Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA247844.
Michael S. Luros, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Nahki Holmes appeals from the judgment entered following a jury trial that resulted in his convictions for second degree murder, dissuading a witness by force or threat, and possession of a firearm by a felon. Holmes was sentenced to a prison term of 58 years to life.
Holmes contends: (1) the trial court erred by failing to sua sponte instruct the jury on involuntary manslaughter and refusing to instruct the jury on the defense of accident; (2) Holmes’s counsel was ineffective for failing to object to evidence of Holmes’s prior uncharged misconduct; (3) the evidence was insufficient to prove malice, requiring reduction of the murder conviction to voluntary manslaughter; (4) the evidence was insufficient to prove the gang enhancement; and (5) use of Holmes’s prior juvenile adjudication as a “strike” for purposes of his sentencing pursuant to the three strikes law violated his right to a jury trial.
The People contend the trial court erred by awarding presentence conduct credit under Penal Code section 4019. We agree that the trial court erred in this regard. Accordingly, we order the judgment modified to delete the presentence conduct credit awarded. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues on appeal established the following. On May 10, 2003, appellant attended a barbecue at a carwash. He and his friend Tremayne Watkins played dice together inside the carwash building. Eventually the two men emerged from the building, arguing. They became embroiled in a fistfight in which Holmes beat Watkins, leaving him beaten and bloodied. The son of the owner of the carwash broke up the fight.
Holmes, who appeared “hyped up” and “ready to fight again” circled around, asking the onlookers, “Who else want[s] some[?]” Victim Darryl Ficklin, who was also attending the barbecue and had watched the fight, stated, “I bet he won’t do that to me.” Holmes walked to a chair to retrieve his belongings and “shoulder shov[ed]” Ficklin, stating, “This is MVP Cuz.” Ficklin took off his sweater and prepared to fight. Ficklin then punched Holmes several times, causing Holmes to back up and eventually fall against some chairs against a wall. Holmes was not able to get in a punch. Holmes reached toward his waistband. After a pause of approximately two to three seconds, Holmes fatally shot Ficklin in the abdomen. Ficklin called out, “I’m shot,” and fell to the ground. Holmes, holding the gun, kicked Ficklin three or four times and called him a “bitch ass nigger.” Holmes then pointed the gun at the crowd and left the carwash in a red Camaro.
“MVP,” or “most valuable pimps,” was the name of a local criminal street gang to which Holmes belonged.
Several weeks later, Holmes approached Jason Brown, who had witnessed the shooting. Holmes displayed a gun and asked Brown what he knew about the shooting.
Holmes was arrested in February 2004. Prior to trial, his girlfriend, Shalonda Spriggs, visited him in jail on numerous occasions. Her visits with Holmes were monitored and recorded. Spriggs and Holmes repeatedly discussed fabricating potential defenses, including that Holmes was not at the carwash, and that the gun fired accidentally as he fell. They also hatched a plan to frame a person they believed to be a witness for rape.
2. Procedure.
Holmes was tried by jury twice. In Holmes’s first trial, the jury found him guilty of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The jury found not true the allegations that Holmes had committed the crimes for the benefit of a criminal street gang (§ 186.22) and personally used a firearm in connection with the dissuading offense. The jury acquitted Holmes of a second count of possession of a firearm by a felon. It deadlocked on count 1, the murder of Ficklin, and a mistrial was declared. Upon retrial of count 1, the jury found Holmes guilty of second degree murder. (§ 187, subd. (a)). It found true allegations that Holmes personally used, and personally and intentionally discharged, a firearm, causing Ficklin’s death (§ 12022.53, subds. (b), (c), (d)), and that Holmes was armed with a firearm (§ 12022, subd. (a)(1)). The jury found not true the allegation that Holmes committed the murder for the benefit of a criminal street gang. The trial court sentenced Holmes to a term of 58 years to life in prison. It imposed a restitution fine, a suspended parole revocation fine, a victim restitution award, and a court security fee. Holmes appeals.
DISCUSSION
1. Purported instructional errors.
Holmes contends the trial court erred by failing to instruct on involuntary manslaughter and the defense of accident. Both contentions are premised on the theory that the gun could have discharged accidentally. We discern no error.
a. Additional facts.
