P. v. Armstrong

Filed 8/22/06 P. v. Armstrong CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

APPEALS from judgments of the Superior Court of Los Angeles County. John V. Meigs, Judge. Modified, remanded and affirmed.

Christopher C. Hawthorne, under appointment by the Court of Appeal, for Defendant and Appellant Lavelle Eugene Armstrong.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Jerry Lee Davenport.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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Lavelle Eugene Armstrong and Jerry Lee Davenport appeal from judgments entered upon their convictions by jury of assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2).[1] Davenport also appeals from his conviction of mayhem (§ 203, count 1). In connection with the assault count, the jury found the allegation that appellants personally used a deadly or dangerous weapon to be true as to both appellants. The trial court found to be true as to Armstrong, and Davenport admitted, the allegations of having suffered a prior felony conviction within the meaning of sections 1170, subdivisions (a) through (d), 667, subdivisions (b) through (i) and 667, subdivision (a)(1) and having served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Armstrong to an aggregate state prison term of 11 years and Davenport to an aggregate state prison term of 15 years. Armstrong contends that (1) his due process rights were violated by the jury's finding that he personally used a dangerous or deadly weapon because the underlying facts justifying that allegation were not pled in the information. Davenport contends that (2) his sentence for assault with a deadly weapon should have been stayed pursuant to section 654, and (3) the trial court abused its discretion in denying his Romero[2] motion.

Respondent requests that Armstrong's abstract of judgment be corrected to reflect that the sentence enhancement under section 667, subdivision (a)(1) was imposed and not stayed.

We modify Davenport's judgment and otherwise affirm.

FACTUAL BACKGROUND

The prosecution's evidence

On February 11, 2004, at approximately 8:30 p.m., Jaron Davis went to Jay's Billiards (Jay's), at the Hollywood Park Casino, to shoot pool and have a few beers. At approximately 9:15 p.m., appellants arrived and had some drinks. At one point, Davis was at the jukebox when Davenport approached him. They spoke for a few minutes and then went their separate ways. Later, they went to the restroom at the same time, and Davenport told Davis he was a Crips gang member. When Davenport asked him where he was from, Davis said, â€