Filed 6/24/13 P. v. Smith CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

COLEMAN KENYATTA SMITH,

Defendant and Appellant.

 B240264

 (Los Angeles County

 Super. Ct. No. TA119283)

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 
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enter the residence. Keynia saw him leave shortly thereafter. The .38-caliber 

revolver used in the shooting and a bag of clothing were found in a trash can on the 

side of the building from which Smith emerged after the shooting. 

Keynia testified she opened the door during the shooting. She did not see the 

shooter‟s face but described the shooter as light-skinned, tall, slender male with 

short, wavy hair, which described Tasevski. 

Sanders was taken to California Hospital where he died of gunshot wounds. 

Jose Ramirez lives across the street from California Hospital. In the early 

morning hours after the shooting, Ramirez was awakened by screaming. Ramirez 

looked outside and saw three men hitting, kicking and stomping Smith while 

several others watched. The men punched Smith more than 15 times, knocked him 

to the ground and stomped him with their feet. They ceased the attack and went to 

the entrance of the hospital but returned and “continued punching him.” Smith was 

hospitalized as a result of the attack but refused to discuss the assault with police 

officers. 

Tasevski testified he alone attacked Smith outside the hospital. 

Two DNA samples were obtained from the weapon used in the shooting. 

One sample was too small to render a profile. The other sample was matched to 

Smith‟s fellow gang member, Darrell Jones. Jones testified at trial he was not 

involved in the shooting but he may have handled the gun as guns frequently are 

passed among gang members. Jones has a tattoo dedicated to Sanders‟s memory 

and, after Sanders died, Jones stopped associating with Smith. 

Phone records indicated that at 3:06 p.m. on the day of the shooting, Smith 

sent a text message to his brother stating: “Time to kill some cheese toast,” a 

derogatory term for a member of Smith‟s gang. 

2. The prosecutor’s argument, as relevant to Smith’s claim.

The prosecutor argued the jury reasonably could infer Smith‟s fellow gang 

members beat him because Tasevski told them Smith had killed Sanders. The 

prosecutor asserted: “And we could logically understand why, as [Tasevski had] 
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just witnessed his best friend being shot by the defendant. [¶] And it was obvious 

that the gang was mad at [Smith] for shooting [Sanders], and they were getting their 

own street justice . . . .” 

Regarding Jones, the prosecutor noted he “has a memorial, a tattoo for 

[Sanders]. And we asked him, „Well, do you still associate with the defendant?‟ 

And he said no, obvious. [¶] We can logically infer that [Tasevski] told the gang 

that the defendant was the person responsible for shooting [Sanders].” 

Toward the end of rebuttal argument, the prosecutor asserted that, based on 

the nature of the attack, the jury reasonably could infer the attackers blamed Smith 

for Sanders‟s death. The prosecutor concluded by stating Smith “ends up getting 

brutally beaten and left in the street outside the hospital” where Sanders died. 

Defense counsel did not object to any of these remarks. 

DISCUSSION

1. Smith fails to demonstrate prosecutorial misconduct. 

a. Smith’s arguments. 

Smith contends the prosecutor urged an improper inference premised on 

facts not in evidence. He claims that because the identity of the attackers, other 

than Tasevski, was unknown, there was no evidence as to their state of mind with 

respect to Smith‟s culpability for Sander‟s death. Thus, the prosecutor 

“fictionalize[d] evidence” and committed misconduct in arguing Smith‟s fellow 

gang members believed Smith killed Sanders. The argument also violated the rule 

prohibiting opinion evidence on the issue of guilt. (People v. Torres (1995) 33 

Cal.App.4th 37, 46-47.) 

Smith further claims defense counsel rendered ineffective assistance in 

failing to object to the misconduct. He argues there was no reasonable explanation 

for the failure to object, the evidence was not overwhelming, the defense credibly 

blamed Tasevski for the shooting and the prosecutor‟s egregious misconduct 

warrants retrial. 
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b. Resolution.

