People v. Smith CA2/8

FACTS AND PROCEEDINGS

About 5:50 p.m. in the morning on April 28, 2011, victim D’Alan Horton was walking on Vermont Avenue on his way to school. Horton was carrying his cellphone in his hand. Horton walked past appellant Elmo Smith and a second man. Appellant came up from behind Horton, tapped him on the shoulder, and asked if he could use Horton’s phone. Horton said no. Appellant tried to grab Horton’s phone. As they struggled over the phone, appellant told the second man who was standing about ten feet away to “get the gun, get the gun.” Appellant then managed to free the phone from Horton’s grasp, jumped on a silver bike near the second man, and rode away. Horton estimated that 45 to 50 seconds passed between the time appellant tapped Horton’s shoulder and when appellant fled. Horton walked to a nearby Laundromat from where he called the police. Officers arrived. Horton told them his assailant was over 40 years old, was wearing glasses, and had marks or scars on his face and a mustache and goatee. The next morning at about 5 o’clock, police stopped appellant, who generally matched Horton’s description, as appellant rode a bike that looked like the bike ridden by Horton’s…