P. v. Newman

Filed 5/17/06 P. v. Newman CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael M. Johnson, Judge. Affirmed.

Irma Castillo, 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, Marc E. Turchin and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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Terry Lamont Newman appeals from the judgment entered after a jury convicted him of two counts of attempted murder, one count of mayhem and one count of possession of a firearm by a felon. Newman contends the trial court committed prejudicial error by allowing one of the attempted murder victims to be present in the courtroom despite the fact the defense had agreed to stipulate to his injuries and the court had determined he was incompetent to testify and his defense counsel provided ineffective assistance by failing to object to the prosecutor's questions to Newman on cross-examination relating to his drug dealing. Newman also contends his mayhem conviction cannot stand because the jury may have based its guilty verdict on an improper theory of the commission of the crime. As to his sentence, Newman asserts the duplicative firearm enhancements under Penal Code section 12022.53[1] should have been stricken rather than imposed and stayed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Newman was charged by amended information with three counts of willful, deliberate and premeditated attempted murder (§§ 664, 187, subd. (a)) (counts 1, 2 and 3), two counts of mayhem (§ 203) (counts 5 and 6) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 4). As to the attempted murder charges in counts 1 and 2 and the mayhem offenses in counts 5 and 6, the amended information specially alleged Newman had personally and intentionally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d). With respect to the attempted murder charge in count 3, the amended information specially alleged firearm enhancements under section 12022.53, subdivisions (b) and (c).[2]

2. Summary of the Evidence Presented at Trial

a. The People's evidence

About 1:30 a.m. on January 4, 2004 Newman went to the door of Brenda Reed's apartment on South Normandie Avenue in Los Angeles, where Reed was having a party with her upstairs neighbor Shawnda Muckleroy. Newman, who knew Muckleroy because he and his wife lived in the apartment building next door, demanded to speak to Muckleroy. Newman and Muckleroy engaged in a heated argument regarding a confrontation that had occurred the previous afternoon between Muckleroy and her cousin Kim Dobard and Newman's wife. Newman was angry, screaming and using threatening language, and would not calm down.

During the argument, Muckleroy's 16-year-old daughter P. came to assist her mother and yelled at Newman, who responded by grabbing P.'s neck and pushing her against a wall. When one of the male guests at the party tried to push Newman away, Newman punched him in the jaw. Four or five male guests then dragged Newman away from the apartment toward the street and beat and kicked him. P. hit Newman repeatedly with a chair. At the end of the brawl Newman lay on the ground with a pool of blood on his stomach. Several people, believing Newman was badly hurt, perhaps even dead, decided to call 911.

Newman staggered to his feet, reached for a gun in his waistband and pointed it in the air, saying â€