P. v. Tarkington and Allen 12/9/08 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B199860

Case Date: 01/29/2009

Preview:Filed 12/9/08 P. v. Tarkington and Allen CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. LAMONT T. TARKINGTON AND DARRIS ALLEN, Defendants and Appellants.

B199860 (Los Angeles County Super. Ct. No. MA 034011)

APPEALS from judgments of the Superior Court of Los Angeles County. Carol C. Koppel, Judge. Judgments affirmed in part, reversed in part with directions. ________ David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Lamont T. Tarkington. Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and Appellant Darris Allen. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent. _________

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Defendants Lamont T. Tarkington and Darris Allen appeal from their convictions of five counts of robbery and one count of commercial burglary. Defendants challenge the admission of certain evidence and the correctness of their sentences. We affirm the convictions and modify the sentences. FACTS AND PROCEEDINGS BELOW On December 14, 2005, at approximately 10:15 a.m., three men wearing masks, hooded sweatshirts and gloves entered a Bank of America branch inside a supermarket in Palmdale. The men ordered everyone to get down on the floor. One of the men stood in the lobby of the bank while the other two jumped over the counter and ordered the two tellers to open their cash drawers. Each of the men kept one hand inside his sweatshirt pocket and acted as if he was pointing a gun at the bank employees. While the two men behind the counter stuffed cash into bags the man in the lobby kept time, telling his partners "Bloods we got time" and then "Lets go Bloods." When the man in the lobby called out it was time to go, all three of the robbers immediately left the bank. A pack of red dye was mixed in with the money the robbers took. It was designed to explode if the currency was moved beyond a certain area. The bank had also recorded the serial numbers of some of the bills taken in the robbery. A customer saw one of the men who had jumped the counter run out of the bank holding a bag in one hand and a gun in the other. Another witness testified that she saw four masked men run from the supermarket, get into a white SUV parked at the curb with its engine running and drive away. The witness wrote down the license number of the robbers' get-away car and gave it to the police. The police later found the car abandoned a half a mile from the bank. It had been stolen. On the outside of the car's left rear passenger door the police found a finger print from Allen's left middle finger. The police also observed a line of red dye across the back of the rear seats and along the inside one of the rear doors. This suggested to the officers that a dye pack contained among the currency had exploded.

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The day after the robbery the police located an exploded red dye pack approximately half a mile from where they found the get-away car. At approximately 9:00 p.m. on the day of the robbery, police stopped a car registered to Tarkington and driven by Allen for a traffic violation. Tarkington, the only passenger, gave the police a false identification. Inside the car the officers found approximately $3,000 in a black plastic bag wedged between the driver's seat and the center console. They found additional money in a jacket on the back seat. The currency in the bag and the jacket were stained with red dye. Some of the money appeared to have been bleached in an effort to remove the dye. When the police searched Tarkington they found currency stained with red dye in one of his pockets. Two of the bills found inside the car had serial numbers that matched bills taken in the Palmdale robbery. When the police later inventoried the car they found a bag of coins covered with red dye. Allen told police that he obtained the cash by selling his girlfriend's car to a man named Marcus Frye. A computer check showed no vehicle registered in the name of Allen's girlfriend and no information whatsoever on the name Marcus Frye. When the police told Allen that they were going to attempt to locate Frye, Allen changed his explanation regarding the cash and said that he obtained it by selling marijuana to a man named Mark. Asked where Mark lived, Allen said he was not a snitch and refused to answer the question. At trial, one of the bank tellers testified that Tarkington had similar skin color, height and build as one of the robbers who had jumped over the counter and that Allen had similar skin color, height and build as the robber who stayed in the lobby keeping time. Over the objections of Tarkington and Allen, the court permitted the prosecution to introduce evidence that Tarkington had pleaded guilty to robbing a Bank of America branch in Lancaster in 1997. The prosecution argued that the evidence was admissible because the 1997 robbery was sufficiently similar to the present one to show identity and a common plan or scheme.

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The prosecution introduced evidence intended to show that the defendants committed the robbery and burglary for the benefit of a criminal street gang, the 8 Trey Gangster Crips. We summarize that evidence below in our discussion of the gang and firearm enhancements. Allen testified that he did not rob the bank or know anything about the robbery. He told the jury that he had formerly worked in local oil refineries where he used chemicals to clean toxic waste out of tanks after they had been emptied. After being shot in the head during a carjacking he could not continue working so he became a car thief, stealing cars for people who wanted certain parts. Allen admitted that he stole the car used in the robbery but stated he did not know how the vehicle would be used. He stole the car at the request of a man named Marcus Frye who promised to pay him $3500 for it. Frye paid him the money on the evening of the robbery. According to Allen, the money the police found in his possession was the money he received from Frye. During cross-examination the court required Allen to answer questions about what he had discussed with his attorney prior to his testimony. The jury convicted both defendants of five counts of second degree robbery and one count of second degree commercial burglary.1 The jury also found that the robberies and burglary were committed for the benefit of a criminal street gang and that as to the robbery counts a principal was personally armed with a firearm and personally used a firearm. The court sentenced Tarkington to a term of 39 years, 4 months consisting of the upper term of 5 years for the robbery in count one and one-third the midterm for the remaining offenses doubled under the Three Strikes Law plus 10 years for the gang enhancement and an additional 10 years for the firearm use enhancement. The court sentenced Allen to a prison term of 27 years, 8 months consisting of the midterm of 3 years for the robbery in count one and one-third the midterm for each

The People concede and we agree that the sentence on the burglary conviction must be stayed under Penal Code section 654.

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of the remaining offenses plus 10 years for the gang enhancement and 10 years for the firearm use enhancement. Tarkington and Allen filed timely appeals. DISCUSSION I. EVIDENCE OF TARKINGTON'S PREVIOUS CONVICTION FOR BANK ROBBERY

Over the objection of Tarkington and Allen the court permitted the prosecutor to introduce evidence that Tarkington and previously been convicted of robbing a Bank of America branch in Lancaster. The transcript of Tarkington's plea agreement was read to the jury. It showed the following facts. Tarkington entered the bank with two other men. Tarkington pointed a gun at tellers and customers and yelled "This is a robbery. Everyone get down." Tarkington stood in the lobby communicating with someone outside the bank on a walkie-talkie while the other two men leaped over the teller counter and collected money from the cash drawers. When Tarkington called out "Hurry up, we got to go" he and his cohorts left the bank with the money, jumped into a car and sped off.2 After the reading of the transcript the court instructed the jury that it could consider the evidence of the prior bank robbery "only if the prosecution has proved by a preponderance of the evidence that the defendant did, in fact, commit bank robbery in the past. [

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