The jury was instructed with the full panoply of instructions on second degree murder, voluntary manslaughter, and perfect and imperfect self defense. The trial court did not instruct on involuntary manslaughter, and the defense did not request that it do so. Over a defense objection, the trial court likewise did not instruct on the defense of accident. The court explained that if the defendant had testified that the gun fired by accident (as he did in his first trial), then substantial evidence would exist to support the instruction. However, the only evidence presented showed that there was a two- to three-second gap between the time Holmes fell and the gunshot, negating the possibility the gun fired by accident.
b. Discussion.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The trial court therefore must instruct, sua sponte, on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case, including lesser included offenses supported by the evidence and defenses on which the defendant relies or which are not inconsistent with the defendant’s theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 157; People v. Heard (2003) 31 Cal.4th 946, 980; People v. Salas (2006) 37 Cal.4th 967, 982; People v. Bohana (2000) 84 Cal.App.4th 360, 370; People v. Oropeza (2007) 151 Cal.App.4th 73, 78; People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982.)
A court is notobliged to instruct on theories that lack substantial evidentiary support. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588; People v. Breverman, supra, 19 Cal.4th at p. 162.) “ ‘ “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ ” ’ [Citation.]” (People v. Benavides, supra, at p. 102; People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People v. Heard, supra, 31 Cal.4th at p. 981.)
On appeal, we independently review the question of whether the trial court erred by failing to instruct on defenses and lesser included offenses. (People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Manriquez, supra, 37 Cal.4th at p. 587.) The erroneous failure to instruct sua sponte on a lesser included offense is, at most, an error of California law alone, and reversal is required only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Error in failing to instruct the jury on a lesser included offense is also harmless “ ‘ “when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” ’ [Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 928.)
The standard of review applicable to the erroneous failure to instruct on a defense is unsettled. (See People v. Salas, supra, 37 Cal.4th at p. 984 [“[w]e have not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense”]; People v. Russell, supra, 144 Cal.App.4th at pp. 1431-1432 [applying Watson standard]; People v. Thurmond (1985) 175 Cal.App.3d 865, 871-872 [accident is an affirmative defense].)
“Involuntary manslaughter is ordinarily a lesser offense of murder. [Citation.] ‘One commits involuntary manslaughter either by committing “an unlawful act, not amounting to felony” or by committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant’s constitutional right to have the jury determine every material issue.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 515-516; see also People v. Cook, supra, 39 Cal.4th at p. 596; People v. Manriquez, supra, 37 Cal.4th at p. 587; People v. Parras (2007) 152 Cal.App.4th 219, 227-228.) Holmes theorizes that the evidence supported a finding the gun discharged accidentally when he fell backwards after being punched by Ficklin. He points out that only one shot was fired, and the gun discharged within two to three seconds after he fell into the wall or chairs. He urges that because the shooting occurred while he was either committing the misdemeanor of carrying a loaded weapon in public (§ 12025) or the non-inherently dangerous felony of possession of a firearm by a felon, he could have been convicted of involuntary manslaughter even though the gun accidentally discharged. (See, e.g., People v. Ramirez (1979) 91 Cal.App.3d 132, 139.)
We discern no error. The trial court properly omitted instructions on accident and involuntary manslaughter because they were unsupported by substantial evidence. Holmes did not testify, nor was there evidence of any out-of-court statements by him suggesting the gun fired accidentally. No forensic evidence suggested the shooting was accidental. The testimony of the three eyewitnesses did not support a conclusion the gun fired accidentally. Isaima Rios testified that, after Ficklin punched Holmes several times, Holmes reached toward his waistband just before the shot. This evidence suggested Holmes intentionally pulled his gun from his waistband in order to shoot Ficklin, who had the upper hand in the fight. Jason Brown and Wilson Allen testified that Holmes fell against some chairs or a wall, and, two to three seconds after the fall, the gun fired. Had the shot and the fall been simultaneous, the evidence arguably would have supported a conclusion the gun accidentally fired as Holmes fell. The time lag described by the witnesses, however, negated that possibility. In short, nothing more than speculation supported the suggestion that the gun fired accidentally. Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense. (People v. Valdez (2004) 32 Cal.4th 73, 116.)
Nor was Holmes’s conduct after the shooting consistent with a finding the gun fired accidentally. Rather than seek help, express concern, surprise, or remorse, or state that the shooting was unintentional – actions one might expect if the gun had discharged accidentally – Holmes kicked the victim as he lay bleeding on the ground, called him a “bitch ass nigger,” and pointed his gun menacingly at the crowd as he departed. After his arrest, Holmes and his girlfriend discussed fabricating various inconsistent stories Holmes might use in his defense, including that he was not at the scene of the murder. In short, the evidence did not support a finding the gun fired accidentally, and therefore instructions on involuntary manslaughter and accident were unwarranted.
