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The People v. Donnell Boyce

December 17, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONNELL BOYCE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F00503)

The opinion of the court was delivered by: Mauro , J.

P. v. Boyce

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Donnell Boyce of second degree robbery, grossly negligent discharge of a firearm, possession of a firearm by a convicted felon, and assault with a semiautomatic firearm. The trial court denied defendant's motion for a new trial and sentenced him to 41 years in prison.

Defendant contends (1) the trial court erred in denying his request to instruct the jury with CALCRIM No. 306 [untimely disclosure of evidence], and (2) his trial counsel rendered ineffective assistance in connection with the motion for a new trial.

We conclude (1) the trial court did not err in declining to instruct the jury regarding the prosecutor's late disclosure of a gunshot residue report because the report was disclosed a week before trial, the trial court offered to continue the trial, and the late disclosure had no effect on the trial; and (2) defendant's claim of ineffective assistance lacks merit because he has failed to show prejudice.

We will affirm the judgment.

BACKGROUND

Jose Vazquez and his nephew Teodro Montalvo Escoto (Montalvo) went to a gas station and liquor store in Sacramento. Vazquez was carrying between $800 and $900 on him. As Vazquez returned to his truck with the beer he purchased, a young person struck him in the face, knocking Vazquez down. The person took Vazquez's telephone, wallet and money. Additional young men joined the assault, hitting and kicking Vazquez while he was on the ground. Another person pointed a gun at Montalvo, demanded Montalvo's money and took Montalvo's wallet.

When the assailants left, the robber with the gun fired it into the air. Montalvo ran into the store and the gunman fired another shot.

Theron Jiles was at the gas station and heard several shots fired. He looked up and saw a man walking down the street yelling and shooting into the air. Jiles could see the height and build of the shooter, but not his face. The shooter was tall, wore baggy pants and a dark "hoodie," and wore his hair in dreadlocks. The shooter fired more shots as he walked down the street.

Private security officer Casey Council was in the vicinity and heard the gunfire. Council drove slowly, with no lights on, in the direction of the shots and eventually saw some people "scattering at a jogging pace." As he reached the area of the gas station, he heard more shots. Still concealed, Council saw a group, including defendant, walking toward him. Defendant fired five or six more shots as he continued to walk.

Council radioed for assistance and then illuminated defendant with his car-mounted spotlight. Council saw a semiautomatic handgun in defendant's hand. Defendant fled into a field and ultimately tried to hide next to a building. Council approached him and ordered him to raise his hands. Defendant no longer had the gun in his hand. By that time sheriff's deputies arrived and took defendant into custody. The semiautomatic firearm was found where defendant had been running.

Jiles identified defendant as the shooter based on defendant's height, clothes and hair. Council also identified defendant as the shooter. Vazquez and Montalvo were intoxicated at the ...


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