California Court of Appeals, Second District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Appeal from a judgment of the Superior Court of Los Angeles County, No. TA118178 Kelvin D. Filer, Judge.
[Copyrighted Material Omitted]
Gail Harper, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Clyde Wesley Anderson appeals from his conviction for the murder of Dominique McDaniel on three grounds: that he was deprived of representation by competent counsel at his preliminary hearing; that there is insufficient evidence to support his murder conviction; and that there is insufficient evidence to support the gang enhancements. We disagree, and affirm the judgment.
Anderson was charged by amended information with the first degree murder of Dominique McDaniel (Pen. Code, § 187, subd. (a)), and the attempted murder of Brandy Smallwood (Pen. Code, §§ 187, subd. (a), 664). The information alleged as to both counts that Anderson personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)); that he personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); that he personally used a firearm (§ 12022.53, subds. (b) & (e)); and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)), causing the offense to be classified as a serious felony (§ 1192.7, subd. (c)(28)). A number of prior
juvenile and serious felony convictions were alleged. Anderson pleaded not guilty to the charged offenses and denied the special allegations.
A jury acquitted Anderson of the attempted murder of Smallwood, but deadlocked (one juror favoring acquittal) on the charged murder of McDaniel. Following a second trial for the murder of McDaniel, the jury convicted Anderson of first degree murder and found the firearm and gang allegations true. In a bifurcated court trial the court found true three prior strike allegations.
The court sentenced Anderson to 115 years to life in prison: 25 years to life in prison for the murder, tripled to 75 years to life under the “Three Strikes” law (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)); an additional 25 years for the firearm discharge enhancements (§ 12022.53, subds. (d), (e)(1)); and an additional five years, consecutive, for each of the three prior serious felony convictions (§ 667, subd. (a)(1)).
Late in the morning of Easter Sunday, April 24, 2011, Smallwood and her friend McDaniel (who was then 18, about six years younger than Smallwood) left Smallwood’s sister’s house, in the Compton area of Los Angeles. Having just fought with her niece, Smallwood took with her a knife from her sister’s kitchen, which she gave to McDaniel.
As Smallwood and McDaniel walked past a group of people standing outside a house, a man (later identified as Anderson) approached them, asking “How old is she”referring to McDaniel“smoking a cigarette?” Smallwood replied that “she’s old enough, ” and Anderson responded, “She looks like she’s 12.” McDaniel, wielding the knife, stepped toward Anderson, saying “Blood, I’m BPS, ” or ...