The authorities cited by Holmes do not assist him. People v. Acosta (1955) 45 Cal.2d 538, in which the trial court erred by refusing an instruction on accident, involved a highly unusual factual situation in which the drunken defendant drove a taxi negligently after the taxi driver, believing he was about to be robbed, rolled out of the still-running vehicle. The Acosta defendant denied any violent conduct and testified that his purposes were innocent. (Id. at p. 540.) Similarly, in People v. Jones (1991) 234 Cal.App.3d 1303 , there was sufficient evidence to require an instruction on accident because the defendant testified that his shotgun discharged accidentally and he had no criminal intent. (Id. at p. 1314.) In contrast, evidence of accident in the instant case was entirely lacking. Finally, even assuming the challenged instructions were required, any error was harmless under any standard. As we have discussed, no evidence was presented suggesting that the shooting was an accident, and considerable evidence suggested that the shooting was intentional. The evidence showed Holmes, “hyped up” and seeking a further fight with onlookers, was bested by Ficklin and shot Ficklin in response. This evidence, coupled with Holmes’s behavior immediately after the shooting and his later attempt to fabricate a number of stories and intimidate witnesses, makes it clear beyond a reasonable doubt that no reasonable jury would have concluded the gun fired accidentally. Holmes’s reliance on the fact his first jury deadlocked is misplaced. As Holmes acknowledges, he testified in the first trial and explained that the gun discharged accidentally. This evidence was not presented in the second trial, making a comparison of the two inapt.
Moreover, and most significantly, the factual question upon which the challenged instructions turned was resolved adversely to Holmes. The jury found true the allegation that Holmes personally and intentionally fired a handgun, causing Ficklin’s death. The jury was instructed that an element of the firearm enhancement was that “the defendant himself must have intentionally discharged” the gun. Therefore, any purported error in the failure to give the challenged instructions was necessarily harmless. (People v. Beames, supra, 40 Cal.4th at p. 928; cf. People v. Manriquez, supra, 37 Cal.4th at p. 588.)
2. Ineffective assistance of counsel.
a. Additional facts.
Tremayne Watkins testified as a witness for the defense. He stated that he and Holmes were friends, and acknowledged that Holmes had beaten him during the carwash fight. During cross-examination, the prosecutor asked whether Holmes and Watkins had had other fights. Watkins described two additional incidents. In the first, he and Holmes had been “a little bit drunk,” argued, and threw a few punches. They then obtained and drank more beer together. In a second incident, Watkins and Holmes were spending time together and “had some words exchanged.” Holmes went to his car, pulled out a gun, approached Watkins and said something, hit Watkins in the mouth with the gun, and then drove away. Watkins did not take the incident seriously. Shortly thereafter Holmes returned and tried to apologize. Watkins stated he was “pretty sure” Holmes would not have shot him had he struck back, but was not entirely certain. Defense counsel did not object to this testimony.
b. Discussion.
Holmes contends his counsel was ineffective for failing to object to the aforementioned testimony, in particular the incident in which Holmes hit Watkins with the gun. He asserts that the evidence was not only inadmissible character evidence (Evid. Code, § 1101, subd. (a)), but was also irrelevant. Accordingly, he contends its admission violated his due process rights.
“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails . . . .’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Where counsel’s strategic reasons for challenged decisions do not appear in the record, we will not find ineffective assistance unless there could be no conceivable reason for counsel’s acts or omissions. (Ibid.) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.” (People v. Carter, supra, at p. 1211; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.) “Were it otherwise, appellate courts would be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.)
Failure to object is a tactical decision that rarely establishes ineffective assistance. (People v. Lancaster (2007) 41 Cal.4th 50, 82 [defense counsel failed to object to prosecutor’s questioning of witness regarding defendant’s violent past].) Here, Holmes has not shown that counsel lacked a tactical reason for the failure to object.
