People v. Baptist CA2/6

Filed 9/21/16 P. v. Baptist CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B264681 (Super. Ct. No. BA402709) Plaintiff and Respondent, (Los Angeles County)

v.

JHAMAR L. BAPTIST,

Defendant and Appellant.

A jury convicted Jhamar L. Baptist of attempted murder (Pen. Code, §§ 187, subd. (a), 664),1 assault with a firearm (§ 245, subd. (a)(2)), possession of a firearm by a felon (§ 29800, subd. (a)(1)), and possession of ammunition (§ 30305, subd. (a)(1)). The jury found true allegations that he committed the attempted murder willfully, deliberately, and with premeditation (§ 664, subd. (a)), personally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). He admitted prior prison term and strike allegations. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (c).) The trial court sentenced him to life in prison with a minimum of 14 years for the attempted murder plus 25 years to life for the gun use enhancement and five years for the prior serious felony

1 All further statutory references are to the Penal Code unless otherwise stated.

conviction. The court stayed punishment on the remaining counts and enhancements. (§ 654.) It awarded him 1,139 days of actual custody credit and no conduct credit. Baptist contends that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to request a pinpoint instruction on heat of passion. In addition, he contends, and respondent concedes, that he is entitled to conduct credits. Appellant was convicted of violent felonies limiting his credits to 15 percent of the actual time served. (§ 2933.1, subd. (a).) We therefore direct that the abstract of judgment be amended to reflect that appellant be awarded an additional 170 days of custody credits. FACTS Prosecution Evidence Armando Zelaya, Andres Ortiz, and Jorge Sanchez drove to Sammy’s liquor store one evening to buy beer. Zelaya was unfamiliar with the neighborhood. He had consumed two or three beers but was not “buzzed.” Zelaya and his companions walked into the store. Baptist entered after them. As Zelaya was standing in line to purchase beer, it appeared to him that Baptist “bumped” Ortiz. Baptist said, “Who the fuck are you?” Ortiz responded, “Who the fuck are you? What the fuck?” Zelaya walked over to them and lifted up his arm. He was “trying to clear some space between [the two of them] and [him]self.” Zelaya told Baptist to back up. They exchanged “vulgarities,” “cussing each other out.” Sanchez tried to pull Zelaya back. Sanchez told Baptist to “just relax.” Baptist said, “Fuck you. Don’t tell me to relax . . . .” The exchange “got more intense.” Zelaya, Ortiz, and Sanchez all exchanged “profanities” with Baptist but not “fighting or threatening words.” Baptist walked out of the store. He said “he would be back” and “made a sign of a gun.” Zelaya set down the beer he was holding, and he and his companions also walked out the store. They followed Baptist. Zelaya “was afraid [Baptist] might have something in his car or nearby [with which he] would . . . come back and attack [them].” Zelaya wanted “[t]o make sure [they] didn’t get ambushed from behind.”