P. v. Ivey
Filed 2/23/06 P. v. Ivey CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. ALEX IVEY, Defendant and Appellant. | A109161 (Alameda County Super. Ct. No. C146133) |
Defendant was convicted of first degree murder with use of a firearm (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subd. (b));[1] a special circumstance allegation was found true (§ 190.2, subd. (a)(17)(A)).[2] Defendant was sentenced to life in prison without the possibility of parole. On appeal defendant contends that the trial court applied the wrong legal standard to the question of whether he had made a prima facie showing of purposeful discrimination under Batson v. Kentucky (1986) 476 U.S. 79 (Batson), and that the trial court erred prejudicially in failing to give any jury instructions relating to the special circumstance allegation. As to the first issue, we find error and order a limited remand; as to the second issue, we find the obvious error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
I. Background
A. Procedural Background.
Defendant was charged by information with one count of murder (§187, subd. (a)), one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)); use of a firearm enhancements were also charged (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b), (c) & (d)), as well as a special circumstance allegation (§ 190.2, subd. (a)(17)(A) [murder during the commission or attempted commission of robbery].[3] Defendant was convicted by jury trial of all counts and allegations. He was sentenced to life without the possibility of parole on the murder charge; the sentences on the remaining count and enhancement were ordered to run concurrently.
B. Factual Background.
On February 21, 2003,[4] Ernesto Ortega was shot to death near the Quarter Pounder Giant Burger in Oakland. Defendant and Jade Carter were charged with Ortega's murder. Carter was found guilty of the murder as an aider and abettor and testified for the prosecution at defendant's trial, prior to her sentencing. Her understanding was that she would receive a sentence of thirteen years for voluntary manslaughter and robbery, with a firearm arming enhancement (rather than twenty-five years to life for first degree murder), if she testified truthfully.
Carter testified that she was a long-time friend of defendant and was at his house on February 21. They eventually went out to an Oakland club and to a â€
