People v. Ward CA1/5

Filed 8/14/14 P. v. Ward CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A138750 v. MARCUS WARD, (Alameda County Super. Ct. No. 1770099B) Defendant and Appellant.

A jury convicted Marcus Ward of first degree murder with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd.(a)(17)(A)) and possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)).1 Ward challenges the sentence imposed, contending that the trial court violated section 654’s prohibition against multiple punishment by imposing a six-year prison term for the firearm possession consecutive to his life sentence without possibility of parole for the murder. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Ward was charged, by information, with murder (§ 187, subd. (a); count one) and possession of a firearm by a felon (former § 12021, subd. (a)(1); count two). Count one alleged that Ward personally and intentionally discharged a firearm, causing great bodily injury and death (former §§ 12022.5, subd. (a), 12022.53, subds. (b)–(d), (g); 12022.7,

1 Undesignated statutory references are to the Penal Code. Former section 12021, subdivision (a) was continued in section 29800, subdivision (a) (added by Stats. 2010, ch. 711, § 6) without substantive change. (Cal. Law Revision Com., com., 51D, Pt. 4 West’s Ann. Pen. Code (2012) foll. § 29800, p. 194.)

1

subd. (a)). The information further alleged a special circumstance that Ward committed the murder while engaged in the commission of a robbery (§ 190.2, subd.(a)(17)(A)) and while on felony probation (§ 1203, subd. (k)). Finally, it was alleged that Ward had suffered two prior convictions and that he had served a prior prison term (§ 667.5, subd. (b)). One conviction was a serious felony (§ 667, subd. (a)(1)) and a prior strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). Prosecution’s Evidence Lashay Goulding’s Testimony Lashay Goulding testified that, in October 2011, she worked as a prostitute and had recently begun working for a new pimp, Michael Schenk. On the morning of October 5, 2011, Goulding met another prostitute, Radajsha Briggs, at a Burger King in Oakland. Later that morning, Goulding and Briggs picked up Gequesha Nolan at a BART station.2 Goulding had met Nolan, who also was a prostitute, three or four weeks earlier. Goulding introduced Nolan to Schenk. The three women and Schenk went to a room at a nearby Motel 6. In the motel room, Schenk was seen counting a thick stack of money. He then made a phone call to arrange renting an apartment. While Schenk was on the phone, Nolan joked with Goulding saying, “ ‘[w]ouldn’t it be funny if he got robbed[?]’ ” Later, Nolan told Goulding how she had “hit licks” before. Goulding understood this to mean Nolan had committed robberies. Nolan also texted Goulding and joked about robbing Schenk. Schenk drove Goulding, Briggs, and Nolan to International Boulevard to work. Goulding and Nolan stayed together. Between 7:00 p.m. and 9:00 p.m., at Nolan’s suggestion, they went to a candlelight vigil. Nolan met Ward, her boyfriend, at the vigil. Goulding saw Nolan talking to Ward and two other men.