P. v. Blackowl

Filed 7/5/06 P. v. Blackowl CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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A jury convicted defendant Anthony Lee Blackowl of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and conspiracy to commit the same crime (id., § 182, subd. (a)(1)). After finding that defendant had suffered a prior strike within the meaning of the three strikes law (id., § 667, subds. (b)-(i)), the trial court sentenced him to a total of 11 years in state prison.

Defendant seeks reversal, contending that the trial court improperly allowed testimony suggesting defendant was affiliated with a street gang. We find the error both waived and harmless, and shall affirm the judgment.

FACTUAL BACKGROUND

On February 15, 2004, the victim Christopher Arce (Christopher) broke up with his 17-year-old girlfriend, Amber D. Amber did not take the news well; she was crying and upset.

Later in the evening, Amber drove with a girlfriend to an apartment where several young people were hanging around and drinking alcoholic beverages. Amber began discussing the break-up with other partygoers. She said she wanted something to happen to Christopher for the pain he caused her. Amber's remarks stirred up the crowd, and several of them decided to go over to Christopher's apartment and beat him up.

Defendant and three other young males got into a car with Amber, who gave them directions to Christopher's apartment. Defendant was the driver.

As soon as the group arrived, Christopher's friend Lance Fox drove up to Christopher's residence. He noticed a strange car sitting at the bottom of the driveway occupied by Amber and other people he did not recognize. Fox went up to Amber and asked what they were doing there. Just then, Christopher emerged and walked toward the vehicle to speak to Amber. As he approached the rear passenger window and bent in to talk to her, one of the men got out of the vehicle and hit Christopher in the back of the head from behind with his fist. The three other men then got out of the car and beat Christopher repeatedly, knocking him to the ground.

Fox testified that defendant was the driver of the car and one of the four young men who hit Christopher repeatedly with his fists. Fox tried to defend his friend by retrieving a baseball bat from his truck. As he did so, one of the men approached Fox with a silver-chrome looking object that looked like a sawed-off golf club and asked him if he wanted to get his â€