P. v. Allen

Filed 5/27/08 P. v. Allen CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:*

Michael Legrand Allen appeals from the judgment entered following a jury trial resulting in his conviction of being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)).[1] In the same proceedings, the jury acquitted him of a charge of attempted murder and the jury deadlocked six-to-six on two charges of felonious assault. At that point, appellant agreed to a plea bargain. The prosecutor proposed that appellant would be sentenced to a four-year prison term for possessing the firearm, consisting of a doubled, two-year middle term as appellant had a 1997 conviction of discharging a firearm in a grossly negligent manner ( 246.3), a serious felony within the meaning of the three strikes law (No. BA158728). ( 667, subds. (b)-(i), 1170.12.) If appellant accepted that term of imprisonment, the prosecutor would dismiss the remaining charges and enhancements. Appellant agreed, and the trial court then sentenced him, as promised, to the four-year prison term. The remaining counts and enhancements were dismissed.

We appointed counsel to represent him on this appeal.

After examination of the record, counsel filed an Opening Brief in which no issues were raised.

On February 14, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider.

No response has been received to date.

I. The Charges

Appellant was charged in the information with attempted willful, deliberate, and premeditated murder with the use of and discharge of a firearm (count 1), two counts of felonious assault, one with the use of a firearm (counts 2 and 3), and being a felon in possession of a firearm (count 4).

II. The Trial Evidence

The evidence adduced at trial established that on June 6, 2005, R.W. attended a small gathering at the residence of a friend, Nisha Fort (Fort). Fort lived in Inglewood with her mother and her baby. At about 11:00 p.m. on that date, the other visitors had left the residence, and R.W. was preparing to leave. At that time, a male, whom R.W. only saw silhouetted through the door, knocked on the Forts front door. Then, the male left, and five minutes later, R.W. walked to his Chevrolet Blazer, which was parked on the street. He drove off.

As R.W. turned the corner near the Forts residence in his Blazer, a beat up, old burgundy car drove past him and made a U-turn. R.W. entered the 105 Freeway at 120th Street eastbound. The burgundy car followed him onto the freeway, and its driver engaged in a number of dangerous maneuvers near R.W.s Blazer, including bumping R.W.s rear bumper and causing damage to the Blazer. The burgundy cars driver also tailgated R.W. R.W. drove off the freeway at Central Avenue. On the city streets, the burgundy cars driver pulled up beside R.W. and then sideswiped his Blazer. While driving beside R.W., the driver waved a dark-colored object that was in the drivers hand. The driver then pulled behind R.W., and a shot rang out. The male burgundy cars driver had shot at the Blazer, putting a hole in its rear window. The bullet also pierced the Blazers rear view mirror and ricocheted off the windshield into the dashboard.

After the shooting, the burgundy cars driver stopped his pursuit, and R.W. drove to his grandmothers residence. R.W. immediately reported the shooting. Fort gave R.W. a photograph of appellant, and R.W. provided the photograph to the detective investigating the shooting. R.W. also gave the detective the bullet that he later found inside his Blazers vent.

Diana Fort, Forts mother, testified that appellant was the father of her daughters baby. Fort and appellant had married for the babys benefit, but appellant never lived with Fort. R.W. testified that he was a friend of Forts; their relationship was not romantic.

R.W. identified appellant in court as his assailant, but said that he no longer was 100 percent sure of his earlier identification of appellant. He explained that when he had given the detective appellants photograph, he told the detective that his assailant was depicted in the photograph. However, after the shooting, in March 2006, he went to a club. During the evening, he noticed a man watching him. R.W. had eye contact with the man. The mans response was to look spooked or surprised, and the man hurriedly left the club. The man bore a resemblance to the assailant. This encounter led R.W. to question whether appellant was truly the driver who had assaulted him with a firearm.

R.W. identified the front of appellants car, a burgundy Chevrolet Lumina. He claimed that appellants burgundy Lumina appeared to be the same vehicle used during the shooting.

On June 10, 2005, the detective received a telephone call from Diana Fort. The detective and his partner immediately proceeded to the Fort residence, where they arrested appellant, who was standing outside. The detectives took appellants car keys and searched appellants Lumina, which was parked at the curb.[2] In the glove box, the detectives found a loaded firearm. A ballistics expert opined that appellants firearm discharged the bullet R.W. recovered from his Blazers dashboard.

For the purpose of proving count 4, appellant admitted during bifurcated proceedings that he had the 1997 conviction of discharging a firearm with gross negligence.

III. The Defense

In defense, appellants mother testified that when the shooting had taken place, appellant had loaned his Chevrolet Lumina to another youth named Derrick. She claimed that appellant frequently loaned his car to friends. After the shooting, when his friend returned the vehicle, she noticed that it had sustained more body damage than was previously present on the vehicle.

IV. The Verdict and a Mistrial

During final argument, trial counsel argued mistaken identification. The jury convicted appellant of count 4, being a felon in possession of a firearm. It acquitted him of the attempted murder alleged in count 1, and the jury hung six-to-six with respect to the assaults in counts 2 and 3. The trial court declared a mistrial with respect to those counts 2 and 3.

V. Defendants Background

The probation report disclosed that appellant was a Crip gang member who abused phencyclidine and refused to participate in drug treatment. He had a mildly serious juvenile and adult criminal history involving drug possession and sales, as well as a history of illegal firearm possession. He had served two separate prison terms. Appellant was autistic and suffered from an impulse control disorder.

VI. Discussion

In 1997, section 246.3 provided as follows: Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison. According to the probation report, appellant served a separate prison term for this offense. Such an offense, when punished as a felony, is a serious felony that triggers the three strikes sentencing scheme. (See People v. Leslie (1996) 47 Cal.App.4th 198.) Appellants acceptance of the benefits of a sentence bargain precludes him on appeal from challenging any possible defect in the sentencing or underlyng the plea agreement. (People v. Couch (1996) 48 Cal.App.4th 1053, 1058;see also People v. Jackson (1985) 37 Cal.3d 826, 836, overruled on another point in People v. Guerrero (1988) 44 Cal.3d 343, 348; People v. Welge (1980) 101 Cal.App.3d 616, 624.)

The record discloses that trial counsel explored the defenses available to appellant based on appellants mental condition.

VII. Conclusion

We have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The Lumina was registered to appellants mother at her Sunland residence. The mother told the detective after she recovered the Lumina from impound that appellant drove the Lumina.