People v. Abdul-Malik CA2/8

Filed 2/14/22 P. v. Abdul-Malik CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B306876

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA045631) v.

ZIMBABWE ABDUL-MALIK,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Terry Lee Smerling, Judge. Reversed and remanded with directions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2001, defendant and appellant Zimbabwe Abdul-Malik was charged with murder (Pen. Code, § 187, subd. (a)) and carjacking (§ 215, subd. (a)). Robbery and gang special circumstance allegations were alleged as to the murder count (§ 190.2, subd. (a)(17) & (22)). Firearm use and gang allegations were alleged as to both counts (§ 12022.53, § 186.22). The charges arose from an incident in December 2000, in which defendant and two codefendants confronted the victim while he was parked in his car in the driveway of his mother’s home. An altercation ensued during which the victim was fatally shot. The victim’s car was stolen and found crashed into a pole a short distance away. (People v. Devore (Mar. 21, 2006, B170095) [nonpub. opn.].) The jury found defendant guilty of murder and carjacking. They found not true the special circumstance allegations and the allegations defendant personally used a firearm. The jury found true the gang allegation and the allegation that a principal used a firearm in the commission of the offenses. The trial court sentenced defendant to an indeterminate term of 50 years to life. In 2006, in an unpublished decision, we affirmed defendant’s conviction and ordered correction of the abstract of judgment to reflect defendant’s minimum parole eligibility was 15 years and not 25 years and that the firearm use enhancement was pursuant to Penal Code section 12022.53, subdivision (e)(1). (People v. Devore, supra, B170095.) In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was passed. Penal Code section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)