People v. Gayles CA2/2

Filed 6/30/16 P. v. Gayles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B262637

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104590) v.

DAVID LAMONT GAYLES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mike Camacho, Judge. Affirmed.

Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent. ******

A jury convicted David Lamont Gayles (defendant) of attempted voluntary manslaughter and assault with a firearm, and the trial court sentenced him to 26 years in state prison. On appeal, defendant argues that the court abused its discretion in denying his motion for a mistrial due to juror misconduct occurring during voir dire. We conclude there was no abuse of discretion, and affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts On the day he was released from prison for robbery, defendant, who is a gang member, twice shot an “affiliate” of a rival gang in a park located between the two gangs’ territories. The gunshots put the victim in the hospital for three months. Defendant told police that he shot the victim in self-defense because the victim was reaching for a gun in his waistband. II. Procedural Background A. Charges The People charged defendant with (1) attempted murder (Pen. Code §§ 187, 1 subd. (a) & 664), and (2) assault with a deadly weapon (§ 245, subd. (a)(2)). As to the attempted murder count, the People alleged that defendant intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subds. (d) & (e)(1).) As to the assault with a deadly weapon, the People alleged that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The People also alleged that both crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The People further alleged that defendant’s 2009 robbery conviction constituted a “strike” under California’s Three Strikes law (§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)), was a prior “serious” or “violent” felony (§ 667, subds. (a)(1) & (d)), and had resulted in a prior prison term (§ 667.5, subd. (b)).