P. v. Miller CA2/1

Filed 7/25/13 P. v. Miller CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B244228

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA054832) v.

ULYSSES GORDON MILLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden A. Zacky, Judge. Affirmed with directions. Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

On October 13, 2011, Andre Fradiue was at his residence with several acquaintances, including someone named Rico and defendant and appellant Ulysses Miller. Miller and Rico got into an argument. After Miller took out a gun and put it on a table Fradiue told him he had to leave because he did not want a gun in his house. Fradiue and Miller went outside, where they “exchanged a couple of words” about Miller pulling his gun out on people, and which of them was “tripping.” Miller, who had taken the gun outside with him, became upset. Miller and Fradiue were face-to-face, about seven feet apart from one another. Fradiue was not armed. Miller pointed his gun at Fradiue. Believing he could talk him down, Fradiue moved toward Miller telling him he shouldn’t be tripping and asking why he was pointing a gun at people. Miller said he was going to get his other gun and come back and kill everybody. Miller shot Fradiue in the jaw and shoulder. Miller then told Fradiue he “knew [he] was a bitch,” said he was going to get his “9,” and kill everyone and ran away. Miller’s gun was double-barreled, with one barrel stacked on top of the other. Both barrels fired at the same time. A bullet from the top barrel hit Fradiue’s jaw, and one from the bottom barrel hit him in the shoulder. Evidence of Miller’s affiliation with the “Goons,” a criminal street gang in Lancaster, was presented in support of gang special allegations, as set forth below. Los Angeles Sheriff’s Department Deputy Sheriff Welle and Detective Chung testified as experts that Miller, also known as “Shawnie” or “Deshawn” Miller, is a member of a criminal street gang and committed the crimes at issue to benefit the gang. Deputy Welle’s partner had located a video with Miller in it in which Miller associated himself with a criminal street gang in the Antelope Valley. That video was uploaded to You Tube two weeks after the shooting at issue here. Deputy Welle testified that the Goons was a criminal street gang, and described the Goon gang’s common logo and primary activities. He testified that Miller was a member of the Goons based on his admissions of membership in that gang in two videos. Deputy Welle also testified that the offense in this case was committed because of disrespect shown to Miller, an offense that benefited the gang. Miller, who was 19 years old at the time of trial, testified on his own behalf. He had performed gangster rap since he was a kid and had been making music videos since he was