P. v. Washington CA2/2

Filed 6/7/13 P. v. Washington CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B242566

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA081613) v.

JUSTIN MARCEL WASHINGTON,

Defendant and Appellant.

THE COURT:* Defendant Justin Marcel Washington appeals from the judgment entered following his plea of “no contest” to one count of attempted murder in violation of Penal Code1 sections 664 and 187, subdivision (a). Defendant admitted a gang allegation under section 186.22, subdivision (b)(1)(C) and an allegation under section 1170, subdivision (h)(3), which required him to serve his sentence in state prison due to serious and violent felony convictions. Pursuant to the plea bargain accepted by defendant, the trial court sentenced him to the high term of nine years for the attempted murder and a consecutive term of 10 years for the gang enhancement, for a total sentence of 19 years. The trial

* BOREN, P.J., ASHMANN-GERST, J., CHAVEZ, J. 1 All further references to statutes are to the Penal Code unless stated otherwise.

court granted defendant 306 actual custody days and 46 days of conduct credit (15 percent) for a total of 352 days. (§§ 667.5, subd. (c), 2933.1.) We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an opening brief containing an acknowledgment that they had been unable to find any arguable issues. On January 2, 2013, we advised defendant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On February 4, 2013, we granted defendant an extension of time until February 15, 2013, to file his supplemental brief. No response has been received to date. The facts presented at the preliminary hearing reveal that defendant and his codefendant, Deanthony Davis, confronted Khary Malone at a Gardena park where Malone had gone to play basketball with his cousin and two friends. Defendant shoulder- bumped Malone and asked him, “Where are you from?” Malone replied, “We don’t bang.” Defendant said, “So way [sic] Shotgun Crip.” Davis then came from behind defendant and shot Malone in the face in the area of the left jaw. The bullet entered Malone’s chin and exited below his earlobe. Malone identified defendant and Davis at the preliminary hearing.2 Detective Toshio Hirai testified as a gang expert and was of the opinion that Davis and defendant were members of the Shotgun Crips gang. His opinion was based on prior contacts and discussions with several other gang experts. He testified regarding felony convictions of two other Shotgun Crips gang members. Detective Hirai believed that the instant offense was committed for the benefit of, in association with, or at the direction of the Shotgun Crips. On October 12, 2011, defendant was charged in a first amended information with attempted murder. The information also alleged that: (1) a principal used and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d), (e)); (2) the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)( C)); (3)