A prosecutor is given wide latitude during argument. (People v. Hill (1998) 

17 Cal.4th 800, 819, overruled on another ground in Price v. Superior Court (2001) 

25 Cal.4th 1046, 1069, fn. 13.) Argument may be vigorous as long as it amounts to 

fair comment on the evidence, which can include reasonable inferences or 

deductions drawn from the evidence. (Ibid.) 

Here, the prosecutor‟s argument was based on inferences drawn from the 

evidence. Tasevski knew Smith was with Sanders at the time of the shooting and 

Smith returned to Tasevski‟s car immediately after the shooting holding a dark 

object and looking frantic. As a result of these observations, Tasevski drove from 

the scene in fear for his life. Later that night, a group of males beat Smith in the 

parking lot of the hospital where Sanders died. Tasevski admitted beating Smith 

just hours after the shooting. Ramirez, an unbiased eyewitness, testified several 

people participated in the beating. 

The obvious inference to be drawn from this evidence is that Tasevski told 

the assailants what he had seen and the group beat Smith in retaliation for the 

shooting of Sanders. Thus, the prosecutor‟s argument that Tasevski told other gang 

members what he had witnessed was a reasonable inference drawn from the 

evidence. The prosecutor did not commit misconduct in drawing this inference 

from the evidence. 

Smith complains the prosecutor impermissibly relied on the assailants‟ belief 

Smith shot Sanders in urging the jury to find Smith was the shooter. Smith claims 

this argument amounted to inadmissible opinion evidence on the issue of Smith‟s 

guilt. This argument fails because the prosecutor‟s “street justice” argument, in 

which the prosecutor asserted Smith was beaten because he shot Sanders, was based 

on the evidence presented at trial and was a permissible inference from the 

evidence. Thus, the prosecutor properly could argue Tasevski identified Smith as 

the shooter to other gang members and their conduct thereafter constituted 

circumstantial evidence of Smith‟s guilt. 
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Because it is not misconduct “to ask the jury to believe the prosecution‟s

version of events as drawn from the evidence,” the prosecutor‟s argument was 

proper. (People v. Huggins (2006) 38 Cal.4th 175, 207.) Thus, there were no 

grounds on which counsel could have objected and any objection would have been 

overruled. (People v. Cole (2004) 33 Cal.4th 1158, 1202, fn. 11.)

In any event, because it is not reasonably probable Smith would have 

achieved a more favorable result absent the argument, Smith is unable to 

demonstrate ineffective assistance of counsel. (Strickland v. Washington (1984) 

466 U.S. 668, 687 [80 L.Ed.2d 674].) The evidence of Smith‟s guilt included 

Sanders‟s dying declaration identifying Smith as the shooter and Smith‟s text 

message to his brother indicating his intent to kill a member of the gang. Also, 

Tasevski testified he drove from the scene in fear for his life after the shooting 

when he saw Smith approaching frantically with a dark object in his hand. 

Additionally, the murder weapon was found in the trash on the side of the building 

from which Smith emerged immediately after the shooting. The presence of 

Jones‟s DNA on the gun used in the shooting was explained by Jones‟s testimony 

that guns are passed among gang members. 

In sum, given the evidence of Smith‟s guilt and the obvious interpretation of 

the evidence urged by the prosecutor, Smith cannot show prosecutorial misconduct 

or deficient performance in defense counsel‟s failure to object. Even without the 

prosecutor‟s argument, the jury reasonably would have inferred the beating of 

Smith corroborated Tasevski‟s account of the murder. Thus, the claim of 

prosecutorial misconduct, as well as the assertion defense counsel rendered 

ineffective assistance, fail. 

2. The abstract of judgment must be corrected. 

The People correctly note the abstract of judgment must be modified to 

reflect the imposition of a five-year enhancement pursuant to Penal Code section 

667, subdivision (a), rather than section 667.5, subdivision (a). We shall order the 

requested modification. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
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DISPOSITION

The judgment is modified 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. The clerk of the superior 

court shall prepare and forward an amended abstract of judgment to the Department 

of Corrections and Rehabilitation. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.