no contest to first degree burglary of
Garcia’s apartment and admitted the gang enhancement.
The documents supporting Andrew
Smith’s conviction were marked as exhibit No. 3, and consisted of 16 pages
of docket entries (summarized in the procedural history, ante). The docket entries
for Smith had a different case number than the case against the
defendants. Exhibit No. 3 did not
include the actual complaint, information, abstract of judgment, or any
transcripts of Smith’s preliminary hearing, plea agreement or sentencing. There were no references to Bailey or Brown
in the documents. However, one of the
docket entries stated that a stay-away order had been imposed between Smith and
Garcia.
Bailey’s
attorney objected to the prosecutor’s proposed use of Smith’s burglary conviction
as a predicate offense. He argued it should
be excluded as prejudicial because it was based on the same facts as the
charged offenses against Bailey and Brown.
The prosecutor replied it was a “common practice†to use the criminal
acts of other gang members to establish a defendant’s knowledge of his gang’s
criminal activities.
The court
held Smith’s burglary conviction was prejudicial and inadmissible under
Evidence Code section 352, and could not be used as one of the predicate
offenses. The court was concerned the
evidence might violate the defendants’ confrontation rights in their joint jury
trial because the jury could rely on Smith’s burglary conviction as evidence of
defendants’ guilt in this case.
The
prosecutor stated he would use another gang crime as one of the predicate
offenses. However, the prosecutor advised
the court that the gang expert was going to testify to his opinion that Smith
was a member of the West Side Crips, and his opinion was partially based on
Smith’s burglary conviction. Defendants
objected.
The court held the prosecutor could
introduce limited evidence that Smith was a gang member.
“ ‘[T]he Court anticipates evidence or at least
testimony that a person named Andrew Smith was involved in this case and his
affiliation or membership with a gang may become relevant. I have no problem with evidence being
introduced to support that Andrew Smith is a gang member. And that’s fine. [¶] … [¶]
“… To the extent a witness is going to rely on the
facts and circumstances in this case to prove Andrew Smith is a gang member,
outside [of] being extremely sanitized so as not to confuse the facts in this
case with the conviction involving Mr. Smith, that will be allowed, but it has
to be extremely sanitized.â€
The court further ruled:
“The fear the court has is upon proving Mr. Smith is a
gang member generally or that a predicate offense necessary to prove the
pattern of criminal activity specifically would – that it would rest on the
instant facts is – that’s the concern for the Court because
such a way to this jury that the facts have already been established to prove
those reasons when it is this jury’s job to determine the truth of these
allegations and then apply the law to the truth as they find them.
“That’s not going to happen in this case. That, in this court’s view, would be
bootstrapping and would be an end-around way of presenting evidence in a manner
in which would suggest that the evidence has already been proven sufficient,
and, therefore, because of that, this jury need not concern itself with the
facts presented or the evidence in this case because that determination’s
already been made. So that won’t happen.†(Italics added.)
B.
Trial
references to Andrew Smith
During
trial, the prosecutor did not violate the court’s limiting order, and the jury
never heard about Smith’s conviction for burglary of Garcia’s apartment or any
references to the documents contained in exhibit No. 3.
The jury
heard several references to Smith’s possible involvement in the offenses
committed against Garcia, all of which were properly based on admissible
evidence. At the beginning of trial, the
court read the information to the jury, including count VII, which separately
charged Bailey with being accessory to
a felony by harboring, concealing or aiding Brown and/or Andrew Smith with the
knowledge they had committed offenses against Ms. Garcia (§ 32).
In the prosecutor’s opening
statement, he told the jury that it had heard Andrew Smith's name when the
court read the information, but the information was not evidence and they were
not supposed to worry about what happened to Smith and why he was not
there. In his opening statement, Bailey’s
attorney disagreed with this assertion and said the jury needed to be concerned
about Smith’s role in this case.
