P. v. Smith CA2/3

Filed 6/24/13 P. v. Smith CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B240264

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA119283) v.

COLEMAN KENYATTA SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Pat Connolly, Judge. Modified and, as so modified, affirmed. Mark D. Lenenberg, 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 D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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Coleman Kenyatta Smith appeals the judgment entered following his conviction by jury of first degree murder in which he personally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The trial court found Smith had a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a) and sentenced him to a term of 55 years to life in state prison. Smith contends the prosecutor engaged in prejudicial misconduct during argument and defense counsel rendered ineffective assistance in failing to object. We reject these contentions but modify the judgment to reflect imposition of a five-year enhancement pursuant to Penal Code section 667, subdivision (a), rather than section 667.5, subdivision (a). As so modified, the judgment is affirmed. BACKGROUND 1. The evidence adduced at trial. On the evening of July 25, 2011, Duncan Tasevski drove fellow gang members Smith, Gary Sanders and another individual to Smith‟s home on East 87th Place in Los Angeles. Tasevski had known Smith for a few years but was best friends with Sanders. Smith had a bag of clothes when he entered the car. Upon arrival at Smith‟s residence, Smith and Sanders exited the car. Tasevski remained in the car texting on his phone. He heard two or three gunshots and saw muzzle flash, then saw Smith returning to the car with a dark object in his hand. Smith appeared “frantic” and “wired up.” In fear for his life, Tasevski drove from the scene as Smith arrived at the car. At the time of the shooting, Smith‟s mother, Annette Saxton, Smith‟s 12-year-old daughter Keynia Smith, and Keynia‟s mother Kalita Lucas, were in Smith‟s residence. They went outside and saw Sanders slumped against a fence. Saxton testified she has known Sanders “for a long time” and considered him “like my son.” Sanders asked for help, repeatedly said he was dying and told Saxton, “ „Your son shot me.‟ ” While Sanders remained in the front of the residence, Keynia and Lucas saw Smith come from the rear of the building and