P. v. Stevens













Filed 8/6/10 P. v.
Stevens 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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. JAMEL RASHAWN STEVENS, Defendant and Appellant.

C060838 (Super. Ct. No. 07F00732)

A jury found
defendant Jamel Rashawn Stevens guilty of first
degree murder (Pen. Code, § 187, subd. (a)), while sustaining
allegations he used a firearm (Pen. Code, § 12022.53, subd. (d)) and was
at least 14 years of age at the time of the crime (Welf. & Inst. Code,
§ 707, subd. (b)).[1] The court sentenced defendant to 50 years to
life in state prison.

On appeal,
defendant contends (1) there is insufficient evidence of premeditation and
deliberation to support his conviction for first degree murder, (2) the court
incorrectly instructed on the provocation required to reduce first degree
murder to second degree murder, (3)
the 25-years to life sentence on the gun enhancement violated principles of
double jeopardy, and (4) the trial court erred in failing to furnish the
Department of Corrections and Rehabilitation with an abstract of judgment
reflecting the award of presentence custody
credits. We shall affirm but order
the trial court to modify the abstract of judgment to reflect presentence
custody credits.

FACTS

On January 17, 2007, three teenage
boys--Jeremy Basped, Lamar Gasaway, and Shelby Freeman--took the light rail train
to Florin Road. They went to a nearby mini-mart, where Basped
saw defendant and another boy leaving the store. The three boys bought some items and left
after three to four minutes. When they
left, defendant, aged 14, and his companion were outside.

Defendant was
standing by the door, where he exchanged words with Gasaway, who then punched
defendant in the face. Gasaway hit
defendant several times, but defendant did not strike back. Defendant put his head down and tried to grab
Gasaway, but fell to the ground.

Gasaway stood up
seven to eight feet away and faced defendant, who pulled out a pistol as he
stood up. Gasaway saw the pistol and ran
toward the street. Eyewitnesses heard
several shots as defendant pursued Gasaway.

Gasaway was
between 16 and 25 feet away when defendant started shooting. He fell once in a dirt area by the curb but
got up and kept running onto Florin Road,
where he fell in the middle of the street.
Firefighters arrived shortly afterward but could not revive him. Gasaway died of a single gunshot wound to the
chest from a .22-caliber bullet. The
lack of stippling ruled out a contact wound.

One eyewitness
described the shooter as an African-American male of about 16 to 18 years of
age, who was wearing a brown jacket with the number 32 on the back. The eyewitness saw the shooter run down a
side street.

A search of the
scene found no gun or bullet cases, but officers discovered a damaged cell
phone registered to defendant and a baseball cap. The phone contained a partial sample of DNA
that matched defendant's, with a probable random match of 1 in 50 for
African-Americans, 1 in 240 for Caucasians, and 1 in 130 for Hispanics. DNA from the hat matched defendant's sample,
with a random match probability of 1 in 28 billion for African-Americans, 1 in
17 billion for Caucasians, and 1 in 30 billion for Hispanics.

Defendant's home
was searched two days after the murder.
Defendant's student identification card was found in one bedroom, along
with writings and photographs attached to the wall. Among the writings were such phrases as: â€