People v. Gardner CA2/4

Filed 1/7/14 P. v. Gardner CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B245426

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA384242) v.

JEROME LAMONT GARDNER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jerome Lamont Gardner appeals from a judgment entered following a jury trial in which he was convicted of voluntary manslaughter. (Pen. Code, § 192, 1 subd. (a).) He argues the trial court abused its discretion in sentencing him to the upper term of 11 years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY Appellant began dating Jasione Thomas in June 2009, and fathered her child sometime thereafter. By April 2011, he was expecting another child with Emily Herron, and did not want Ms. Thomas to learn of his affair. To resolve his dilemma, appellant said he wanted to terminate Ms. Herron’s pregnancy by having somebody fight with her. On April 28, 2011, appellant drove Ms. Thomas, Lashanique Hulse, David Johnson, and others to his cousin’s house to drop off his child. Mr. Johnson brought a gun with him after appellant told him to do so. While in the car, appellant received a phone call from Ms. Herron, who said she wanted his “baby mama” to meet her on Coco Avenue for a fight. Ms. Thomas knew she was on her way to fight Ms. Herron. Upon arriving, everybody exited the car, and Ms. Thomas and Ms. Herron exchanged punches. Appellant told Ms. Thomas to “[g]et that bitch.” He attempted to intervene once it was clear that Ms. Herron was getting the best of the fight. As the fight continued, Greg Horn, a security guard at a nearby high school, was driving on an adjacent street. After somebody flagged him down, Mr. Horn exited his car, walked toward appellant, and asked what was going on. Appellant responded using 2 gang jargon, such as “Fuck BPS. This is 40s.” Ms. Herron, testifying for the prosecution, said that Mr. Horn made gestures indicating he wanted to fight. Ms. Hulse, also a witness for the prosecution, testified that Mr. Horn simply placed his hands on his