Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF092265A, SF092265B & SF092265C
BLEASE, J.
This case arises from three separate but related events -- an assault, a murder, and a shooting -- all of which occurred in a single 24 hour period. A jury found defendant Rosetta Denise Jefferson guilty of the first degree murder of Conrad Celestine (Pen. Code, § 187; count I) and assault with a deadly weapon or by means of force likely to produce great bodily injury upon Crystal Knowles (§ 245, subd. (a)(1); count VIII). The jury also found true allegations she used a knife in the commission of the murder and a knife and a taser in the commission of the assault (§ 12022, subd. (b)(1)). She was sentenced to an aggregate term of 30 years to life in state prison.
Unless otherwise specified, further undesignated statutory references are to the Penal Code.
The jury found Jefferson not guilty of two counts of attempted murder (§§ 187, subd. (a), 664; counts II and III), shooting at an occupied vehicle (§ 246; count IV), false imprisonment by violence (§ 236; count V), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count VII).
Jefferson was sentenced to 25 years to life for first degree murder, plus one year for using a knife in the commission of that offense, a consecutive three years for assault, plus one year for using a taser and a knife in the commission of the assault.
The jury found defendant Lacy Lee Miller, Jr. guilty of the second degree murder of Celestine and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count VI) and found true an allegation he used a knife in the commission of the murder. He was sentenced to an aggregate term of 16 years to life in state prison.
The jury found Miller not guilty of two counts of attempted murder, shooting at an occupied vehicle, false imprisonment by violence, dissuading a witness by force or threat, and assault with a deadly weapon or by means likely to cause great bodily injury.
Miller was sentenced to 15 years to life for second degree murder, plus one year for personally using a knife during the commission of that offense, and a concurrent two years for possessing a controlled substance.
The jury found defendant Christopher Michael Williams guilty of the first degree murder of Celestine, false imprisonment by violence of Celestine’s wife Charolett, dissuading Charolett, a witness, by force or threat, assault by means of force likely to produce great bodily injury upon Knowles, and possession of a firearm by a felon (§ 12021, subd. (a); count IX). It also found true allegations he used a handgun in the commission of the murder (§§ 12022.53, subd. (b), 12022.5, subd. (a)) and a knife and a taser in the commission of the assault (§ 12022, subd. (b)(1)). He was sentenced to an aggregate term of 31 years to life in state prison.
To avoid confusion, we refer to Charolett Celestine by her first name. In doing so, we intend no disrespect.
The jury found Williams not guilty of two counts of attempted murder and shooting at an occupied vehicle. We note that there is no evidence Williams used a knife in the commission of the assault. There is, however, ample evidence he used a taser. He does not contend otherwise.
Williams was sentenced to 25 years to life for first degree murder, a consecutive four years (the purported middle term) for false imprisonment by violence, a consecutive one year (one-third the middle term) for assault with a deadly weapon or by means of force likely to cause great bodily injury, plus one year for using a taser and knife in the commission of the assault, a concurrent two years for being a felon in possession of a firearm, and a concurrent three years for dissuading a witness by force or threat. The court stayed imposition of sentence for the enhancements associated with the murder.
All three defendants challenge the sufficiency of the evidence to support their murder convictions and raise a number of other issues related to those convictions. We shall conclude that none of those issues warrant reversal. Jefferson and Williams also contend, and the People concede, that the trial court erred in sentencing them. We shall affirm the judgment against Miller. We shall modify the judgment against Jefferson by striking the one-year enhancement imposed pursuant to section 12022, subdivision (b) on count VIII (assault with a deadly weapon or by means of force likely to cause great bodily injury) and affirm the judgment as modified. We shall modify the judgment against Williams by imposing a consecutive three-year term for count VIII and a consecutive eight months for count V (false imprisonment by violence) and striking the one-year enhancement imposed pursuant to section 12022, subdivision (b) on count VIII and affirm the judgment as modified.
Each defendant joins in the arguments of the other defendants that may benefit him or her.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
At all relevant times, defendants lived at Jefferson’s home on Burlington Place in Stockton. Jefferson and Miller are siblings, and Jefferson and Williams were boyfriend and girlfriend. Miller, who was separated from his wife, split his time between Jefferson’s home and his wife’s home.
On February 10, 2006, Jefferson went to Las Vegas to visit Williams, who was there visiting his father and promoting an album. Jefferson asked Celestine, her neighbor and long time friend, and Knowles, her neighbor, to house sit for her while she was gone.
When Miller arrived at Jefferson’s home on February 12, 2006, he noticed that things had been moved around and some of his clothes and a lighter were missing. When he confronted Knowles and Celestine, each blamed the other and an argument ensued. When Knowles’ sister attempted to intervene, Celestine shoved her over a table. Miller told Celestine, “Cousin, you trippin’, you better calm down,” and Celestine responded that he was going to “kick [Miller’s] ass.”
Jefferson and Williams returned to Jefferson’s home at approximately 3:00 a.m. on February 14, 2006. Jefferson noticed the furniture had been rearranged; her bedroom sheets were soiled; and various items were missing, including a piggy bank, some “rare” and “fancy” coins, and her daughter’s Pokemon card collection. Both she and Williams were upset. Miller told Jefferson that Knowles and Celestine each blamed the other for what had transpired at Jefferson’s home in her absence.