In any event, the ineffective assistance claim fails because, even assuming arguendo counsel’s failure to object lacked a tactical basis and fell below an objective standard of reasonableness, Holmes cannot show prejudice. Watkins’s account of his prior altercations with Holmes was not particularly damaging. The fact that Holmes was shown to possess a gun on a prior occasion was not prejudicial: that Holmes had a gun at the murder scene was not disputed. It was also undisputed that Holmes had engaged in a fistfight with Watkins, and then with the victim, at the carwash. It was also undisputed that Ficklin voluntarily accepted Holmes’s challenge to fight. Thus, the fact that Holmes had two prior physical altercations with Watkins did nothing to assist the People’s case. The injuries Watkins suffered in the prior fights were not as severe as those stemming from the carwash incident. Watkins still considered Holmes his friend at the time of trial, suggesting that the fights were not taken seriously by either party. Contrary to Holmes’s argument, the evidence did little if anything to paint him as the type of person who would have intentionally shot Ficklin. Watkins did not testify that Holmes would have shot him had he hit back in the second incident; he testified that while he was not sure, he did not believe Holmes would have done so.
Holmes also contends that “[i]n view of the prior mistrial,” admission of the challenged evidence was prejudicial. This argument is unavailing. Watkins testified about the prior incident involving the gun in the first trial. As the evidence was introduced in both trials, the mistrial provides no basis for the conclusion that the evidence was prejudicial.
3. The evidence was sufficient to prove malice.
Holmes next asserts that there was no substantial evidence to support the second degree murder conviction because there was insufficient evidence of malice. He urges that because none of the witnesses saw him actually pull the gun from his waistband, aim it at Ficklin, and pull the trigger, the evidence of malice was lacking. We disagree.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Murder is an unlawful killing committed with malice aforethought. (§ 187, subd. (a); People v. Robertson (2004) 34 Cal.4th 156, 164.) Second degree murder is an unlawful killing with malice aforethought, but without the elements of willfulness, deliberation, and premeditation that elevate the killing to the first degree. (People v. Robertson, supra, at p. 164; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) “Malice may be express or implied. Malice is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ (§ 188.)” It is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, deliberately performed by a person acting with conscious disregard for life, who knows that his or her conduct endangers the life of another. (People v. Robertson, supra, at p. 164; People v. Nieto Benitez, supra, at pp. 102-103.) When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought. (People v. Nieto Benitez, supra, at p. 103.)
“ ‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]’ [Citation.] A jury may infer a defendant’s specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors. [Citation.] . . . . When the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the jury’s finding of that intent will not be disturbed on appeal.” (People v. Ferrell (1990) 218 Cal.App.3d 828, 834; cf. People v. Pre (2004) 117 Cal.App.4th 413, 420.)
Here, the evidence was sufficient to prove implied malice. Holmes, “hyped up” and “ready to fight again” after beating Watkins, challenged the onlookers at the barbecue to fight him. Holmes provocatively shoved Ficklin’s shoulder as he retrieved his belongings from a chair. Holmes had clearly armed himself with a loaded gun by the time the fight with Ficklin began, either having possessed it on his person during the entire incident or having retrieved it from the chair. There was also evidence from which the jury could find Holmes intentionally pulled the gun on Ficklin. Rios testified that when Holmes was being beaten by Ficklin, Holmes reached for his waistband. Certainly the jury could infer Holmes must have pulled the gun from where it was concealed on his person, or the gun would not have been in a position to inflict the fatal shot. Holmes’s conduct immediately after the shooting – kicking the bleeding victim, calling him names, and brandishing the gun at the onlookers – was inconsistent with an unintentional shooting and strongly suggested Holmes’s conduct was intentional. From this evidence the jury could readily infer that Holmes, upset that Ficklin had the upper hand in the fight, intentionally shot him.
But even if the jury had concluded that Holmes simply brandished the gun, the evidence would have been sufficient to establish implied malice. People v. Nieto Benitez, supra, 4 Cal.4th 91, is instructive. There, the defendant was at a catering truck when two men engaged in horseplay accidentally threw a plate of food on him. Incensed, the defendant demanded that they wash his shirt. When they refused, he went to his nearby residence and retrieved a gun and ammunition, which he concealed on his person. The defendant returned to the catering truck and again asked one of the culprits, Guero, to wash his shirt. Guero challenged the defendant to fight, and lunged at him. As Guero lunged, the defendant pulled his gun, which fired as it was drawn, killing Guero. The evidence conflicted regarding whether the defendant pointed the gun at Guero or at the sky. (Id. at pp. 98-99.)
