P. v. Powell 1/25/05 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A103286

Case Date: 05/11/2005

Preview:Filed 1/25/05 P. v. Powell CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. GREGORY ANTHONY POWELL, Defendant and Appellant. (Solano County Super. Ct. No. VCR161797) A103286

I. INTRODUCTION This is an appeal from appellant Powell's conviction, after a jury trial, of attempted voluntary manslaughter and assault with a deadly weapon. The jury found two charged enhancements true: one for a personal use of a firearm and the other for infliction of great bodily injury. Appellant also admitted the truth of an allegation of two prior felony convictions. He was sentenced to a total prison term of 19 years, six months. He appeals, initially claiming error (1) in admission of the preliminary hearing testimony of the victim, (2) application of Wheeler/Batson principles, (3) an instruction on attempted voluntary manslaughter, and (4) denial of presentence custodial credits. Via a supplemental brief, appellant urges that the court's imposition of the upper terms on one of the counts and one of the enhancements violates the United States Supreme Court's recent ruling in Blakely v. Washington (2004) ___ U.S.___, [124 S.Ct. 2531] (Blakely). We reverse and remand for reconsideration of the sentence imposed (1) in view of Blakely and (2) regarding custody credits. Otherwise we affirm. 1

II. FACTUAL AND PROCEDURAL BACKGROUND1 Starkisha Green was shot and wounded in the parking lot of the Motel 7 in Vallejo at about 7 p.m. on July 5, 2002. She told a Vallejo police officer, who responded to reports of the shooting, that the man who shot her was an African American named "G". Both Green and Melissa Lujan, who had driven Green to the motel, later identified the shooter as appellant from photo lineups. When Lujan's car entered the parking lot of the Motel 7, they encountered a car exiting the parking lot driven by one Nicole Fonseca, with whom Green had had a prior altercation. Appellant was a passenger in Fonseca's car. As the cars pulled alongside each other, Green and Fonseca started arguing, and soon an argument developed between Green and appellant, with Green accusing appellant of stealing some jewelry. As Lujan tried to drive away, Fonseca's car blocked Lujan's car from leaving. Appellant and another African-American male then jumped into the back seat of Lujan's vehicle, whereupon Green tried to get out of the car. While Green was attempting to get out of the vehicle, two shots were fired. Appellant continued to shoot at her as she ran away from the cars. Green was helicoptered to John Muir Hospital in Walnut Creek, where doctors found two bullets in her, one in her stomach and one in her arm. A .22 caliber bullet was removed from Green's stomach. The following day, July 6, 2002, another Vallejo police officer stopped appellant for driving without a license plate. A female was in the car with him. Appellant lacked identification. He said his name was John Lashawn Harris, but did not know his own age. The officer arrested him and, thereafter, found a loaded .22 caliber revolver under the right-front passenger seat. The gun held nine bullets, but had four bullets and four empty casings inside. In the passenger's purse was another single round.

In view of the limited number and nature of the issues appellant raises on appeal, we will detail only those facts relevant to a consideration of those issues. 2

1

On September 19, 2002, the Solano County District Attorney filed an information charging appellant with two counts, the first for attempted murder and the second for assault with a deadly weapon. Both counts included allegations of personal use of a firearm and personal infliction of great bodily injury, as well as an allegation of two prior felony convictions after which appellant had not remained free from prison custody for five years. (Pen. Code,

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