People v. Allen

[210]Opinion

LUCAS, P. J. Paul Demetrius Allen appeals from judgment of conviction entered after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and robbery (Pen. Code, § 211). He also petitions for writ of habeas corpus, asserting inadequate assistance of trial counsel. We affirm the conviction and deny the writ petition.

Facts

At 3:30 a.m. on September 25, 1985, Roscoe Williams was driving alone in the area of Saturn Street near Rimpau in Los Angeles, on his way to a friend’s house to buy marijuana. As he drove slowly looking for a particular address, two people ran across the street in front of his car and another person came up to the passenger side of the car. Williams stopped his car, turned and saw a man at the driver’s side window with a shotgun pointed at his face. The man, later identified as appellant, told Williams to get out of the car, which he did. Williams was asked how much money he had. Without answering, he reached into his pocket and took out his money. Alex DeLaney, who had been at the passenger side of the car, came around and took the money out of his hand. When DeLaney told appellant that Williams only had $12, appellant said that was not enough and he was going to shoot Williams. DeLaney moved his hand toward the barrel of the gun; appellant moved the gun away. Then he shot Williams, seriously wounding him in the thigh, hand and wrist.

Five days later, police officers interviewed Williams at the hospital. Williams selected appellant’s photograph from a lineup card as the person who shot him. On a second visit about a month later, the officers showed Williams a folder containing six photographs. Williams picked out Alex DeLaney’s photograph as the person who was present when he was shot.

Appellant was charged in a three-count information with attempted murder (Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm (Pen. Code, §245, subd. (a)(2)), and robbery (Pen. Code, §211), with allegations of personal firearm use (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5) and great bodily injury (Pen. Code, § 12022.7). The jury found him not guilty of attempted murder and guilty of the remaining charges. The firearm use and great bodily injury allegations were found to be true. He was sentenced to the midterm of three years on the assault count, with an additional five years for the enhancements; sentence on the remaining count and enhancements was stayed pursuant to Penal Code section 654.