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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Donald R. Tickle, 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, Supervising Deputy Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.
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Darren Willie appeals from the judgment entered following a jury trial in which he was convicted of second degree murder with the personal use of a firearm that he intentionally discharged, causing death, and possession of a firearm by a convicted felon on January 17, 2004 (counts 1 and 2). Following the verdicts, defendant entered a negotiated plea of guilty to three additional counts of illegal firearm possession (counts 3, 5, and 6) and one count of misdemeanor unlawful use of a driver's license (count 4), all of which crimes occurred on February 25, 2004. At sentencing, the trial court found that defendant had sustained two prior felony convictions under the â€
Description
Defendant appeals from the judgment entered following a jury trial in which he was convicted of second degree murder with the personal use of a firearm that he intentionally discharged, causing death, and possession of a firearm by a convicted felon on January 17, 2004 (counts 1 and 2). Following the verdicts, defendant entered a negotiated plea of guilty to three additional counts of illegal firearm possession (counts 3, 5, and 6) and one count of misdemeanor unlawful use of a driver's license (count 4), all of which crimes occurred on February 25, 2004. At sentencing, the trial court found that defendant had sustained two prior felony convictions under the "Three Strikes" law and sentenced him to 70 years to life for murder (15 years to life, trebled under the Three Strikes law, plus 25 years for the firearm enhancement), with sentence on the remaining convictions to be served concurrently.
Defendant contends that the trial court erred in allowing the case to be filed a third time following two dismissals, that the evidence was insufficient to support his conviction on count 2, that he was unduly prejudiced by evidence introduced in support of a gang allegation (which the jury found not true), that CALJIC No. 5.17 should have been modified, that the trial court failed to provide independent review on his motion for a new trial based on insufficient evidence on counts 1 and 2, and that his motion for a new trial on counts 1 and 2 also should have been granted on the ground of newly discovered evidence. Court find merit in defendant's contentions regarding the third filing of the complaint with respect to count 2 only and in his argument that the trial court failed to provide independent review. Accordingly, court reverse the judgment on count 2 with directions to dismiss that count, reverse the judgment on count 1 with directions to conduct a new hearing on defendant's motion for a new trial, and affirm the judgment on counts 3 through 6.
