People v. King CA5

Filed 7/23/14 P. v. King CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F065497 Plaintiff and Respondent, (Super. Ct. No. MF009586B) v.

SCOTT CLIFFORD KING, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

The jury found Scott Clifford King and Eurie Brim III participated in the armed robbery of Christopher Barnett. King was convicted of robbery, assault with a firearm, and accessory after the fact. King argues there was insufficient evidence to support the accessory count, and a firearm enhancement pursuant to Penal Code section 12022, subdivision (a)(1)1 was impermissibly imposed because use of a firearm was an element of the crime of assault with a firearm. We agree there was no evidence that anything King did after the robbery aided Brim or was intended to benefit Brim. We also agree, and the People concede, the firearm enhancement was improperly imposed. Accordingly, we will reverse the accessory conviction and vacate the firearm enhancement. FACTUAL AND PROCEDURAL SUMMARY The Information The information charged King with second degree robbery (§§ 211, 212.5, subd. (c)), assault with a firearm (§ 245, subd. (a)(2)), and accessory to a felony (§ 32). The information also alleged the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C) (counts 1, 2, and 4), a principal was armed with a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1) (count 1), and a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) (count 2). The Testimony Barnett arrived at a friend’s house to have work performed on his vehicle. He was about to leave the house when a vehicle pulled in behind his. Brim exited this vehicle and approached the house. Barnett also saw King sitting in the passenger’s seat of the vehicle with a green bandana over his face.2 Barnett became suspicious so he locked the front door of the house and went to the back door in an attempt to escape. Brim was