P. v. Winston

Filed 7/19/06 P. v. Winston 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 for Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed as Modified.

Thomas W. Kielty, 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, Assistant Attorney General, Susan D. Martynec and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Reginald Winston appeals from a judgment sentencing him to 15 years in prison after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)).[1] He contends that (1) the prosecutor committed misconduct under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) by questioning and commenting upon defendant's post-arrest silence; (2) the trial court erred by instructing the jury with CALJIC No. 2.62; (3) the trial court erred by failing to consider letters defendant submitted in support of his motion to dismiss a prior conviction allegation; (4) the trial court erred by failing to sanitize his prior conviction when defendant testified; (5) the trial court erred by denying defendant's request to impeach a prosecution witness with a prior federal conviction; (6) the trial court erred by failing to exclude statements allegedly procured in violation of his Miranda^[2] rights; and (7) his trial counsel provided ineffective assistance. None of these contentions has merit. However, there are two errors in defendant's sentence that must be corrected. The sentence on the felon in possession count must be doubled under the Three Strikes law,[3] and the mandatory court security fee under section 1465.8 must be imposed. Therefore, we order the judgment modified, and affirm the judgment as modified.

BACKGROUND

As soon as Juan Carlos Pineda backed his S.U.V. into a parking space behind the Hampton Inn in Carson late in the evening of November 22, 2003, a man opened the passenger door of the car. The man was wearing a sports jersey over a white T-shirt. The man pointed a gun at Pineda and told him to â€