As set
forth above, the jury heard evidence about Brown’s second statement to the
police, when he said that Smith told him about the money and drugs in the
apartment, they broke into the place, and they took the safe.
The prosecution’s gang expert
testified that Smith was known as “Baby Rags†and he was a member of the West
Side Crips. He did not refer to Smith’s
burglary conviction.
The jury also heard about Smith
during Bailey’s trial testimony, when he explained that he met Smith for the
first time when he drove Brown to his family’s residence; that Smith asked for
a ride to buy marijuana; that Smith and Brown left the car while Bailey waited for
them; and that Bailey did not know what they were going to do. Tiffany Jackson testified that Smith returned
to their apartment with Bailey and Brown, and left before she saw the police in
the alley.
After the parties rested, Brown’s
attorney asked for clarification of the court’s ruling regarding Smith’s
involvement in this case. The court
explained:
“What the court ruled in limine was that the present
offense as it relates to Andrew Smith and Andrew Smith’s involvement and
subsequent conviction cannot be used as a predicate offense in this case .…â€
C.
Admission
of exhibit No. 3
Bailey’s claim of appellate error
is based on what happened during the following discussion about the
exhibits. Prior to closing arguments,
the court asked the prosecutor which exhibits he wanted to move into
evidence. The prosecutor said he wanted
to introduce “everything†except the unredacted transcript and recording of the
911 call, and the DVD of the GPS tracking records.
The court asked the defendants if
they had any comments. Bailey’s attorney
asked to look at the exhibits, asked for clarification about the exhibits which
the prosecutor said he was going to exclude, and did not otherwise object. Brown’s attorney also asked for
clarification, and did not raise any objections.
The court
granted the prosecution’s motion to admit all the marked exhibits. The exhibit list attached to the minute order
indicates that exhibit No. 3 was included in the admitted exhibits. As explained above, exhibit No. 3
consisted of the docket entries regarding Andrew Smith’s conviction for
burglary, which had been marked during pretrial motions.
During the discussion about the
exhibits, there were no comments made by the court, the prosecutor, or the
defense attorneys about the inclusion of exhibit No. 3 in the admitted
exhibits. When the court asked
defendants for their comments on the prosecutor’s motion, neither Bailey nor
Brown objected to the inclusion of exhibit No. 3 in the exhibit list. In their closing arguments, none of the
parties discussed any of the documents in exhibit No. 3 or addressed the disposition
of the charges against Andrew Smith.
D.
Analysis
Based on
this sequence of events, Bailey contends the admission of exhibit No. 3
into evidence was prejudicial and violated his due process and confrontation
rights because it allowed the jury to learn that Smith had been convicted of
the burglary of Garcia’s apartment, contrary to the court’s ruling that such
evidence was inadmissible. Bailey
asserts that since the court excluded exhibit No. 3, the prosecutor
committed prejudicial misconduct by moving all the exhibits into evidence, even
if he did not act in bad faith. Bailey
further argues his defense attorney was prejudicially ineffective for failing
to object to the prosecutor’s motion to introduce all the exhibits. Bailey asserts the error is of constitutional
dimension and not harmless beyond a reasonable doubt pursuant to
(Chapman).
We begin
with the sequence of Bailey’s multiple claims of error. Bailey and Brown objected to the prosecution’s
pretrial motion to use Smith’s burglary conviction as a predicate offense. The court agreed and excluded the
evidence. The prosecutor complied with
the court’s ruling and did not introduce evidence of Smith’s burglary
conviction during the trial.
After the
close of evidence, the prosecutor moved to admit all the marked exhibits, and
specifically excluded the unredacted 911 call and the GPS data. Bailey suggests the prosecutor engaged in
prejudicial misconduct because he failed to exclude exhibit No. 3 from his
motion, even though the court had denied his pretrial motion to admit Smith’s
burglary conviction as a predicate offense.
