Filed 12/22/05 P. v. Taylor CA2/8

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION EIGHT

 

 

THE PEOPLE,   Plaintiff and Respondent,   v.   KEON TAYLOR et al.,   Defendants and Appellants.

B173670   (Los Angeles County Super. Ct. No. VA076824)

 

APPEALS from judgments of the Superior Court of Los Angeles County.

Michael L. Schuur, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

 

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Keon Taylor.

 

Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Tramaine King.

 

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Michael W. Whitaker, Deputy Attorney General, for Plaintiff and Respondent.

Keon Taylor and Tramaine King appeal from judgments imposed after a jury convicted them of robbery (Pen. Code, § 211; undesignated section references are to that code), assault with a firearm (§ 245, subd. (a)(2)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury further found that Taylor personally used a firearm (§ 12022.53, subd. (b)) and inflicted great bodily injury (§ 12022.7) in the first two counts, and that he committed all three offenses for the benefit of a criminal street gang, with specific intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)). With respect to King, the jury found that he personally used a deadly weapon in the robbery (§ 12022, subd. (b)(1)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)) in both the robbery and the assault with a firearm. The jury acquitted King of one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378), and the court granted his motion for acquittal as to gang enhancement charges (§ 186.22, subd. (b)(1)) on the counts of which he was convicted. Taylor admitted having suffered a prior serious felony, strike conviction (§ 667, subds. (a)-(i)).

Taylor was sentenced to a term of 37 years, and King was sentenced to a term of seven years. Both appellants contend that their upper base term sentences were unconstitutionally imposed without jury findings (Blakely v. Washington (2004) 542 U.S. 296 (Blakely)). Taylor also contends that there was insufficient evidence to establish the elements of the gang enhancement finding.

Appellants' contentions of improper sentencing based on Blakely, supra, are foreclosed by our Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238. The judgment with respect to King therefore must be affirmed. Because we conclude that Taylor's further contention, regarding the gang enhancement, is unmeritorious, we also affirm the judgment as to him.

FACTS

Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that on the morning of May 2, 2003, the victim, Andre Bowen, visited a friend in Bellflower, who had said he knew someone who had a car for sale. Appellant King – whom Bowen identified at trial – arrived, driving a grey 1982 Oldsmobile Cutlass. Bowen inspected it, and asked King about ownership papers and a chrome strip missing from a door. King said he had the pink slip and the strip at home, and asked if Bowen wanted to test drive the vehicle.

With King, Bowen drove the car to an apartment complex several blocks away. King said he would go inside to get the paperwork. When he returned, he did not have it, and he told Bowen he was waiting for a friend to bring a speaker box. Bowen said he wanted to see the papers or he would leave, and King again went inside. He returned with appellant Taylor, whom Bowen also identified at trial. Taylor was carrying a gun. He raised it and pointed at Bowen, telling him not to move.^[1]

King pushed Bowen a bit, and Taylor swung the gun, grazing Bowen's cheek with the gun barrel. Bowen stated they could have his money, but Taylor told him to shut up, and struck him on the chin with the gun, drawing blood. Taylor pressed the gun against the back of Bowen's head, and King went through his pockets. Taylor stated he was going to blow Bowen's off, and repeatedly said, â€