Filed 5/3/16 P. v. Gathright CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B258727
                                                                        (Super. Ct. No. BA410472-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

EMMANUEL GATHRIGHT,

     Defendant and Appellant.


                   Emmanuel Gathright appeals a judgment following conviction of three
counts of second degree robbery, with findings that he committed the crimes to benefit a
criminal street gang, a principal personally used a firearm during commission of the
crimes, and he suffered a prior serious felony and strike conviction. (Pen. Code, §§ 211,
186.22, subd. (b)(1)(C), 12022.53, subd. (b), 667, subd. (a), 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).)1 We modify the judgment to award one additional day of actual custody
credit, but otherwise affirm.
                               FACTUAL AND PROCEDURAL HISTORY
                   During the afternoon of February 1, 2012, two Black men entered Zeus
Roby Jewelry store in Los Angeles. The men, later identified as Gathright and Len
Breazean, wore dark-colored hooded sweatshirts. Breazean called store owner Hugo
Perez aside, pointed a handgun at Perez's head, and demanded that he open the store safe.

1
    All further statutory references are to the Penal Code unless stated otherwise.
After Perez opened the safe, Breazean removed cash, gold, and jewelry and placed the
items inside his sweatshirt pocket.
               While Breazean emptied the safe, Gathright stood in front of the counter
where employees Jessica Banda and Bryon Escobar worked. Gathright informed
Breazean that Escobar had a taser and Gathright then directed Banda and Escobar "not to
move." Banda and Escobar believed that Gathright held a firearm because he "was
pointing" at them through his sweatshirt. Gathright also looked outside the store during
the robbery.
               After taking items from the safe, Breazean took gold pieces from Banda's
desk and then took Perez's and Escobar's wallets. Gathright and Breazean ran from the
store to a waiting black-colored Ford Mustang automobile. As he fled, Breazean dropped
the wallets. Perez and Escobar gave chase; Perez fired the taser at Breazean, who
responded by firing the handgun at Perez. Perez was not injured, but Breazean was
struck by the taser dart. He was "shaking," and had difficulty walking due to the dart.
The getaway vehicle left quickly with Breazean and Gathright inside.
               Perez and Escobar returned to the jewelry store and telephoned for police
assistance. A surveillance camera recorded the robbery but the video-recording did not
clearly reflect Gathright's facial features, only his physical stature and build. At trial, the
prosecutor played the video-recording of the robbery.
               In photographic lineups, Perez, Banda, and Escobar later identified
Breazean as the robber holding the firearm, but they were unable to identify Gathright.
The three victims were also unable to identify Gathright at trial. Escobar explained that
his attention was focused on the robber holding the firearm.
               In March 2013, Los Angeles Police Detective Adrian Lopez questioned
Gathright in a recorded interview. Gathright admitted membership in the "135 Piru"
criminal street gang, but denied involvement in the jewelry store robbery. During
questioning, Lopez informed Gathright that he had viewed the jewelry store surveillance
recording. Lopez also employed a ruse, stating that Breazean had implicated Gathright in


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the robbery and that police investigation revealed Gathright's DNA in the Ford Mustang
automobile.
              Gathright then admitted visiting the jewelry store with Breazean "to sell
some jewelry" because Breazean knew Perez. The visit "went all bad," however, when
Breazean displayed his firearm. Gathright denied taking any jewelry and denied knowing
beforehand that Breazean was armed.
              Los Angeles County Sheriff's Detective Marc Boisvert testified as an expert
regarding criminal street gangs. He stated that Gathright was a self-admitted member of
the 135 Piru gang and that Breazean was associated with "Blood" and "Piru" gangs.
Boisvert testified that the primary activities of the Piru gang were drug sales, robberies,
assaults, burglaries, and murders. Based upon a hypothetical similar to the evidence
presented at trial, Boisvert opined that Gathright and Breazean committed the robbery to
benefit the 135 Piru criminal street gang.
              The jury convicted Gathright of three counts of second degree robbery and
found that he committed the crimes to benefit a criminal street gang, and that a principal
personally used a firearm during commission of the crimes. (§§ 211, 186.22, subd.
(b)(1)(C), 12022.53, subd. (b).) In a separate proceeding, Gathright admitted that he
suffered a prior serious felony and strike conviction. (§§ 667, subd. (a), 667, subds. (b)-
(i), 1170.12, subds. (a)-(d).)
              The trial court sentenced Gathright to 25 years imprisonment, consisting of
an upper five-year term (then doubled), 10 years for the criminal street gang
enhancement, and five years for the prior serious felony conviction. The court imposed
and stayed a 10-year term for the firearm use enhancement and imposed 20-year terms to
be served concurrently for the remaining two robbery counts. The court also imposed a
$300 restitution fine, a $300 parole revocation restitution fine (stayed), a $120 court
security assessment, and a $90 criminal conviction assessment. (§§ 1202.4, subd. (b),
1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) It awarded Gathright 508 days of
presentence custody credit, consisting of 442 actual days of credit and 66 days of conduct
credit.

