People v. Bossett CA1/2

Filed 1/6/14 P. v. Bossett CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A136134 v. JOSEPH BOSSETT, (Contra Costa County Super. Ct. No. 51003706) Defendant and Appellant.

On October 10, 2009, Joseph Bossett fired two shots that struck and wounded Rafael Nolen. Bossett also fired in the direction of Elester Shelton, who approached Nolen after he had been shot. Bossett claimed that the shooting of Nolen was in self- defense because Nolen had displayed a gun and threatened to shoot him for being an informer. None of the witnesses saw Nolen with a gun, and no gun was found near him. A jury convicted Bossett on counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd (a))1 and assault with a deadly weapon (§ 245, subd. (a)(2)). On appeal, Bossett seeks reversal of his convictions, arguing that the prosecution failed to disclose material, exculpatory evidence to the defense, in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). We reject Bossett’s argument because the evidence at issue was not material to Bossett’s defense. Bossett also seeks amendment of the abstract of judgment to reflect the fact that his sentence for assault with a deadly weapon was to be served concurrently with his

1 All statutory references are to the Penal Code, unless indicated otherwise.

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sentence for attempted murder. The People agree that the court clearly stated at the sentencing hearing that the two sentences were to be served concurrently and that the abstract of judgment fails to reflect that fact. Accordingly, we order that the abstract of judgment be amended to state that the sentences are to be served concurrently. BACKGROUND I. Procedural Background On April 16, 2010, the People filed an information charging Bossett with one count of premeditated attempted murder (§§ 187, subd. (a), 664, subd (a)) (count one) and one count of assault with a deadly weapon (§ 245, subd. (a)(2)) (count two). Count one was accompanied by the allegation that Bossett intentionally used a firearm in committing the offense. (§ 12022.53, subds. (b), (c), (d).) Count two was accompanied by the allegation that Bossett personally used a firearm in committing the offense. (§ 12022.5, subd. (a)(1).) The information further alleged that: (1) Bossett had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) for attempted voluntary manslaughter (§§ 192, subd. (a), 664); (2) Bossett had a second prior strike conviction for burglary (§§ 459, 460, subd. (a)); and (3) pursuant to section 667, subdivision (a)(1), Bossett’s prior voluntary manslaughter conviction was a serious felony. A jury trial commenced on April 19, 2011. On April 29, the jury returned a verdict, convicting Bossett on both counts and finding the firearm allegations to be true. The jury was unable to reach a verdict on the question of premeditation. On June 15, 2012, the court sentenced Bossett to a term of 67 years to life. The aggregate term on count one was 67 years to life. The aggregate term on count two was 34 years to life, to be served concurrently with the sentence for count one. On June 22, 2012, Bossett filed a timely notice of appeal. II. Factual Background Bossett was a close family friend of Nolen and his wife. On an almost daily basis, he would provide transportation for Nolen and his family. Shelton was Nolen’s cousin and he and Nolen saw each other daily until the shooting. Shelton and Nolen frequented the apartment building at 224 Ohio Avenue in