P. v. Smith













Filed 5/13/13 P. v. Smith CA2/3











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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. James Rogers Smith, Defendant and Appellant.

B245432 (Los Angeles County Super. Ct. No. GA070331)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Candace Beason, Judge.
Affirmed.



California
Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment
by the Court of Appeal, for Defendant and Appellant.



No
appearance for Plaintiff and Respondent.



A jury
found defendant and appellant, James Rogers Smith, guilty of willful,
deliberate and premeditated attempted
murder (Pen. Code, §§ 664 & 187, subd. (a)), committed for the
benefit of, at the direction of or in association with a href="http://www.mcmillanlaw.com/">criminal street gang (Pen. Code, §
186.22, subd. (b)(1)(C)) and during which he personally used a firearm (Pen. Code, § 12022.53, subds. (b) &
(c)), possession of a firearm by a felon (former Pen. Code, § 12021, subd.
(a)(1)) and evading a police officer with a willful disregard for the safety of
persons or property (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced Smith to a term of
37 years-to-life in prison. Smith
appealed from the judgment and filed a petition for writ of habeas corpus. This court consolidated the petition with the
appeal and, in an opinion filed April 11,
2011 (People v. Smith
(B217167, B226570) [nonpub. opn.]), determined that the trial court’s failure
to properly instruct the jury on the alleged gang allegation “require[d]
reversal and remand on that ground only.”
With regard to Smith’s remaining contentions, this court held there was
no error or that any error which occurred had been harmless.

On remand,
the trial court noted that this court had reversed the gang allegation and
indicated that, under the circumstances, sentence would not be imposed “in that
regard.” The trial court, however,
imposed a term of 37 years in prison. Smith’s
counsel filed a motion for reconsideration of the sentence and the trial court
granted it. At the second resentencing,
held on October 10, 2012,
the trial court imposed a total term of 27 years-to-life in prison. We affirm.


FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.href="#_ftn1" name="_ftnref1" title="">[1]

At
approximately 4:00 a.m. on July 13, 2007, Ruben Wardlaw, a
member of the Pasadena Denver Lane Bloods gang, was standing outside the
Community Arms Apartments on Orange Grove in Pasadena. Wardlaw was wearing burgundy colored shoes
and, although it was covered by his white shirt, a red belt. A white Chevrolet Impala drove past Wardlaw,
then turned around. Fearful that
something was about to happen, Wardlaw hid behind a gate. However, as the Impala drove past him the
second time, the driver, Smith, fired gunshots at Wardlaw. Although Wardlaw was not injured, bullets
tore his shoe and jeans. A metal pole
that Wardlaw had been standing behind had a bullet “strike mark” and bullet
fragments were found below the pole.
Shell casings were also recovered from the site.

As police
officers were talking to Wardlaw, Smith again drove the Impala down Orange
Grove. Wardlaw informed the officers
that that was the car from which the shots had been fired. Smith, after making eye contact with one of
the police officers, then “ ‘gunned’ ” it and drove off. A chase ensued during which Smith drove over
100 miles per hour on the 210 Freeway as he was being followed by black
and white patrol cars with their sirens on.
Smith eventually pulled to the side of the road and parked. He was apprehended as he walked away from the
car, with the keys to the Impala “on him.”
A search of the Impala revealed a bullet casing on the floorboard in
front of the driver’s seat.

At
approximately 4:25 a.m. on that same
day, Mike Statt was asleep in his truck, which was parked on the side of the
210 Freeway. He heard a “big bang,” as
if something had hit the truck, and police cars drive by with their sirens on. When he looked outside, Statt found a gun, a
gun clip and spring, and a bullet. He
gave the items to police who discovered a “spent casing in the gun’s ejector
port.”

Wardlaw,
who indicated that he was not a “snitch,” refused to go to a field showup to
identify Smith and, at trial, claimed he did not recognize Smith.

After he
was taken into custody, Smith made two incriminating telephone calls. During the first call, he indicated that he
had been the only one in the car and that the police had evidence, including
“gun, casings [and the] car,” which they could use against him. In another call, Smith stated that he hoped
he could “get the charges dropped to a lesser” crime, but that the “trucker
. . . on the freeway” found the gun.

A firearms
identification expert examined the gun, a Hi-Point semiautomatic pistol
recovered from the 210 Freeway, along with two shell casings recovered from the
site of the shooting and the casing found in the Impala. The expert’s tests indicated that the casings
had been fired from the Hi-Point gun.

While Smith
was at the station, Ted Hamm, a scent hound handler for the Los Angeles
County Sheriff’s Department, used a “Scent Transfer Unit” to transfer scent
from the nine-millimeter handgun to a gauze pad. A scent dog, Bojangles, smelled the pad, then
led Hamm through the station “to
the room in which Smith was being held and ‘alerted’ to Smith.”

With regard
to Smith’s gang affiliation, there was evidence that the Pasadena Denver Lanes
gang, to which Wardlaw belonged, was a rival of the Altadena Block Crips gang,
to which Smith belonged. One of the
detectives investigating the matter based his conclusion that Smith was a gang
member on several factors, including that at the time of his arrest Smith had
in his possession the prison address of the most notorious Altadena Block Crip
member and a photograph of a dead Altadena Block Crip. In addition, other detectives who had
personally spoken to Smith, Smith’s girlfriend and a confidential informant had
all indicated that Smith had admitted to them that he was a gang member. Finally, after being “given a hypothetical
based on the facts of this case,” one of the investigating detectives indicated
that “it was his opinion that shooting at Wardlaw benefitted the Altadena Block
Crips[] because the crime created fear in the community[] and [the]
shooting . . . showed a willingness to retaliate” for incidents
involving rival gangs.

