P. v. Tackwood

Filed 5/30/06  P. v. Tackwood CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Larry  P.  Fidler, Judge.  Affirmed.

            Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

            Defendant Jason Michael Tackwood appeals from the judgment entered after a jury found him guilty of first degree murder (Pen. Code, §§  187, 189[1]; count 1) committed for financial gain (§  190.2, subd. (a)(1)) and by means of lying in wait (§  190.2, subd. (a)(15)) and of first degree residential burglary (§  459; count 2).  The trial court sentenced defendant to state prison for life without the possibility of parole on the murder count, plus the upper term of six years on the burglary count.

            Defendant contends that the trial court erred in permitting his wife, Lacynda Tackwood (Lacynda),[2] to testify as to confidential marital communications.  In the alternative, defendant contends that his trial counsel was ineffective for failing to object to the admissibility of these communications.  Finally, defendant contends the trial court's imposition of the upper term on the burglary count contravened Blakely v. Washington (2004) 542 U.S 296, 303-304.

            We conclude that defendant failed to preserve his objection to the admissibility of confidential marital communications, defendant was not deprived of the effective assistance of counsel, and there is no impropriety in the challenged sentence.  We consequently affirm the judgment.

FACTS

            Joyce Broomfield (Broomfield) raised defendant.  Broomfield's daughter, Vicki Lewis, had a relationship with defendant's father, Louis Tackwood (Louis), when defendant was a baby.  Broomfield obtained temporary custody of defendant when he was two and one-half years old.  From that point on, defendant lived with Broomfield.

            In July 1999, defendant married Lacynda, after which they lived with Broomfield.  In March 2000, Lacynda and defendant were having marital problems.  Defendant left and refused to return home.  When defendant told Lacynda that he would come home if she borrowed money from Broomfield, Lacynda did so.  Defendant used the money to buy crack cocaine, which he and Lacynda smoked together.  This was the first time Lacynda used crack cocaine.

            In June 2000, defendant went to prison after he physically abused Lacynda.  Lacynda continued to live with Broomfield until October 2000 when a disagreement between the two women arose over Lacynda's acceptance of collect calls from defendant.  Lacynda went to live with her mother whose house was two blocks away from Broomfield's.  While defendant was in prison, Lacynda did not use drugs.

            In April 2001, defendant was released from prison.  Two weeks after his release, Lacynda, who could not live with defendant because he had been ordered to stay away from her, stopped by Broomfield's house to look for defendant.  Lacynda noticed that defendant had sold everything she had bought for him.  She was upset as she realized defendant was using cocaine again.  Lacynda, too, resumed using the drug.

            Also, after defendant's release from prison, Lacynda received an income tax refund from which she intended to repay a debt she owed to Broomfield.[3]  Defendant stole the money out of Lacynda's purse, however, and used the money to purchase drugs which they used.

            In early May 2001, Broomfield, Lacynda and defendant had a conversation during which Broomfield told defendant that she was not going to leave him her house because â€