P. v. Jake

Filed 4/5/06 P. v. Jake 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Tricia Ann Bigelow, Judge. Affirmed with directions.

H. Clay Jacke, II, 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, and Jaime L. Fuster and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

PROCEDURAL BACKGROUND

On February 5, 2002, an amended information was filed charging Caesar Duncan, Bryant Filer and Duane Underwood with the murder of Buford Bates in 2000 (Pen. Code,^[1] § 187, subd. (a)), and with conspiracy to murder Bates (§ 182, subd. (a)(1)). The information alleged that this murder was committed in connection with gang activity. (§ 186.22, subd. (b)(1).) It also charged Sandro Barmet with being an accessory after the fact to Bates's murder (§ 32), and appellant Tony Jake with attempting to dissuade Crystal Bates from being a witness at trial, and making criminal threats to Crystal, Geraldine, and Nina Bates (§§ 136.1, subd. (a)(2), 422).^[2]

On October 22, 2002, the trial court severed the trial of Filer and Underwood from that of appellant, Barmet, and Duncan. Prior to trial, the charges against Barmet were adjudicated pursuant to a plea that he entered.

Trial by jury of appellant and Duncan began on January 7, 2003. After a mistrial was declared as to appellant, the jury found Duncan guilty with respect to the murder of Bates. In the separate trial of Filer and Underwood, the jury found Filer guilty of Bates's murder, and it acquitted Underwood on all charges.

Informations were subsequently filed charging appellant with, inter alia, the murder of Bates. Appellant pleaded not guilty. Trial by jury began on February 23, 2004.

During the course of the trial, an amended information was filed charging appellant in count 1 with Bates's murder (§§ 187, subd. (a), 190.2, subd. (a)); in count 2 with conspiracy to commit murder (§ 182, subd. (a)(1)); in count 3 with possession of a firearm by a felon (§ 12021, subd. (a)(1)); and in count 4 with attempting to dissuade a witness, namely, Crystal Bates (§§ 136.1, subd. (a)(2)).^[3] Under count 1, the information alleged that a principal had personally used or discharged a handgun. (§ 12022.53, subds. (c), (d), (e)(1).)

The information also alleged under counts 1 and 2 that the pertinent offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist criminal gang conduct. (§ 186.22, subd. (b)(1).) In addition, it alleged that appellant had suffered nine prior convictions within the meaning of section 667, subdivision (a)(1), and 11 prior convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

On March 23, 2004, the jury found appellant guilty as charged, and found the gang and gun use allegations to be true. Following a bench trial, the trial court determined that appellant had suffered six convictions under section 667, subdivision (a)(1), and eight prior convictions under the Three Strikes law. On May 21, 2004, the trial court sentenced appellant to imprisonment for life without the possibility of parole, plus 50 years to life, plus a determinate term of 30 years. This appeal followed.

FACTS

A. Prosecution Evidence

1. Background

Appellant is listed in a statewide data base as a member of the Rollin' 30 Harlem Crips, a street gang. Appellant once told Underwood that he was with â€