Filed 12/7/05 P. v. Allen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ALEXANDER ALLEN, Defendant and Appellant. | B174223 (Los Angeles County Super. Ct. No. BA230552) |
APPEAL from a judgment of the Superior Court of Los Angeles County. William F. Fahey, Judge. Affirmed in part; reversed in part; and remanded for resentencing.
Linda Buchser, 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, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
A jury convicted appellant, Joseph Alexander Allen, among other offenses, of assault with a firearm, robbery, and possession of illegal drugs for purposes of sale. The jury found true firearm and other allegations related to those offenses. He appeals his conviction to challenge the sufficiency of the evidence to sustain one of the convictions for assault with a firearm. He also asserts numerous claims of sentencing error. We find certain of his allegations of sentencing error have merit. We will accordingly stay punishment on two counts, partially reverse his sentence on another count and remand for resentencing. We affirm the judgment of conviction in all other respects.
FACTS AND PROCEEDINGS BELOW
William Hall lived in a small, bachelor-style house at 342-1/4 East 51st Street in Los Angeles. Gregory Jones was Hall's caretaker. The two men lived in Hall's small house located behind another residence.
On April 1, 2002 Jones and Hall were in the house smoking crack cocaine. Sometime between noon and 1:00 p.m. Martin Davis came by to visit. Davis drove his car up to Hall's and Jones's residence and noticed a minivan parked in front of their house. Davis honked his car horn. When the minivan did not move, Davis backed up and parked in front of the neighbor's house. Appellant was the driver of the minivan. Davis recognized appellant as someone he knew from the neighborhood.
Davis went inside the house and poured himself and Hall a drink.
Perhaps ten minutes later appellant knocked on the door. Jones opened only the inner door and kept the security door closed. Jones, Davis and Hall saw appellant standing on the porch outside the door. A second young man stood behind appellant on the steps. Jones knew appellant well. Jones had purchased crack cocaine from appellant on numerous prior occasions. On the last occasion appellant had supplied Jones crack cocaine on credit. Appellant gave Jones around $30 worth of drugs and when Jones tried to pay him back appellant insisted Jones instead owed $60. Jones gave appellant the additional $30 but appellant claimed Jones owed an additional sum for paying late. Appellant continued to extort money from Jones until Jones had paid appellant approximately $140.
Jones told appellant he was not going to pay him any more money. Appellant said he was not there to collect more money but to offer Jones some drugs to buy. Appellant offered Jones a small rock of cocaine for $10. Jones said the piece was too small. Appellant told his friend to show Jones the pieces of crack cocaine he had in his possession. Jones opened the security door and stepped out onto the porch as appellant's friend showed Jones the other pieces of crack cocaine. Just as Jones stepped outside appellant hit Jones in the eye with such force it knocked Jones off the porch. Appellant then pointed a gun at Jones and ordered him into the house. Jones did not want to comply as he was afraid of being â€