P. v. Harris

Filed 8/15/06 P. v. Harris CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed in part, reversed in part and remanded.

Boyce & Schaefer and Robert E. Boyce, 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, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant Kevaughn R. Harris was convicted of one count of first degree murder and three counts of attempted murder. (Pen. Code, §§ 187, subd. (a); 664/187, subd. (a).)[1] In addition, the jury made the following findings: (1) the crimes were committed for the benefit of a criminal street gang with the specific intent to promote the criminal conduct of the gang (§ 186.22, subd. (b)(1)); (2) the attempted murders were committed willfully, deliberately, and with premeditation (§ 664, subd. (a)); and (3) a principal personally used and discharged a firearm during the commission of each of the crimes and discharged a firearm causing great bodily injury or death during the commission of the murder and one of the attempted murders (§§ 12022.53, subds. (b), (c), (d), and (e)(1)). Defendant appeals from the judgment, alleging there was insufficient evidence to support the jury's finding that the gang enhancement was true, the trial court abused its discretion by allowing testimony from a gang expert, the court erroneously imposed a minimum parole eligibility term, and failed to exercise its discretion when it sentenced defendant to consecutive terms. We find no error was committed during the trial, but agree that the matter should be remanded to the trial court for another sentencing hearing.

FACTS[2]

On the afternoon of July 11, 2003, Keenan Chaney, Jason Martin, Dequin Bradford, and Deandre Pearson were walking on the sidewalk in an area claimed by the Campanella Park Pirus, a Blood gang. Martin was a member of the Campanella Park gang.

A blue car with three occupants pulled alongside and stopped. Defendant was the driver. Someone in the car asked, â€