People v. Jones CA6

Filed 7/28/15 P. v. Jones CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040590 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. E1007866)

v.

TOMMY AUGMON JONES,

Defendant and Appellant.

STATEMENT OF THE CASE A jury convicted defendant Tommy Augmon Jones of attempted murder (Pen. Code, §§ 664/187) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The jury found the following allegations to be true: defendant personally and intentionally discharged a firearm causing great bodily injury during the commission of the attempted murder (Pen. Code, § 12022.53, subd. (d)), defendant personally inflicted great bodily injury during the commission of the attempted murder (Pen. Code, § 12022.7, subd. (a)), defendant personally used a handgun during the commission of the assault with a firearm (Pen. Code, § 12022.5, subd. (a)), and defendant personally inflicted great bodily injury during the commission of the assault with a firearm (Pen. Code, § 12022.7, subd. (a)). The jury found not true an allegation that the attempted murder was premeditated. The jury acquitted defendant of a second count of assault with a firearm.

The trial court sentenced defendant to a total prison term of 30 years to life, as follows: the low term of five years for the attempted murder and a consecutive term of 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancement. The trial court stayed the sentences for the assault with a firearm and the remaining enhancements. Defendant now appeals from the judgment of conviction. On appeal, defendant contends that his trial counsel rendered ineffective assistance in failing to impeach the victim with a 2001 finding that the victim was not guilty of battery by reason of insanity. Defendant also contends that his sentence constitutes cruel and unusual punishment. As set forth below, we will affirm. STATEMENT OF THE FACTS At approximately 2:00 a.m. on November 11, 2010, Roger Shorter was involved in an argument with defendant and several other men outside of the Brass Rail, a Sunnyvale nightclub. Shorter testified that he was trying to defuse the situation. Shorter spoke with defendant and asked defendant, “Are we cool?” Defendant replied, “No, it ain’t cool.” Shorter walked away from defendant. Shorter spoke with a friend, and then he heard four gunshots fired in “rapid” succession. A bullet struck Shorter’s leg, leaving an entry wound and exit wound and causing permanent damage to the leg. Shorter testified that he did not see the person who shot him. Brandy Millner worked as a dancer at the Brass Rail during the early morning hours on November 11, 2010. While Millner was working, she spoke with a man named “Wayne.” She gave “Wayne” her cell phone number, and “Wayne” called her while she was working. Millner exited the Brass Rail around 2:00 a.m., and she saw “Wayne” pull out a handgun, “stick his arm straight up,” and fire the handgun “in the air.” Millner ran and hid behind a car. Approximately 30 seconds after she saw “Wayne” fire the handgun into the air, she heard three to five more gunshots fired in quick succession. Millner did