P. v. Smith CA2/3

Filed 5/13/13 P. v. Smith CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B245432

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA070331) v.

JAMES ROGERS SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Candace Beason, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant, James Rogers Smith, guilty of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664 & 187, subd. (a)), committed for the benefit of, at the direction of or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and during which he personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (c)), possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) and evading a police officer with a willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced Smith to a term of 37 years-to-life in prison. Smith appealed from the judgment and filed a petition for writ of habeas corpus. This court consolidated the petition with the appeal and, in an opinion filed April 11, 2011 (People v. Smith (B217167, B226570) [nonpub. opn.]), determined that the trial court‟s failure to properly instruct the jury on the alleged gang allegation “require[d] reversal and remand on that ground only.” With regard to Smith‟s remaining contentions, this court held there was no error or that any error which occurred had been harmless. On remand, the trial court noted that this court had reversed the gang allegation and indicated that, under the circumstances, sentence would not be imposed “in that regard.” The trial court, however, imposed a term of 37 years in prison. Smith‟s counsel filed a motion for reconsideration of the sentence and the trial court granted it. At the second resentencing, held on October 10, 2012, the trial court imposed a total term of 27 years-to-life in prison. We affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts.1 At approximately 4:00 a.m. on July 13, 2007, Ruben Wardlaw, a member of the Pasadena Denver Lane Bloods gang, was standing outside the Community Arms Apartments on Orange Grove in Pasadena. Wardlaw was wearing burgundy colored shoes and, although it was covered by his white shirt, a red belt. A white Chevrolet