2. Procedural
history.

In an
information filed on September 11,
2007, Smith was charged with willful, deliberate and premeditated
attempted murder (Pen. Code, §§ 664 & 187, subd. (a)), committed for
the benefit of, at the direction of or in association with a criminal street
gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and during which he personally used
a firearm (Pen. Code, § 12022.53, subds.
(b) & (c)) (count 1), possession of a firearm by a felon (former Pen. Code,
§ 12021, subd. (a)(1)) (count 2), and evading a police officer with a willful
disregard for the safety of persons or property (Veh. Code, § 2800.2,
subd. (a)) (count 3). On August 7, 2008, a jury found Smith
guilty of all counts and allegations. On
June 18, 2009, after Smith
admitted that he had suffered prior convictions and served prior prison terms,
the trial court sentenced him to 15 years to life for the attempted murder
plus 20 years for the gun enhancement.
As to count 2, possession of a firearm by a felon, the trial court
stayed imposition of sentence pursuant to Penal Code section 654. For his conviction of count 3, evading an
officer, the trial court imposed a term of two years. With regard to Smith’s admissions that he had
previously suffered convictions for which he served prison terms, the court
imposed two 1-year terms pursuant to Penal Code section 667.5, subdivision (b).

Smith
appealed from the judgment and filed a petition for a writ of habeas
corpus. In his appeal, Smith asserted
that the trial court, when instructing the jury on the gang enhancement alleged
pursuant to the murder charged in count 1, “confused the offenses supporting
the element of ‘primary activities of the gang’ with the offenses showing a
‘pattern of criminal activity.’ ”
Smith contended that this confusion “require[d] a reversal of the true
finding on the enhancement.” This court
agreed that “a reversal and remand [was] necessary.” In its disposition, this court stated: “The true finding on the gang enhancement
under Penal Code section 186.22, subdivision (b)(1)(C), alleged in count 1 is
reversed and remanded for further proceedings.
The judgment is otherwise affirmed.
The petition for writ of habeas corpus is denied.”

At a
hearing held on January 26 2012, the trial court resentenced Smith, using count
3 as the base term by imposing the midterm of two years, “running count 1
consecutive to that[] and imposing and staying the time, the midterm[,] on
count 2, and imposing and staying the two one-year priors . . . .” In total, the trial court sentenced Smith to
37 years in prison.

On May 31,
2012, Smith’s counsel filed a “Motion for Reconsideration of Sentencing.” Counsel asserted that Smith’s attorney of
record had not been notified of the resentencing, that Smith had not been
present at the proceedings and that counsel believed “that the [trial] [c]ourt
. . . miscalculated the amount of prison time due to the appellate court’s
decision in [this] case.” The trial
court granted the motion and set the matter for resentencing on October 10,
2012.

On October
10, 2012, the trial court again resentenced Smith. After some discussion regarding errors which
had been made at past proceedings, Smith’s counsel addressed the trial court
and indicated that, although the docket showed that the court had agreed to
sentence Smith to 29 years-to-life, counsel believed that, “in [view] of what’s
happened in the appellate court and all the other problems in the case, that as
to count 3, that [the] count [should] run [the term] concurrently, which
would knock [the sentence] down [to] 27-to-life. [¶]
[Counsel indicated that he believed that,] in the interest of justice,
considering everything that has occurred in this case, . . .
that would be a fair thing to do . . . .”
After hearing the prosecutor’s argument urging the trial court to
sentence Smith to the originally agreed upon term of 29 years to life, the trial
court indicated that it would “accept [defense counsel’s] recommendation.”

As to count
1, the attempted murder, the trial court imposed a term of 7 years to
life, plus 20 years for the firearm allegation.
As to count 2, Smith’s conviction of possession of a firearm by a felon,
the court stayed imposition of sentence pursuant to Penal Code section
654. With regard to count 3, evading a
police officer, the trial court imposed a sentence of two years in prison, the
term to run concurrently with that imposed for count 1. The court struck the two prison priors and,
in total, sentenced Smith to 27 years to life in prison. The trial court awarded Smith presentence
custody credit for 1,917 days actually served and 109 days of good time/work
time from the initial jail time, for a total of 2,026 days.

The trial court
ordered Smith to pay a $200 restitution fine (Pen. Code, § 1202.4, subd.
(b)), a suspended $200 parole revocation restitution fine (Pen. Code,
§ 1202.45), a $60 court security fee (Pen. Code, § 1465.8), a $90 criminal
conviction assessment and a $10 court construction fee. The court then ordered that an amended
abstract of judgment be prepared and forwarded to the Department of Corrections
and Rehabilitation.

Smith filed
a timely notice of appeal on November
20, 2012.







CONTENTIONS

After
examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the
record. By notice filed March 1, 2013,
the clerk of this court advised Smith to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.

REVIEW ON APPEAL

We
have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (>Smith v. Robbins (2000) 528 U.S. 259,
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)

DISPOSITION

The
judgment is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS











ALDRICH,
J.





We concur:





KLEIN,
P. J.











CROSKEY,
J.