People v. Timberlake CA5

Filed 1/6/22 P. v. Timberlake CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F082097 Plaintiff and Respondent, (Super. Ct. No. BF158240A) v.

PAUL EDWARD TIMBERLAKE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Smith, J. and Snauffer, J.

STATEMENT OF APPEALABILITY This appeal is from a judgment after this court’s order remanding the matter in People v. Timberlake (Aug. 22, 2018, F073543 [nonpub. opn.] (Timberlake I)). This appeal finally disposes of all issues between the parties and is authorized by Penal Code1 section 1237, subdivision (b). STATEMENT OF THE CASE As stated by this court in its opinion in Timberlake I, “A jury acquitted appellant Paul Timberlake of first degree murder, but convicted him of the lesser included offense of second degree murder (Pen. Code, § 187, subd. (a); count 1). [Footnote omitted.] It also found him guilty of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2); carrying a loaded firearm as an active street gang member (§ 25850, subd. (c)(3); count 3); and being an active member of a criminal street gang (§ 186.22, subd. (a); count 4). It found not true as to count 1, but true as to count 2, that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1); and found true, as to all counts, personal firearm use enhancements (§§ 12022.5, subd. (a); 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found Timberlake suffered two prior strike convictions (§ 667, subds. (c)-(j)), two prior serious felony convictions (§ 667, subd. (a)(1), and served two prior prison terms (§ 667.5, subd. (b)).” “The trial court sentenced Timberlake to an aggregate term of 65 years to life, consisting of 15 years to life, doubled, for count 1, plus 25 years to life (§ 12022.53, subd. (d), plus two five-year terms (§ 667, subd. (a)). The trial court stayed life terms on counts 2, 3, and 4 pursuant to section 654.” Timberlake appealed and in Timberlake I this court affirmed the judgment, but remanded the matter for the trial court to exercise its newly afforded discretion to strike