“ ‘ “A prosecutor’s … intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct ‘so egregious that
it infects the trial with such unfairness as to make the conviction a denial of
due process.’ †’
[Citations.] Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘ “ ‘the
use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.’ †’ [Citation.]†(People
v. Samayoa (1997) 15 Cal.4th 795, 841.)
Bailey asserts
the prosecutor’s failure to exclude exhibit No. 3 from his motion is
indicative of his bad faith and misconduct.
“[A] determination of bad faith
or wrongful intent by the prosecutor is not required for a finding of
839.) Rather, the issue is whether the
defendant’s right to fair trial was impacted by the prosecutor’s conduct. (People v. Epps (1981) 122 Cal.App.3d
691, 706.)
However, “[a]s a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion – and on the same ground – the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]†(People
v. Samayoa, supra, 15 Cal.4th at
p. 841.)
Even if the prosecutor sought to
avoid the court’s ruling by the introduction of the exhibits, and the court did
not realize that exhibit No. 3 was still a marked exhibit, there was still
another opportunity to exclude exhibit No. 3. The court expressly asked both defense
attorneys if they had any objections to the prosecutor’s motion to admit all
the marked exhibits. Both defense
attorneys asked for time to review the exhibits. Exhibit No. 3 was still a marked exhibit and
on the exhibit list, but Bailey and Brown did not object. If Bailey had objected to the prosecutor’s
motion, the court would likely have excluded exhibit No. 3. Bailey’s failure to object to the admission
of exhibit No. 3 waives any claim of error on appeal. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 433–434.)
In the alternative, Bailey asserts
his attorney was prejudicially ineffective for failing to object. “In order to demonstrate ineffective
assistance, a defendant must first show counsel’s
performance was deficient because the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from
counsel’s performance or lack thereof. Prejudice is shown when there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. [Citation.]â€
(People v. Williams (1997) 16 Cal.4th 153, 214–215.)
“Failure to object rarely
constitutes constitutionally ineffective legal representation [citation] ....â€
(People v. Boyette (2002) 29
Cal.4th 381, 424.) “If the record on
appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal. [Citation.]†(People v. Kraft (2000) 23 Cal.4th 978,
1068–1069.)
Bailey asserts his defense attorney
had no tactical reason for failing to object to exhibit No. 3,
particularly given counsel’s vigorous pretrial arguments against the admission
of Smith’s burglary conviction. However,
the record suggests that by the end of the case, his defense attorney might
have decided to change his tactics. Bailey
and his girlfriend had given numerous accounts of his activities to the police on
the day of the burglary/robbery. Later
that day, the investigating officers heard Bailey yell at Brown to “ ‘Tell
those officers that I didn’t do anything,’ †and “ ‘You know my
situation. I can’t get another case,’ or
something similar to that.†Shortly
after that, Brown told the police that he committed the burglary/robbery with
Smith, and did not implicate Bailey.
While the prosecutor conceded Garcia incorrectly identified Bailey as
one of the burglars, Bailey’s defense faced damaging inculpatory evidence from
the GPS tracking data, which placed Bailey at Garcia’s apartment; Bailey’s
prior inconsistent statements about his activities; and the complete absence of
Smith from the trial.
By the end of the trial, Bailey’s
attorney may have decided not to object to exhibit No. 3 so the jury might
learn that Smith really existed, and he had been charged and convicted of
burglary, which bolstered Bailey’s trial testimony that Smith was the culprit,
and Brown’s statement to the police that he broke into the apartment with Smith.
Bailey
further argues the jury’s receipt of exhibit No. 3 violated his due
process rights because of the court’s earlier ruling that admission of Smith’s
burglary conviction would violate defendants’ confrontation rights, in
violation of Bruton v. United States
(1968) 391 U.S. 123 and Crawford v.
Washington (2004) 541 U.S. 36. ‘Confrontation
clause violations are subject to federal harmless-error analysis under Chapman .…’ [Citation.]
We ask whether it is clear beyond a
doubt that a rational jury would have reached the same verdict absent the
error. [Citation.]†(People
v. Loy (2011) 52 Cal.4th 46, 69–70.)
