P. v. Marshall CA2/2

Filed 5/29/13 P. v. Marshall CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B239874

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA365596) v.

SAMMY MARSHALL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Sammy Marshall (defendant) appeals from the judgment entered after a jury convicted him of attempted first degree murder, in violation of Penal Code1 sections 664 and 187, subdivision (a) (count 1) and second degree robbery in violation of section 211 (count 2). The jury found as to both counts that defendant had personally used a firearm, within the meaning of section 12022.53, subdivision (b), and that he personally discharged that firearm within the meaning of section 12022.53, subdivision (c). After the jury returned its verdicts, a court trial was held on allegations that defendant had suffered two prior strike convictions within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). The trial court found the prior conviction allegations to be true and sentenced defendant to 67 years to life in state prison on count 1 (consisting of 37 years to life, plus 20 years for the firearm enhancement and 10 years pursuant to section 667, subdivision (a)). The court imposed the same sentence for count 2, but stayed the sentence pursuant to section 654. Defendant was accorded 936 days of presentence custody credit. Defendant contends there was insufficient evidence of premeditation and deliberation to support his attempted murder conviction. Substantial evidence supports the conviction, and we therefore affirm the judgment. BACKGROUND Jose Guadalupe Ayala (Ayala) was working as the night watchman at Roscoe’s Chicken and Waffles on Pico Boulevard in Los Angeles on February 9, 2009. At approximately 3:30 a.m., he opened the side door of the restaurant and was confronted by an armed man waiting for him. The man placed a gun to Ayala’s forehead, kicked Ayala, pushed him to the floor, and then beat him. Ayala could not see the man’s face, which was covered by a mask, but he could see that the man was African-American. While Ayala was lying on the ground, the man took Ayala’s watch, cell phone, and necklaces.