People v. Brooks (26 Cal. App. 4th 142, 1994)

Opinion

RAMIREZ, P. J.

— A jury convicted Marquibe Lonnell Brooks of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), threatening to commit a crime which would result in great bodily injury (Pen. Code, § 422), and dissuading a witness (Pen. Code, § 136.1, subd. (c)(2)). As to the first two offenses, the jury further found that Brooks committed them for the benefit of a street gang. (Pen. Code, § 186.22, subd. (b).) He was sentenced to prison and appeals, claiming the trial court erroneously instructed the jury, failed to bifurcate the gang allegation and sentenced him. He also contends that his stipulation concerning the gang allegation was invalid. In supplemental briefing, he argues that the evidence was insufficient to support one of his convictions. We agree only with Brooks’s contention about the gang allegation stipulation and one of his jury instruction arguments, as it relates to one of the counts. Therefore, we reverse that count and the gang allegations. This necessitates a resentencing of Brooks, which moots his sentencing arguments. We affirm his remaining convictions.

Facts

The victim testified that she witnessed a robbery perpetrated by members of the 12th Street Crips in September 1991. She had gone to court twice for the robbery prosecution, the second time during the last two or three days of October. She stated, variously, that “between maybe the 12th and the 15th” or “towards the middle” of November, Brooks came to her home and grabbed her by the throat and put a gun up to her head. He said, “ ‘Don’t go to court and testify against our home boys, [¶] Or else we’ll hurt you or we’ll take you out. If you go to court and testify, I’ll kill you. [