While
Bailey’s attorney might have conceivably had a tactical reason not to object to
exhibit No. 3, the record strongly suggests the admission of this exhibit
was inadvertent by the court and the parties in this case, particularly since
none of the parties addressed Smith’s burglary conviction in their closing
arguments. In any event, the entirety of
the verdicts dispels the possibility that the jury learned of Smith’s burglary
conviction or, more importantly, the jury was influenced by it, and any error
is harmless beyond a reasonable doubt.
The prosecution’s theory was that
Bailey waited in the car, and Brown and Smith broke into Garcia’s apartment and
robbed her. If the jury looked at the
docket entries for exhibit No. 3, they would have seen that Smith had been
charged with burglary, robbery, and assault with a deadly weapon, and he was
convicted of burglary with the gang enhancement. Smith did not plead or admit to any firearm
allegations.
title="">[9] If the jury had been influenced by exhibit
No. 3, it could have concluded that since Smith was not convicted of a weapons
offense, then Brown must have been the suspect who held the gun to the victim’s
head, consistent with Garcia’s account of the robbery.
Instead, the jury found both Bailey
and Brown guilty of robbery with the section 12022.53, subdivisions (b) and
(e)(1) firearm allegations true, that defendants were principals and at least
one principal personally used a firearm.
However, defendants were found not guilty of assault with a deadly
weapon on Garcia, and Bailey was not guilty of being a felon in possession of a
firearm, thus finding that neither Bailey nor Brown were the principals who
were armed with a firearm during the robbery.
These verdicts were consistent with Garcia’s inability to identify which
suspect held the gun to her head, Brown’s statement to the police that Smith
was the gunman during the robbery, and the GPS tracking data which showed that
Bailey was in the car and not one of the gunmen who broke into Garcia’s
apartment. The verdicts thus demonstrate
that the jury found defendants guilty and the firearm allegations true based on
the testimonial evidence and not from the docket entries contained in exhibit
No. 3.
II.
Prosecutorial
misconduct
Bailey and
Brown contend the prosecutor committed prejudicial misconduct during his
rebuttal argument by vouching for the strength of the People’s case against
them when he said:
“Remember, look at all the
evidence. Don’t just look at the stuff
the attorneys tell you to because we are biased. I am the most biased person in the
courtroom. I’ll tell you right now, I believe to the bottom of my feet these guys
did it. That’s why I am here.†(Italics added.)
Defendants objected and the court immediately
admonished the jury to disregard those statements. However, they contend the admonishment was
insufficient to cure the alleged due process violation.
The People
assert the prosecutor’s rebuttal was fair commentary on the defense closing
arguments which attacked the prosecutor’s ethical duties, and any misconduct
was cured by the court’s timely admonishment to the jury.
A.
Legal
principles
We begin with the well-settled law
on prosecutorial misconduct. “A prosecutor’s misconduct violates the
Fourteenth Amendment to the United States Constitution when it ‘infects the
trial with such unfairness as to make the conviction a denial of due process.’
[Citations.] In other words, the
misconduct must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’ [Citation.]
A prosecutor’s misconduct that does not
render a trial fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’ [Citations.]â€
(People v. Cole (2004) 33 Cal.4th
1158, 1202.)
“When the
issue ‘focuses on comments made by the prosecutor before the jury, the question
is whether there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion.’ [Citations.] Moreover, prosecutors ‘have wide latitude to
discuss and draw inferences from the evidence at trial,’ and whether ‘the inferences
the prosecutor draws are reasonable is for the jury to decide.’ [Citation.]†(People
v. Cole, supra, 33 Cal.4th at
pp. 1202–1203.)
