P. v. Holden and Walker

Filed 4/20/06 P. v. Holden and Walker CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed with modifications.

Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Gary Lamar Holden.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Charles E. Walker.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants, Charles Edward Walker and Gary Lamar Holden, appeal from: their convictions for second degree murder (Pen. Code,^[1] § 187, subd. (a)); the jurors' findings that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and the finding that Mr. Walker personally used and discharged a firearm causing death. (§ 12022.53, subds. (b), (c), (d), (e)(1).) The parties raise individually or collectively the following contentions: the evidence was insufficient to support Mr. Holden's second degree murder conviction; there was instructional error; opinion testimony concerning the street gang allegation was incorrectly admitted; Mr. Walker's counsel was constitutionally ineffective; there was prosecutorial misconduct; and there was sentencing error. We affirm with minor sentencing modifications.

II. FACTUAL BACKGROUND

A. The Eyewitnesses

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Charlie Watson was present at Normandie Avenue and Century Boulevard on January 30, 2004, when Dante Tatum was shot. Mr. Watson was with Mr. Walker and Mr. Holden. Mr. Watson was left-handed. Mr. Holden had admitted that he was a member of the local gang. Mr. Watson denied being a member of the gang. But Mr. Watson's uncle, Dino Wood, was a gang member. Mr. Watson was present at the apartment on 99th Street sometime before 10 p.m. prior to the shooting on January 30, 2004. Also present were Mr. Walker, Mr. Holden, Michael and Jamel Jiles (Mr. Jiles), Mr. Wood, and Fredrick Lomax. The Jiles brothers were cousins of Mr. Walker. The apartment was in the territory of the local gang. At some point, Mr. Holden left the apartment. Later, Mr. Watson, Mr. Walker, and the Jiles brothers went to a gas station at Normandie and Century Boulevards to look for Mr. Holden. Mr. Watson saw Mr. Holden, across the street near a taco stand and the bus stop. Another tall Black man was also at the bus stop. Mr. Holden returned to the gas station. Mr. Watson spoke briefly with Mr. Holden. Mr. Holden told Mr. Watson to walk across the street. Mr. Holden said, â€