P. v. Fisher CA2/8

Filed 6/10/13 P. v. Fisher CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B241270

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA364477) v.

AJANI S. FISHER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed.

Maureen L. Fox, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, and Tita Nguyen, Deputy Attorney General, for Plaintiff and Respondent. ____________________

Defendant Ajani Salim Fisher was charged by information with one count of murder (Pen. Code, § 187, subd. (a)),1 with special allegations that his victim was over 60 years old (§ 1203.09, subd. (f)). The jury acquitted defendant of murder, but convicted him of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)) and found the special allegation to be true. At sentencing, the trial court denied probation and sentenced defendant to the high term of 11 years in state prison. On appeal, defendant contends the trial court abused its discretion when it imposed the high term, reasoning that mitigating factors outweighed the factors in aggravation. He also contends the error amounts to a violation of his federal due process rights. Respondent maintains any error was waived when defendant failed to object at the sentencing hearing. We do not find waiver, but we conclude the trial court did not abuse its discretion. We also reject defendant‟s attempt to cast his claim of sentencing error as a federal due process claim. BACKGROUND On November 9, 2009, defendant‟s wife, Taneshia Turner, and two children were at the Saki Liquor store on West Jefferson Boulevard in Los Angeles. Turner often frequented the store, staying for 30 or 40 minutes at a time to play the scratch lottery. The store was equipped with cameras, and a video of that day‟s events, along with a transcription, were shown to the jury. Store clerk, Yongwon Lee, asked Turner why she had been in the store for so long. Turner responded, “Excuse me. Don‟t f------ talk to me like that. Do you understand? I‟ll stand here as long as I‟m buying s---.” Lee said, “Watch your f------ mouth, you lady, okay?” Turner told Lee to “watch [his] mouth.” She asked for the store manager, Connie Chang, who was away but returned to the store later that day. Turner then asked Lee for his name. Lee told Turner to leave, and Turner told him she would not leave, and he could call the police. The two continued to argue, culminating in Lee again telling Turner to leave, that she was a “b----,” and to “suck [his] d----.” Turner eventually left.