P. v. Lewis
Filed 4/25/06 P. v. Lewis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. EDDIE JAMES LEWIS et al., Defendants and Appellants. | E035918 / E036214 (Super.Ct.No. RIF 105632) OPINION |
APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Michael A. Washington.
Terrence Version Scott, under appointment by the Court of Appeal, for Defendant
and Appellant Eddie James Lewis.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
1. Introduction
Based on defendants Eddie James Lewis's and Michael Andrew Washington's participation in two separate drive-by shootings, a jury found them guilty of three counts of attempted murder (counts 1 to 3) (Pen. Code, §§ 664, 187, subd. (a))[1] and one count of discharging a firearm from a motor vehicle (count 4) (§ 12034, subd. (c)). The jury also found Washington guilty of being a felon in possession of a firearm (count 5). (§ 12021, subd. (a)(1).) The jury found true the special allegation that the attempted murders were willful, deliberate, and premeditated. The jury also found true the following enhancement allegations: each of the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); in counts 1 and 2, the principal intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and, in counts 3 and 4, Washington personally and Lewis vicariously discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). Lewis admitted that he had two prior serious or violent felonies, one of which also qualified as a strike. (§ 667, subds. (a), (c)-(e)(2)(A).) The trial court sentenced Lewis to a total determinate sentence of 47 years plus an indeterminate sentence of 155 years to life. The court sentenced Washington to a total determinate sentence of 73 years, an indeterminate sentence of three consecutive life sentences, plus an additional term of 25 years to life.
Defendants raise several claims on appeal, each joining in the other's arguments to the extent appropriate: Lewis argues that the court erred in denying his Batson/Wheeler[2] motions based on the prosecutor's inappropriate use of his peremptory challenges; Lewis argues that he should not have been convicted under section 12034, subdivision (c), as a matter of law; both Washington and Lewis raise challenges concerning the court's rulings as to the scope of the gang expert's testimony; Washington argues that the court also erred in excluding expert evidence regarding gun cartridges; Lewis argues that the court improperly designated count 4 as the principal term; both Washington and Lewis argue that the court inappropriately applied the gang enhancements under section 186.22; Lewis argues that the court should have stayed sentence in count 4 under section 654; Lewis argues that the court erred in imposing the full term for the firearm enhancements under section 12022.53, subdivision (d); and Washington points out a few errors in the abstract of judgment.
Although we reject most of the above arguments, we agree with defendants that the court erred in imposing the 10-year gang enhancements under section 186.22. We also agree that the court must correct certain clerical errors in the abstract of judgment. In all other respects, we affirm the judgment.
2. Factual History
Shortly before 11:00 p.m. on September 6, 2002, Maria Maldonado and her boyfriend, Nelson Sanchez, were sitting on the front porch of her home at 3590 Dwight Street in Riverside. A car, which was initially described as a BMW, stopped in front of the home and the passenger exited the car. The passenger was a young, thin, black male wearing a green Hawaiian shirt.[3] The man asked them where they were from and then yelled, â€
