Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BA251920 & BA291473, Sam Ohta, Judge.
Daniel G. Koryn, 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, Lance E. Winters and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Michael R. Jones guilty of one count of murder and found true gun and gang allegations. Defendant makes three contentions on appeal. First, there is insufficient evidence to establish the corpus delicti. Second, the prosecutor committed prejudicial misconduct by saying that the defense had a burden of proving innocence. Third, the trial court erred by staying instead of striking sentences on gun enhancements. We disagree with these contentions, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On the morning of July 20, 2003, defendant, a member of the 55 Neighborhood Crips, was in a blue Expedition with “Sand” and “Scrap.” Sand told defendant that he had done “nothing for the hood” and that they were going to find someone to “pop.” They saw Dexter Rideout, a young man with a mental disability, walking. Thinking that Rideout was a rival gang member, defendant, carrying a .380 caliber gun, walked up to Rideout, and asked him, “What’s up Groove?” Defendant then shot Rideout.
Deontae Ricks and Arturo Mendoza.
Rideout was not a gang member.
In an interview with police in 2005, defendant initially denied knowing anything about Rideout’s murder. He then said he was there and that Sand was the shooter. Defendant then admitted he was the shooter.
Jennifer S., who was nine years old, was at a nearby store. She heard shots. After the shots stopped, she went outside. She saw a black man wearing a white tank top and blue jeans standing over Rideout’s body. Jennifer S. told an officer that the man shot Rideout five times. The man got into the backseat of a big blue car.
Rideout died at the scene, having been shot 10 times, including in the head. All casings found at the scene were from a .380 caliber weapon.
II. Procedural background.
Trial was by jury. On September 25, 2006, the jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true gun (§ 12022.53, subds. (b), (c), (d), and (e)(1)) and gang (§ 186.22, subd. (b)) allegations. On October 26, the trial court sentenced defendant to 25 years to life for the murder, plus a consecutive 25 years under section 12022.53, subdivision (d). The court imposed but stayed the remaining sentences on the gun allegations.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
I. Corpus delicti.
Defendant contends that, apart from his admissions, the evidence was insufficient to establish the corpus delicti. We disagree.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168; see also People v. Crew (2003) 31 Cal.4th 822, 836-837.) The prosecution cannot satisfy its burden of proving the corpus delicti by relying exclusively on the defendant’s extrajudicial statements, confessions or admissions. (Alvarez, at pp. 1168-1169.) There must be independent proof of the corpus delicti. But the “independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible.” (Id. at p. 1171.) “There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency.” (Ibid.) The purpose of the corpus delicti rule is to ensure that an accused is not confessing to a crime that never occurred. (People v. Jennings (1991) 53 Cal.3d 334, 368.)
There is sufficient evidence of the corpus delicti. Jennifer S. heard gunshots. She saw a man standing over Dexter Rideout and shoot him. Rideout died after being shot 10 times. Defendant does not argue that Rideout’s death was a suicide, and it is highly improbable Rideout could have shot himself 10 times, including in the head, and have disposed of the gun, which was never found.
Although this evidence was more than sufficient to establish the corpus delicti, defendant nevertheless argues that absent his incriminating statements there was insufficient evidence he committed any crime. Defendant’s argument appears to misperceive the corpus delicti rule. The rule requires only a showing that a crime occurred, not the defendant’s criminal liability for it. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1128.) The perpetrator’s identity is not an element of the corpus delicti. (People v. Crew, supra, 31 Cal.4th at p. 837.) As we have said, the People satisfied their burden of proving a crime occurred by evidence independent of defendant’s confession. Defendant’s confession merely corroborated that a crime occurred; it was not the sole evidence of it.
II. Prosecutorial misconduct.
Defendant next contends that the prosecutor committed prejudicial misconduct during closing arguments. We conclude that any misconduct was not prejudicial.
“A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) “A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew, supra, 31 Cal.4th at p. 839.)
The alleged misconduct here occurred during the People’s rebuttal closing argument:
“[The prosecutor]: And what I have done is put some slides together . . . of the evidence you have before you and try to really keep you focused on evidence and away from the arguments because what we say is not evidence. It tries to bring forth the information for you, to put everything together and make that decision as easily as possible. That is what our job is. Defense’s job is to convince you that the defendant did not do it. And my job is to convince you based on evidence and the law that he is guilty of this crime.
