Filed 10/28/15 P. v. Williams CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

CHARMA R WIL LIAMS , Defendant and Appellant. B263193
(Los Angeles County Super. Ct. No. Y A0 84964 )

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven
R. Van Sicklen , Judge. Affirmed as modified

.

______ H. Russell Halp ern , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Ste ven D. Matthews and Roberta
L. Davis , Depu ty Attorneys General, for Plaintiff and Respondent.

______2

Charmar Williams appeals from the judgment entered after a jury convicted him of willful, deliberate and premeditated attempted murder and being a felon in possession of
a firearm. Williams cont ends that his trial counsel was ineffective. We requested briefing on whether the trial court erred by using the “Three Strikes” l aw to impose a second life term on the attempted murder count . We reject Willi ams’s ineffective
assistance of counsel argume nt but conclude that his sentence on the attempted murder

count is erroneous. We modify the sentence to impose a 14

- year minimum period of
confinement on the life term and to strike the second life term.

FACTUAL AND PROCEDURAL BACKGROUND
1. The Informatio n An information, filed on October 24, 2012, charged Williams with willful, deliberate and premeditated attempted murder (Pen. Code , §§ 664, subd. (a), 187,
subd. (a) 1 ) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The
information specially alleged firearm enhancements pursuant to section 12022.53, as well as a prior serious or violent felony conviction for robbery (§ 211) that qualified as a strike
under the Three Strikes l aw (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)) and s ubjected Williams to a section 667, subdivision (a)(1), enhancement.
2. The Evidence at Trial Williams and Sebastian Pitts, whose girlfriend was Williams’s ex

- wife, had a history of altercations. In 2008, Williams stabbed Pitts in the neck with a key. P itts required stitches and rehabilitation due to his injuries. Williams said that he had stabbed Pitts to protect himself because Pitts, who was much larger than Williams, was making
verbal threats toward him ; Pitts said that Williams was yelling at him b efore the stabbing

. Several years later, Pitts, in retaliation for the stabbing, beat up Williams outside a grocery store, causing Williams severe injuries. A few months after the grocery

- store incident, o n the afternoon of July 17, 2012, Pitts and his g irlfriend left the girlfriend’s eye doctor appointment and drove to a

1 Statutory references are to the Penal Code.3

shopping center

. As Pitts was parking his car, a white sedan entered the lot and stopped at the curb. Williams exited the sedan and walked quickly to Pitts’s van, while carrying a

gun at his side. As Pitts attempted to exit the van, Williams shot Pitts multiple times, hitting him in the left arm and right leg and skimming his chest . Williams returned to his

car and lay down in the back of the car while his girlfriend drove to the hosp it a l. A bystander , who had witnessed the shooting, called 911

. Pitts was in the hospital for a week due to his injuries. Williams, testifying in his defense, admitted to shooting Pitts multiple times but said he did so because Pitts was following him
, he feared Pitts and he believed Pitts had a weapon with him, either a gun or a knife. According to Williams, after he drove into the parking lot to take his girlfriend to pick up a prescription, he noticed Pitts’s van in the lot. He stopped his car at t he curb, retrieved his gun from the glove compartment, put it in his pocket and walked to Pitts’s van. Pitts was standing outside the van. Believing he saw the handle of a gun or knife in Pitts’s waistband, Williams to ok the gun out of his pocket
and fir ed multiple shots at Pitts. He returned to his car, and he and his girlfriend drove

away. Police did not find any weapon at the scene of the shooting or in Pitts’s van. After apprehending Williams, police recovered a gun from inside a sock in his dres ser drawer.
3. The Jury’s Verdict and Sentencing A jury convicted Williams of both counts and found true the special allegations under section 12022.53. After Williams waived a jury trial on the prior conviction allegations, the trial court found them to be true. The court sentenced Williams to state prison for life on the attempted murder count and added a second life t erm based on the
Three Strikes l aw, plus 25 years to life for the firearm enhancement, five years for the section 667, subdivision (a )(1), enhancement and four years (the two

- year midterm doubled) for being a felon in possession of a firearm.4 DISCUSSION
1. Ineffective Assistance of Counsel

