People v. Forman CA2/8

Filed 11/19/14 P. v. Forman CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B253016

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA092627) v.

MARCUS B. FORMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Richard R. Romero, Judge. Affirmed in part, and remanded with directions.

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

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Marcus Forman was convicted by a jury of second degree robbery (Pen. Code, § 211, count 1)1 and second degree commercial burglary (§ 459; count 2). The jury found true that both crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court found that Forman suffered two prior strike convictions (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)), one of which also qualified as a serious felony (§ 667, subd.(a)), and three prior convictions with a prison term (§ 667.5, subd. (b)). Forman contends the trial court abused its discretion by denying his motion to strike one of his two prior strikes. We remand for other sentencing errors, but otherwise disagree and affirm. FACTS On April 24, 2012, at approximately 9:30 p.m., Forman entered a Rite Aid store, approached an undercover loss prevention officer and asked him where he was from. The officer said he was from “nowhere.” Forman said, “This is Insane Crip Gang.” He then walked to the liquor aisle, placed four bottles of Absolut Vodka in his backpack, and left the store without paying for them. Another loss prevention officer, Anthony Ford, followed Forman. Ford identified himself as a loss prevention officer and asked Forman to return to Rite Aid. Forman said, “I don’t care.” Ford continued to follow Forman. Forman put his backpack down, took a fighting stance, and yelled out his gang name. He then retrieved his backpack and ran down the street. Ford continued after him. Forman put down the back pack and again assumed a fighting stance. Ford attempted to pick up the backpack and Forman punched him in the face, causing him to fall back. A car pulled up, Forman jumped in, and he left. Forman was convicted as charged after trial by jury and sentenced to an aggregate term of 43 years-to-life, computed as follows: on count 1, Forman was sentenced to 25 years-to-life, plus 10 years for the gang allegation and 5 years for the prior serious felony. In addition, Forman received consecutive one-year sentences for each of three prior