P. v. Gilliam























Filed 10/7/10 P. v.
Gilliam CA3







NOT
TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. ZENITH GILLIAM, Defendant and Appellant.

C062087 (Super. Ct. No. 08F04519)

A jury convicted
defendant Zenith Gilliam of assault with
a deadly weapon, to wit, a knife, and found a great bodily injury
allegation to be true. The jury
deadlocked on an attempted murder count upon which the court declared a
mistrial and later dismissed on the prosecutor's motion. The trial court found three strike priors and
prior serious felony conviction allegations to be true.

After denying
defendant's motion to dismiss the strike priors, the trial court sentenced
defendant to state prison for 25 years
to life plus three years for the great bodily injury enhancement and five years
for a prior serious felony conviction.

On appeal,
defendant contends that the trial court abused its discretion in refusing to
strike the strike priors. We reject
defendant's contention and affirm the judgment.

FACTS

On May 26, 2008, Branko Majstoric was
visiting Crystal Winters in her apartment when defendant entered. Winters believed she saw defendant fold and
put a black-handled knife in his pocket.
Winters demanded to know why defendant had just walked into her apartment. Defendant told her to shut up. Majstoric intervened verbally and exchanged
words with defendant. They agreed to go
outside where they continued to argue.
Defendant punched Majstoric four or five times. Majstoric ran away but returned, yelling that
he had been stabbed by defendant.
Majstoric sustained three stab wounds on his upper body.

With respect to
defendant's strike priors, the record reflects the following. In 1993, defendant got into an argument with
people at an apartment and left, warning that he would return with guns. He returned to the apartment armed with a
nine-millimeter semiautomatic assault weapon and entered victim #1's
apartment. He fired two or three times
at victim #2, turned and walked to the kitchen where he shot victim #3 six
times. He then shot once down the
hallway at victim #2 and then left.
Defendant was convicted of attempted murder, assault with a firearm, and
first degree burglary with firearm and great bodily injury enhancements and was
sentenced to state prison for an aggregate term of 18 years. Defendant was paroled in 2005. He returned to custody on a parole violation
in 2007, and was released on parole again in January 2008. He was on parole when he committed the
current offense.

Defendant's history
includes juvenile adjudications for cruelty to animals when he was 15 years of
age and assault with a firearm when he was 17 years of age. Besides defendant's strike priors, his adult
record includes misdemeanors for carrying a concealed weapon (1989), possession
of burglar tools (1990), and vehicle theft (1993).

Defendant was
unemployed at the time of the current offense but he claimed he had previously
worked in several professions. Defendant
denied the use of any controlled substances and claimed to be in excellent
health except for suffering from asthma.
He was an admitted gang member and classified as such but denied being
an active member. During the pendency of
the current case, defendant was written up for bad jail behavior and received five
days of restriction.

Defendant filed a motion to dismiss his strike priors,
arguing that his convictions arose from a single incident at a single location
and should be considered as one strike, not three, citing a line of cases. He also argued 25 years to life would be
excessive in view of the facts of the current offense and his misdemeanor
criminal history.

In denying
defendant's motion, the court stated that it had found the line of cases
defendant cited to be inapplicable.
Based on defendant's prior criminal history, his commitment to state
prison, his parole violations, and his current offense, the court declined to
strike any priors.

DISCUSSION

Defendant appears
to contend the trial court abused its discretion by failing either to strike
one or two of his prior convictions because his three prior strikes were so
closely connected as to constitute a single unlawful incident. He further seems to claim his potential
punishment as a two-strike or, perhaps, as a one-strike offender would have
been sufficient. Finally, he asserts his
record was not otherwise particularly significant.[1] We find no abuse.

A trial court may,
in the furtherance of justice, strike a strike prior for purposes of sentencing,
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