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People v. Ford8/25/2005
1. Introduction
Defendant Larry William Ford appeals from a judgment convicting him of attempted murder. On appeal, defendant claims his trial counsel provided ineffective assistance both in stipulating to the admission of prior sexual abuse evidence and in failing to present a consistent and viable defense theory. Defendant also claims the trial court erred in failing to strike a firearm enhancement under Penal Code section 12022.53, subdivision (j), and the great bodily injury enhancement under section 654.
We conclude that defendant has failed to establish that he was denied a fair trial by his trial counsel's performance. We also conclude that, while the court properly imposed the firearm enhancement, the court should have stayed the great bodily injury enhancement. We affirm in part and reverse in part.
2. Factual and Procedural History
At 6:00 p.m. on April 21, 2003, Tisha Wells began her shift at the Oasis Bikini Bar. Wells noticed defendant drinking at the bar. Defendant approached Wells and talked to her about the money she owed him. He told her that, unless she paid him, she would have to leave the bar with him and that he would hurt her.
Later that night, about 10:00 p.m., Nathan Johnson and his friend, Kadesh Gayle, arrived at the bar. Wells, who was friends with Johnson, distanced herself from defendant and went up to Johnson and asked him to play pool. Wells appeared to be afraid of defendant.
As Johnson and Gayle were playing pool, defendant twice approached them and offered them money for the use of the pool table. Although Johnson and Wells were planning to play the next game, defendant insisted on playing pool with Wells. In his statement to the police, defendant explained that, because he was concerned about Johnson and his friends, he left the bar, went home to retrieve his handgun, and returned to the bar with the gun concealed under his coat. During his second request for the pool table, defendant pulled back his coat and revealed his gun. Defendant said to Johnson, "I can just take it from you." Johnson recalled leaving the pool table, but Gayle remembered finishing their game.
At some point, defendant approached Johnson again and told him that if he told anyone about the gun, he would shoot him in the face. Later, defendant insisted that Johnson accompany him to smoke a cigarette outside. Johnson walked outside and defendant followed him.
Outside, as Johnson reached for a cigarette, defendant ordered him to take his hands out of his pockets. Defendant then gave him a cigarette. When Johnson asked defendant about the gun, defendant explained that he had the gun to prevent someone from taking his jewelry. As Johnson looked toward his truck, thinking of a way to leave, defendant raised his gun and shot Johnson in the chest.
Shortly after Johnson and defendant went outside, Gayle and others heard a gunshot and then saw Johnson walk back inside with one hand over his wound and one hand holding a cigarette. Johnson fell to the ground. Defendant ran down the parking lot and left the scene.
Johnson had a gunshot wound to the left upper quadrant of his abdomen. The bullet also went through Johnson's lung and spleen. The trauma physician removed Johnson's spleen and repaired his lung and diaphragm. The injuries to his lung and spleen were life threatening.
After leaving the bar, defendant drove to a bridge, threw his gun over the side, called 911 and reported an accidental shooting, and continued driving around for awhile. Officers found defendant asleep in his SUV a few blocks from his residence.
The Riverside County District A
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