PEOPLE v. LOVE

Nos. D071181, D072067.

THE PEOPLE, Plaintiff and Respondent, v. TYRUS FORD LOVE, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

HUFFMAN, Acting P. J.

A jury convicted Tyrus Ford Love of one count of attempted murder (Pen. Code,1 §§ 664, 187, subd. (a); count 1) and one count of assault with a firearm (§ 245, subd. (a)(2); count 2). The jury also found true several allegations as to the two counts. The jury found as to count 1 that Love (1) inflicted great bodily injury (§ 12022.7, subd. (a)); (2) Love personally and intentionally discharged a handgun causing great bodily injury (§ 12022.53, subds. (b)-(d)); and (3) Love committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). With regard to count 2, the jury found (1) Love personally used a handgun (§ 12022.5, subd. (a)); (2) personally inflicted great bodily injury under section 12022.55; and (3) committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court found true two serious/violent felony prior convictions (§ 667, subds. (b)-(i)).

The court sentenced Love to an indeterminate term of 70 years to life.

Love appealed his convictions and sentence. In an unpublished opinion filed March 3, 2016, this court affirmed the convictions and true findings, but vacated the sentence and ordered a hearing on whether the trial court should strike one or more of the serious/violent felony priors. (People v. Love (Mar. 3, 2016, D069447) [nonpub. opn.].)

On remand the trial court appointed new counsel, ordered briefing and held a hearing on whether to grant Love's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied the motion to strike at least one of the prior convictions. The court again sentenced Love to a term of 70 years to life. Love appeals from the newly imposed sentence.2

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has not been able to identify any reasonably arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Love the opportunity to file his own brief on appeal, but he has not responded.

STATEMENT OF FACTS

The facts of the offenses have been fully set forth in our prior opinion. We do not need to repeat them here. We include a sufficient portion of the facts to establish the background for the review of the second sentencing proceeding.

On the evening of April 30, 2013, Love and his friends Reginald Malone and Elnora Jamison, who had all known each other for many years, were hanging out at the apartment complex where Love and Malone lived. Around dinner time, Jamison told Malone they needed to get food for their children, who were at home at Jamison's apartment in another nearby apartment complex. Neither Jamison nor Malone had a car, so Love agreed to drive them to a nearby pizza place. Malone rode in the front passenger seat and Jamison rode in the back. When they got to the restaurant, Jamison went inside to pick up the pizza, returned to the car, and Love drove them to Jamison's apartment.

Love pulled into the apartment complex and stopped in front of Jamison's first floor apartment. Jamison got out of the car with the pizza and went into her apartment. Corey Donald and two other men were sitting nearby, at the top of a staircase leading to Donald's second-story apartment above Jamison's apartment. Donald testified that after Jamison got out of Love's car, he heard someone from the car make disrespectful statements to him and his companions.3 Donald testified he heard one of the men yell out "bitch ass, nigga, fuck boy," "bitch made," or "punk ass mark."

Donald and the two other men responded by walking down the stairs towards Love's car. As Donald walked down the stairs, Love drove away from him towards the street, and then reversed back toward Donald. Donald and his friends reached the parking lot and seconds later Donald saw gunfire come from the driver's side window of Love's car. Donald and other witnesses heard five or six gunshots fired. Donald and his two companions turned and ran back up the stairs. Before Donald reached the staircase he was shot in the buttocks. Donald testified that he did not see the individual that fired the shots or the passenger in the car, but he was able to identify Love's car.

Malone also gave an account of the incident. He testified there were seven or more young males hanging out at the top of the staircase with Donald. Malone saw the men pointing at the car he was in with Love and testified that it "looked like they had a problem." Malone stated that after Love turned the car around to pull out of the apartment complex, three or four of the men came running down the stairs toward the car. Malone testified that as Donald ran down the staircase Donald said "What the hell are you looking at, Cuz."

As Donald and his companions moved toward the car, Malone recalled Love saying "these niggas running up on the car." Malone testified "it was a scared moment . . . they were running up on the car to come after us." Malone said he looked over at Love and saw him shooting backwards and over his shoulder out of the window as he drove out of the parking lot. Malone then saw Love put the gun down on the floor of the car as Love drove back to their apartment complex. Malone stated he was angry with Love for shooting towards the apartment where his children were. As a result, the two men got into an altercation that was witnessed by other residents. The men eventually separated back to their own apartments. The following morning Malone went back to Jamison's apartment and spoke with Donald's girlfriend. Malone told her he was not involved in the incident and did not want any part of retaliation. Malone testified he knew Donald to be a gang member.

Jamison testified that she knew Love to be a gang member and that he had a "high rep" for being "hard in the streets." Rialto Police Officer Gregory Marquez and San Bernardino County Sheriff's Department Deputy Eric Stoll testified as gang experts. Both officers testified Love was a member of a small Rialto gang known as Noe Luv. The officers identified Love as a member of the gang based on his extensive array of gang-related tattoos.4 Noe Luv has 25-30 active members and, according to Marquez, is known to be hostile to all other area gangs. Stoll also testified Noe Luv is a notoriously violent gang and its members are known as willing to confront anyone that challenges them, regardless of whether the challenger is a gang member. Marquez gave details about four prior offenses for which other Noe Luv members had been convicted.

With respect to Love's alleged crime, Marquez testified that Love's statement that Donald was a "mark" meant that Donald was marked for a bullet and that Love was telling Donald that he was "going to get shot." Marquez testified the statement was "a warning almost, mark ass bitch, you're wanted" and that in gang subculture the term is used to "label someone who has got a hit out on them." Stoll asserted that whenever a gang member possesses a firearm the reputation of the member and of the gang is enhanced because other gang members and rival gangs know to fear that member. Both experts testified that Love's alleged crimes were done in association with the Noe Luv gang and to benefit the gang. Stoll asserted Love benefited personally from the crime because he will "be looked at as a member that's willing to take care of business, that's not soft, and is willing to commit violent crimes on behalf of the gang."

DISCUSSION

As we have noted, appellate counsel has not identified any arguable issues for reversal on appeal. In compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified one possible, but not arguable issue for reversal on appeal:

Whether the trial court abused its discretion in denying Love's motion under Romero to strike at least one of the serious/violent felony prior convictions.

We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any arguable issue for reversal on appeal. Competent counsel has represented Love on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, J. and IRION, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise specified.
2. Love originally filed a notice of appeal in September 2016. On January 23, 2017, we deemed the notice premature and remanded the case back to the trial court. We have since consolidated the two appeals under case number D071181.
3. Donald could not be located for trial and the court found he was unavailable to testify. As a result, his preliminary hearing testimony was read for the jury.
4. Stoll also stated his opinion was based on Love's admission to a jail intake classification deputy that he was a member of a gang. The classification deputy, Mark Reynoso, was also called as a witness and testified that during the booking process Love told Reynoso he was a member of the Noe Luv gang and that he was not a dropout (i.e., former member) of the gang.

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