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                 Gathright appeals and contends that 1) the trial court erred by permitting
Officer Lopez to testify that he suspected that Gathright was the second robber, and 2) he
is entitled to one additional day of presentence custody credit.
                                         DISCUSSION
                                                I.
                 Gathright argues that the trial court erred by overruling his hearsay
objection to Officer Lopez's testimony that, during his investigation, he suspected that
Gathright was the second robber of the jewelry store. Gathright claims the evidence is
either hearsay or irrelevant and was prejudicial pursuant to any standard of review.
(People v. Reyes (1976) 62 Cal.App.3d 53, 67-68 [witness's statements to police officer
inadmissible as irrelevant and hearsay].) He asserts that the evidence against him is
slight and rests upon a false confession induced by ruses and false police claims of
evidence. Gathright contends that the error denies him a fair trial and due process of law
pursuant to the United States and California Constitutions.
                 Over a defense hearsay objection, Lopez confirmed that "during the course
of [his] investigation," he suspected Gathright was the second robber. Later, Lopez
explained his persistence in investigating although the store employees could not identify
the second robber: "Based on the information I received, the investigation that I did over
the course of . . . several months, it appeared that Mr. Gathright was the second suspect in
that robbery."
                 The trial court properly overruled Gathright's hearsay objection because
Lopez's statement was not hearsay, i.e., it was not offered to prove the truth of the matter
stated therein. (Evid. Code, § 1200, subd. (a); People v. Sandoval (2015) 62 Cal.4th 394,
427.) "'"Hearsay evidence" is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.'" (Sandoval, at p. 427, citing Evidence Code section 1200, subdivision (a).) In his
testimony, Lopez did not refer to any statement made by any witness or informant and he
did not provide any basis for his belief that Gathright "appeared" to be "the second
suspect."

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              The trial court also did not abuse its discretion by impliedly determining
that Lopez's testimony was relevant to explain why he persisted in investigating
Gathright despite the lack of identification evidence. Relevant evidence is evidence that
tends to prove or disprove any disputed fact that is of consequence to the determination
of the action. (Evid. Code, § 210; People v. Tully (2012) 54 Cal.4th 952, 1010.) Lopez's
few lines of testimony were relevant to explain his reasonableness and good faith in
investigating Gathright although no witness could identify him as the second robber.
              In any event, Lopez's brief testimony could not have prejudiced Gathright
pursuant to any standard of review or test of prejudice. In this respect, we agree with the
concurring opinion that Gathright's confession compels that we affirm the trial court.
Lopez testified that, based upon his investigation, it appeared that Gathright was a
suspect. Lopez did not testify that Gathright was the second robber nor did he refer to
any out-of-court witness statements implicating Gathright. Gathright confessed to the
robbery, providing details that only the second robber could have known; he stated that
Breazean greeted Perez "like he knew the guy," and the two men walked toward the back
of the store. Gathright also stated that he saw Perez strike Breazean with a taser and that
Breazean did not fall. Gathright added that he left the store before Breazean and entered
the back seat of the getaway vehicle, a convertible Mustang automobile. The jury also
viewed the surveillance recording of the robbery and could compare Gathright's stature
and build to that of the second robber.
              For the first time in his reply brief, Gathright complains of testimony
elicited from Lopez during cross-examination regarding a description of the second
robber's clothing obtained from "one of the witnesses" or "Mr. Taylor." Gathright
elicited this testimony and did not object to Lopez's answer. He has forfeited any
argument to this point on appeal. (People v. Valdez (2012) 55 Cal.4th 82, 130 [general
rule].)
                                            II.
              Gathright contends that he is entitled to one additional day of actual
presentence custody credit, for a total of 443 days. The Attorney General correctly

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concedes. (§ 2900.5 [defendant is entitled to presentence custody credit for each day
served in custody, including day of arrest and day of sentencing].)
              We modify the judgment to reflect an award of 443 days of actual custody
credit, plus 66 days of conduct credit, for a total of 509 days. The trial court shall amend
the abstract of judgment accordingly and forward the amended abstract to the Department
of Corrections. The judgment is otherwise affirmed.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


I concur:



              YEGAN, J.




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PERREN, J.
       I concur in the result.
       Appellant’s guilt is well-shown by evidence of the corpus of the crime and
appellant’s detailed confession - even if none of the witnesses could identify him. I am
fully satisfied that by any measure the conviction should stand. I respectfully disagree
with the majority that Officer Lopez’s testimony concerning “the second person,” that
person’s name, and that he continued his investigation because “it appeared that Mr.
Gathright was the second suspect in the robbery,” was either relevant or anything but
inadmissible hearsay.
       Appellant’s identity as a co-perpetrator of the crimes was the only matter in issue.
No matter or fact was in issue concerning why Officer Lopez investigated appellant
(Evid. Code, § 210), nor Lopez’s state of mind. (Evid. Code, § 1250.) Any such “issue”
was because the district attorney made it one1. The officer’s bona fides were not
questioned by appellant. Why the officer investigated appellant and how, why and from
whom the officer learned appellant’s name had nothing to do with firsthand information
concerning appellant’s involvement in the charged crimes. What was proved was that the
officer knew it was appellant based on all that he heard; that was irrelevant. (People v
Lucero (1998) 64 Cal.App.4th 1107, 1109-1110.)
       Worse, the jury was informed that “Based on the information [Lopez] received”
appellant was a suspect. Who cares? - a rough definition of relevance. What it did
inferentially prove was that other unknown and unspecified witnesses had named
appellant as the perpetrator; that Lopez, like some obsessed Javert, knew the criminal and
persisted in his quest. But Lopez wasn’t on trial and his information was, by any
definition, hearsay. (Evid. Code, § 1200.) In sum, the jury was informed that the officer
knew it was appellant, others on the street knew it was appellant, and therefore it must
have been appellant.

1
  “Here, the reasonableness of the investigation was at issue, as shown by the prosecutor
asking the detective why he continued to investigate appellant when the victims could not
identify him in the photographic lineup.” (Italics added.)
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      But for the detail and accuracy of appellant’s confession I would reverse.
      NOT TO BE PUBLISHED

I concur:




      PERREN, J.




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                                 Leslie A. Swain, Judge

                         Superior Court County of Los Angeles

                           ______________________________


             Thomas K. Macomber, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
