People v. Harnish CA2/4

Filed 7/20/16 P. v. Harnish CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B263412

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA092007) v.

DARRYL EUGENE HARNISH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed. John Lanahan, 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, Assistant Attorney General, Jonathan J. Kline and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Darryl Eugene Harnish of first degree murder (Pen. Code, § 187, subd. (a); count 1),1 attempted murder of a peace officer (§§ 667/187, subd. (a); count 2), and assault on a peace officer with a semi- automatic firearm (§ 245, subd. (d)(2); count 3). The jury found true in each count certain firearm use allegations (count 1, § 12022.53 subd. (d) (discharge causing death); counts 2 and 3, § 12022.53, subd. (c) (intentional discharge)). The trial court sentenced defendant to a total term of 85 years to life. He appeals from the judgment of conviction, raising one issue: that the prosecutor committed misconduct in his rebuttal argument by saying that this was not a capital case. We conclude that the claim was forfeited by a failure to object, and, in the alternative, is meritless. We therefore affirm the judgment.

BACKGROUND Prosecution Evidence On April 19, 2012, around midnight, Darryl Brown and Terry Alexander were at a bus stop bench at Pacific Avenue and Pacific Coast Highway in Long Beach. From across the street at a Mobil gas station, defendant (who is Caucasian) yelled racial slurs and said “I’ll kill all you motherfuckers.” Alexander rode his bicycle across the street. As Alexander approached, defendant pulled out a gun and shot him twice. Alexander, fatally wounded, fell near the gas pumps. Long Beach Police Officer Arthur Vega heard the gunshots and drove to the scene. He saw Alexander’s wounded body at the gas station and defendant walking north on Pacific Avenue. Officer Vega drove toward defendant, and shined his search light at him. Defendant then pulled out a gun and fired twice,