People v. McCliman CA3

Filed 4/23/14 P. v. McCliman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C073225

Plaintiff and Respondent, (Super. Ct. No. SF118124A)

v.

MARCUS MCCLIMAN,

Defendant and Appellant.

Defendant Marcus McCliman stabbed John Joseph Lewis (JJ) (because John Joseph Lewis was referred to as JJ throughout the trial, and because another witness bears the last name of Lewis, to avoid possible confusion we refer to the former as JJ in this opinion) several times in the upper body during a street fight between the two outside a bar in Stockton. JJ withdrew from the fight and was helped by friends into a car. As JJ lay helpless in the car, defendant, who still held the knife but claimed he did not use it to

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further stab JJ, ran to the car, leaned in through the window and struck JJ several times before the car could drive off. JJ died from a stab wound to the heart. Defendant and codefendants Dorjan Daniels and Djuane Nunley were each charged with murder (Pen. Code, § 187, subd. (a); unless otherwise stated, statutory references that follow are to the Penal Code), attempted murder (§§ 187, subd. (a), 664), and street terrorism (§ 186.22, subd. (a)). Defendant was additionally charged with personal use of a knife in the killing. (§ 12022, subd. (b)(1).) A jury acquitted defendant and the codefendants of murder and attempted murder, but convicted only defendant of voluntary manslaughter. (§ 192, subd. (a).) The jury also found the knife use allegation true. Defendant was sentenced to state prison for 12 years, consisting of the upper term of 11 years for the voluntary manslaughter plus one year for the weapon use. On appeal, defendant contends the trial court prejudicially erred when it based its finding of aggravation on its belief that defendant inflicted the fatal stab wound while JJ lay defenseless in the car rather than inflicting it during the street fight. Defendant further argues that if we conclude the error was forfeited because of defense counsel’s failure to call the error to the court’s attention at sentencing, then defendant received ineffective assistance of counsel. We conclude that in the circumstances of this case, it is immaterial whether defendant inflicted the fatal wound while JJ was in the car or during the fight on the street. FACTS A. Prosecution’s Evidence On August 5, 2011, JJ was at Chivita’s Salsa and Sports Bar & Grill (Chivitas) in Stockton with several friends, including Ashley Jones, Candra Taylor, Armahd Lewis, and Aaron Phillips. Defendant and codefendants Nunley and Daniels were also in the bar and were throwing gang signs. When the bar closed, gunfire unrelated to any activity by the parties or witnesses in the present appeal was heard from down the street, causing the bar patrons to hurry to leave the area.