“‘“ [T]he right to counsel is the right to the effective assistance of counsel.” ’ [Citation.] ‘ The benchmark for judging any claim of ineffectiveness must be whether
counsel ’ s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. ’ [Citation.] ‘ A convicted
defend ant ’ s claim that counsel ’ s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’ s performance was deficient. This requires showing that counsel made errors so
serious that coun sel was not functioning as the “c ounsel ” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Thi s requires showing that counsel’ s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unre liable. ’ [Citation.]” ( In re Valdez (2010) 49 Cal.4th 715, 729.) As a result, if a reviewing court concludes that the alleged ineffective assistance did not prejudice the defendant, it need not address whether counsel’s performance was deficient. ( Peop le v. King (2010)
183 Cal.App.4th 1281, 1298.) After the jury returned its verdict but before sentencing, Williams substituted in new counsel. That counsel filed a new trial motion in which Williams argued that his
trial counsel was ineffective for faili ng to challenge the credibility of a witness

— the bystander to the shooting

— because several of Williams’s family members and his pastor

saw the witness exit Pitts’s van with Pitts at the lunch recess on the day of the preliminary hearing , and some saw the w itness and Pitts “high five” each other after exiting the van

. Williams’s mother and pastor said they reported this sighting to trial counsel. Williams’s mother also stated that she gave the attorney who represented Williams at the preliminary hearing a notarized document outlining her observations of
the witness and Pitts and later provided a copy to trial counsel. The People stipulated that5

the document was in the file of the attorney at the preliminary hearing, which was turned
over to trial counsel. Trial counsel testified that he was not made aware of any contact between the witness and Pitts and if he had been he would have investigated the matter. Williams argued that the observations of the witness with Pitts were critical and that trial
counsel should have cross

- examined the witness to undermine his credibility as an independent bystander.
The trial court denied the new trial motion correctly

. Assuming that the witness
and Pitts did interact at the lunch recess of the preliminary hearing and t hat trial counsel
knew or should ha ve known about the interaction, it is not reasonably probable that questioning the witness about this interaction would have led to a different verdict. The evidence against Williams was very strong

. The undisputed evid ence, even according to Williams’s own testimony, demonstrated that Williams walked up to Pitts’s van and shot Pitts multiple times. Williams testified that he saw a handle in Pitts’s waistband and thought it was a gun or a knife. But no weapon was found at the scene of the shooting or in Pitts’s van. The witness testified that he did not see Pitts’s waistband. He thus was unable to shed light on the crucial distinction between the testimony of Williams and Pitts, that being whether Pitts might have bee n carrying a weapon.
2. Sentence on the Count for Willful, Deliberate and Premeditated Attempted Murder On the attempted murder count , the trial court sentenced Williams to life pursuant to section 664, subdivision (a), and then added a second life term to “double” the

se ntence under the Three Strikes l aw based on Williams’s prior strike conviction for robbery. This was error. When a defendant is convicted of willful, deliberate and premeditated murder, and has a prior strike conviction, the sentence

- doubling requirement of the Three Strikes law in section 667, subdivision (e)(1), does not allow for imposi tion of a second life term. ( People v. Jefferson (1999) 21 Cal.4th 86, 99.) Rather, “ [b] ecause section 3046 requires that a defendant sentenced to life imprisonment with the possibility of parole
serve ‘at least seven calendar years or . . . a term as established p ursuant to any other
section of law that establishes a [greater] minimum period of confinement’ before6

becoming eligible for parole,’ it sets forth a ‘minimum term’ within the meaning of section 667(e)(1), which provides that for a defendant with a pri or strike the ‘minimum
term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony provisi on.’” ( Id . at p. 96.) In this case, there was no applicable greater minimum period of confinement. As a result, the court was required to

sentence Williams to life with a minimum period of confinement of 14 years, doubled
from seven years. We, therefor e, modify Williams’s sentence on the count for willful, deliberate and premeditated attempted murder to impose a 14

- year minimum period of
confinement o n the life term and to strike the second life term. 2
DISPOSITION
The judgment is modified to impose a 1 4

- year minimum period of confinement o n the attempted murder count and to strike the second life term on the attempted murder

count. As modified, the judgment is affirmed. The trial court shall forward a corrected abstract of judgment to the Department o f Corrections and Rehabilitation.
NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

CHANEY, J. LUI, J.

2 With this modification, Williams’s sentence is life, with a 14

- year minimum period of confinement (seven years doubled based on the Three Strikes law), on the attempted murder count, plus 25 years to life for the section 12022.53, subdivision (d), enhancement
, five years for the section 667, subdivision (a)(1) enhancement and fou r years (th e midterm of two years doubled) on the count for being a felon in possession of a firearm.