The trial court instructed that a finding of implied malice could be based solely on the intentional act of drawing the firearm. (People v. Nieto Benitez, supra, 4 Cal.4th at p. 101.) The defendant argued on appeal that deliberately firing a handgun could constitute a predicate act supporting a finding of implied malice, but simply pulling the gun could not. (Id. at p. 101.) In the context of determining whether the jury was properly instructed, the California Supreme Court concluded that, depending on the circumstances, the act of brandishing a loaded firearm may constitute an act sufficiently dangerous to life to support a second degree murder conviction on an implied malice theory. (Id. at pp. 96, 105-106.) For example, “where the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied -- from the circumstances leading to the killing -- to support a conviction of second degree murder.” (Id. at pp. 109-110.) Such was the situation here. The evidence was sufficient.
4. The gang enhancement.
Holmes asserts that there was insufficient evidence the murder was committed for the benefit of a criminal street gang, requiring that the section 186.22 gang enhancement be stricken. As the People point out, however, the jury found the section 186.22 gang allegations not true, and accordingly no section 186.22 sentence enhancements were imposed. Therefore, Holmes’s contention is moot.
5. Use of Holmes’s juvenile adjudication as a “strike” did not violate his right to jury trial. After a bench trial, the trial court found Holmes had a prior sustained juvenile adjudication for assault with a firearm (§ 245, subd. (a)(2)), a serious or violent felony within the meaning of the three strikes law. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, Holmes contends that use of his prior sustained juvenile petition to double his sentences for murder and dissuading a witness pursuant to the three strikes law violated his federal constitutional right to a jury trial.
In Apprendi v. New Jersey, supra, 530 U.S. 466, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In U.S. v. Tighe, supra, 266 F.3d 1187, a divided panel of the Ninth Circuit held that prior juvenile adjudications do not fall within Apprendi’s recidivism exception. (Id. at pp. 1194-1195.) The Tighe majority reasoned that the recidivism exception is limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. (Id. at p. 1194; see People v. Tu (2007) 154 Cal.App.4th 735, 750.) Tighe concluded, “Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s ‘prior conviction’ exception.” (U.S. v. Tighe, supra, 266 F.3d at p. 1194.)
We are, of course, not bound by the decisions of the lower federal courts, even on federal questions (People v. Cleveland (2001) 25 Cal.4th 466, 480; People v. Bradford (1997) 15 Cal.4th 1229, 1292). Tighe has been rejected by the majority of California appellate courts that have considered the issue (People v. Tu, supra, 154 Cal.App.4th at p. 750; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Lee (2003) 111 Cal.App.4th 1310, 1311,1316; see also People v. Fowler (1999) 72 Cal.App.4th 581, 584-587), as well as several federal courts (U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032; U.S. v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190). We reject Tighe as well, for the reasons stated in the aforementioned authorities.
In any event, the remedy for the asserted flaw in using a juvenile adjudication as a prior conviction under the three strikes law is to require the prosecutor to prove the fact of the underlying juvenile adjudication to the jury at the trial of the current offense. (U.S. v. Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) Here, Holmes waived the right to jury trial on the truth of the prior conviction allegations. He therefore cannot now complain that use of the prior juvenile adjudication violated Apprendi.
6. Custody credits.
The People assert that the trial court erred when calculating Holmes’s presentence conduct credits. Holmes served 948 days of actual presentence custody, and was credited accordingly. In addition, the trial court awarded 478 days of presentence conduct credit, for a total of 1,426 days. The People complain that the trial court erred by awarding conduct credits in additional to actual custody credits. This contention has merit.
The abstract of judgment reflects a different amount, i.e., total credits of 1,418 days, comprised of 948 days of actual and 470 days of local conduct credits. Where the court’s oral pronouncements and the abstract of judgment differ, the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4h 181, 185.)
Section 2933.2 prohibits an award of presentence conduct credits to “any person who is convicted of murder.” (§ 2933.2, subds. (a), (c).) “[S]ection 2933.2 applies to the offender not to the offense and so limits a murderer’s conduct credits irrespective of whether or not all his or her offenses were murder.” (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) We modify the judgment and order amendment of the abstract of judgment accordingly.
Section 2933.2, subdivision (a) provides, “Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933.”
DISPOSITION
The judgment is modified to delete the award of presentence conduct credits. (§ 2933.2.) The Clerk of the Superior Court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.