In
reviewing claims of misconduct during closing argument, “we must view the
statements in the context of the argument as a whole. [Citation.]†(People
v. Cole, supra, 33 Cal.4th at
p. 1203.) “ ‘A prosecutor is
allowed to make vigorous arguments and may even use such epithets as are
warranted by the evidence, as long as these arguments are not inflammatory and
principally aimed at arousing the passion or prejudice of the jury.’ [Citation.]†(People v. Young (2005) 34 Cal.4th
1149, 1195.)
B.
Closing
arguments
Defendants’
claims of misconduct are based on the prosecutor’s rebuttal argument. The prosecutor later claimed his rebuttal was
fair commentary on the defense closing arguments. We thus begin with the defense closing
arguments before we turn to defendants’ allegations of misconduct.
Bailey’s
defense counsel (Mr. Moffat), focused on the conflict between Garcia’s infield
identification of Bailey as one of the robbers, compared to the prosecution’s trial
theory that Bailey was really the driver, Brown and Smith broke into the
apartment, and they robbed Garcia. In
light of this inconsistency, defense counsel criticized the prosecutor’s “absolute
certainty†about “the evidence … in this case that [Bailey] is guilty .…†Bailey’s attorney argued that Bailey felt he
had no choice but to lie to the police when they initially asked about his
activities that day:
“… Mr. Russell
[the prosecutor] can go back to his office, and he has stature; he has a
reputation; he has a good job; he’s got an excellent salary. He doesn’t have to worry in his life about
whether anybody believes him or doesn’t believe him. [W]hereas Mr. Bailey comes from an entirely
different way of looking at things. What
Mr. Bailey decided back there … when he found out that this strongbox had been
found in his trash can, he didn’t believe that law enforcement would in any way
accept the possibility that he did not know how or what happened over there on
Pacheco and Eve Street.…†(Italics added.)
Bailey’s
attorney argued that “law enforcement†had a “bias†in this case.
“[W]hen officers are testifying in this case, they have
a bias. All right? I got a bias.
Larry Bailey has a bias. [¶] But law
enforcement has a bias as well. All
right? We all have biases. So when – I mean, when gang officers testify
in this case, it is not because they want to necessarily state those things
that might be positive for Larry Bailey.
Okay? They are here to do their job, and their job is to convict Larry Bailey. I am not saying they would lie or
whatever. I am just saying that they have their preference, their bias, just like
we all do.†(Italics added.)
Bailey’s
attorney argued that the testimony from law enforcement had been “shaped by the
fact that they believe [Bailey] is a gangster.â€
“Law enforcement made that
decision a long time ago. Okay? And just as I am saying, we are not here to
pity Larry Bailey. At the same time, it
is still important that we understand that law
enforcement has a bias, just as we all do, and that bias in this case is,
regardless of what the facts are, Larry Bailey is a gangster.†(Italics added.)
Bailey’s attorney also asserted the
prosecutor was uncertain of the strength of his case because he was relying on
two alternative theories based on the nature of the charged offenses: That Bailey was the getaway driver and guilty
as a principal of the robbery, assault, and burglary as charged in counts I,
II, and III; or that he was simply an accessory after the fact who was not the
getaway driver but helped them get rid of the safe, as charged in count VII.
“[T]here’s got to
be some question in the People’s mind with regard to the facts of this case
if they choose to present a theory whereby [Bailey] is either the robber or he
is not the robber. I mean, it does not
make sense.
| Description | Appellants/defendants Larry Bailey-Banks (Bailey)[1] and Rayshaun Dupree Brown (Brown) were charged with multiple felonies and gang enhancements based on the burglary and robbery of a woman in her apartment. A third suspect, Andrew Smith, was also implicated. The People’s theory was that Bailey drove Brown and Smith to the apartment complex, and Brown and Smith broke into the apartment and robbed the victim. Bailey and Brown were tried together, and they were convicted of burglary, robbery and other offenses. Bailey was sentenced to 26 years to life plus 20 years, and Brown was sentenced to 16 years. Prior to the joint trial, Smith pleaded no contest to burglary and was sentenced to nine years; he did not testify against Bailey or Banks. |
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