“[Defense counsel]: Excuse me. I’m going to object to that, Your Honor. I have no obligation to do anything.
“The court: Well, the argument, I think, doesn’t cover all that a defense attorney does. So I would sustain that objection.
“[The prosecutor]: Okay. The defense has no obligation. The burden is mine. But when he comes up and argues at that point, he is trying to convince you that this defendant is not guilty. They do a whole host of things. But the point is, we all have different jobs, but we really need to get back to what this case is about.” (Italics added.)
Soon thereafter, at the conclusion of the People’s argument, the trial court instructed the jury, “I sustained an objection made by [defense counsel] during the argument by the prosecutor. It seemed to intimate that defense counsel’s job is to prove that their client is ‘not guilty.’ But he objected. I sustained the objection, and the objection, essentially, was that he has no burden of proof in this case, that the entire burden of proof rests with the prosecution. Is there anyone who thinks differently about that, that somehow the defendant has to prove that he is innocent in this case? Is there anyone who feels that way based on that argument? If yes, please, raise your hand. No hands are raised. [¶] Do you all understand that the defendant has no burden of proof in this case? If so, please, raise your hand if you understand that. Let’s see. All hands are raised.”
We agree that the prosecutor’s suggestion that defendant had an obligation to prove he did not commit the crime was misconduct. Nevertheless, it was not prejudicial. The comment was an isolated one. Also, immediately after it was made, defense counsel objected, and the trial court sustained the objection. The court also gave a strong curative admonition and asked the jury if any members believed that defendant had to prove his innocence. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1303 [admonition cured any misconduct].) No juror responded yes. Under these circumstances, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the misconduct.
III. The firearm enhancements.
The trial court imposed a 25-year sentence under section 12022.53, subdivision (d), but it stayed the remaining enhancements under section 12022.53, subdivisions (b) and (c). Defendant now contends that they should have been stricken. We disagree.
Whether lesser enhancements under section 12022.53 should be stricken, stayed or simply not imposed at all is currently pending review in the California Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.
Section 12022.53 provides a range of enhancements to punish firearm use during specified crimes. (§ 12022.53, subd. (b) [10-year enhancement for personal use of firearm], subd. (c) [20-year enhancement for personally and intentionally discharging firearm], subd. (d) [25-years-to-life enhancement for personally and intentionally discharging firearm, proximately causing great bodily injury or death to any person other than an accomplice].) Section 12022.53, subdivision (f), provides: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” But section 12022.53, subdivision (h), provides, “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
Recognizing the apparent conflict between section 12022.53, subdivisions (f) and (h), People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 (Bracamonte), harmonized the two subsections. Bracamonte reasoned: “If viewed in isolation, the language of section 12022.53, subdivision (f) would dictate that the trial court in this case could only impose the 25-year-to-life enhancement . . . and must strike the findings underlying the 10-year . . . and 20-year . . . enhancements. Such construction of section 12022.53, however, would conflict with subdivision (h) of that section . . . . [¶] To harmonize these seemingly conflicting provisions, we conclude that section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. [Citation.]” (Bracamonte, at p. 713; accord, People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.)
Defendant argues that Bracamonte was wrongly decided. He argues that the statutory language and legislative history require that only one firearm enhancement be imposed per count. We are unpersuaded. In our view, Bracamonte was correctly reasoned. Indeed, People v. Oates (2004) 32 Cal.4th 1048, supports Bracamonte’sconclusion. In Oates, albeit in a somewhat different context, the court concluded that failing to impose a section 12022.53, subdivision (d), enhancement where the requirements for the enhancement were met “would, contrary to the command of section 12022.53, subdivision (h), effectively strike the subdivision (d) enhancement allegations and findings . . . .” (Oates, at p. 1057.)
Likewise, here, not imposing enhancements under section 12022.53, subdivisions (b) and (c), would be the equivalent of striking the allegations in violation of subdivision (h). If section 12022.53, subdivision (f), was interpreted to mean that only the longest section 12022.53 enhancement could be imposed, the trial court would be required to strike the remaining section 12022.53 enhancements, in contravention of section 12022.53, subdivision (h)’s prohibition on striking enhancements.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. KITCHING, J.