Later that afternoon, Jefferson stopped by Knowles’ home and told her she needed her help. Knowles agreed and accompanied Jefferson to Jefferson’s home. When they arrived, Miller and Williams were there. As Knowles entered, Jefferson “stunned [her] to the ground” with a taser. Jefferson continued to stun her, while calling her names and accusing her of taking Jefferson’s property. Jefferson stunned Knowles over 50 times. At one point, Jefferson jabbed Knowles in the face with the taser and a metal prong broke off in her eye. Jefferson also held a knife to Knowles’ face and told her that she was “lying” and that Jefferson was going to “stick” her. Jefferson cut Knowles on her chest, arm, and leg. Williams threw water on Knowles and stunned her at least twice. When Knowles’ sister attempted to intervene, Williams told her to stop or “[b]oth of you bitches would be dead.”
Knowles eventually told Jefferson that Celestine had let people into Jefferson’s home while Jefferson was away. She said Celestine was in Jefferson’s bedroom with some “bitch” and acknowledged smoking “dope” in Jefferson’s bedroom. Jefferson and Williams argued over whether to kill Knowles or let her go. Jefferson wanted to kill her, but Williams said they should let her go. They ultimately agreed to let her leave if she promised to “keep [her] mouth shut....” They told her that they would kill her family if she went to the police.
That evening, Jefferson telephoned Celestine’s home and asked to speak to Celestine. Upon being advised Celestine was unavailable, she told Celestine’s stepson that property was missing from her home and that “if it didn’t show up the niggers would be falling.”
Later that same night, Jefferson again telephoned Celestine’s home and told Charolett to “tell [Celestine] it’s on, it’s on.”
At approximately 9:30 a.m. the following morning (February 15, 2006), Miller telephoned Celestine’s home and told Celestine that he was coming over to get Jefferson’s keys. A short time later, Miller rang the doorbell, and Celestine let him in. As Celestine did so, Jefferson and Williams came around the corner and entered behind Miller.
Jefferson was holding a knife in her hand. Celestine told her, “You could have came and got your keys” and to “[q]uit playing.” Jefferson told Celestine that she was not “playing,” and that he was going to tell her who was in her house. Celestine responded that he did not know what she was talking about. Jefferson stabbed Celestine in his side and yelled, “You going to tell me who was in my house.” Charolett ran for the door, but Williams blocked the doorway and grabbed her by the arm. Charolett called out Jefferson’s name and pleaded with her not to “do this.” Williams responded, “Up, you said her name, now I got to kill him,” and held up a gun. By this time, Celestine was laying on the floor in the fetal position, attempting to block Jefferson and Miller’s blows with his legs and arms. Jefferson stabbed him again, while Miller told him to “Just tell her who got it, tell her where it is.” Miller then began “slicing and poking” Celestine with “some ninja-like” three-bladed knife while Jefferson stabbed him “nonstop” as blood poured out of his side and mouth. When Charolett pleaded with Jefferson not to kill Celestine, Jefferson responded, “This motherfucker is going to die. You going to die.” Meanwhile, Williams kept saying, “I’m going to shoot him. Let me just kill him. Let’s just get it over with. Let me just kill him.”
Once they finished stabbing and cutting Celestine, Miller and Jefferson took turns kicking him in the head. Thereafter, Williams kicked Celestine in the side “and his body jumped, and then his... limbs relaxed and went flat, and... his eyes roll[ed] back in his head.” At that point, Miller said, “That’s enough,” and defendants walked out the door.
Moments later, Miller and Williams returned. Miller accused Charolett of calling someone for help, explaining that “there’s a truck out there, some people in a truck.” Williams told Charolett, “If I see any police or anything here, I’ll be back to finish the job to kill everybody in the house.” When Charolett asked if she could call an ambulance, Williams responded, “No. Let that motherfucker die.”
Shortly after defendants left, Charolett heard a series of gun shots, ran outside, and saw a truck take off and drive through two fences. Meanwhile, she telephoned 9-1-1 and told them she needed an ambulance but not to send the police because she feared Williams would make good on his threat.
Celestine was stabbed eight times; four of the stab wounds were potentially fatal. Two of the potentially fatal wounds were inflicted in Celestine’s chest, a third was inflicted under his arm, and a fourth was to his scrotum. The stab wound under his arm was four and one-half inches deep. The knife went through his rib cage, fractured a rib, penetrated his right lung, and caused massive internal bleeding. One of the stab wounds to his chest was three and one-half inches deep and also went through his rib cage and penetrated his right lung. The other stab wound to his chest was two inches deep. It entered his chest cavity but did not penetrate his lung. The stab wound to his scrotum was two and one-half inches deep and severed the “spermatic artery and vein.” In addition to the stab wounds, Celestine had 12 nonfatal “incised” wounds, which were caused by a cutting or slicing action, as opposed to a stabbing motion. He also had multiple blunt force injuries. Toxic levels of methamphetamine were found in his blood. According to the pathologist, “amphetamines can produce aggressive behavior and even toxic psychosis, brief craziness, violence and so forth.”
The pathologist concluded Celestine died as a result of “[s]hock and hemorrhage due to multiple stab wounds.” The four potentially fatal stab wounds were not caused by the ninja-like knife used by Miller. That knife, however, easily could have caused the incised wounds.
On February 15, 2006, Andrew Lewis and Ashlyn Artis were sitting in a pickup truck outside Celestine’s home when they saw defendants walking past them. One of the defendants told Lewis and Artis “to stay away from there or don’t come around here.” Lewis and Artis left but returned a few minutes later. As they pulled up, they saw defendants standing in the street. Jefferson began yelling at them, and a few seconds later, someone began shooting at the truck. Lewis depressed the accelerator with his foot while attempting to shield Artis with his body. A number of bullets went through Lewis’ jeans, but none entered his body. Artis was shot in the arm and chest.
Defendants fled the scene. Miller and Williams were found hiding in the backyard of a nearby residence and were taken into custody. Miller possessed 7.66 grams of methamphetamine.
B. The Defense
Both Miller and Williams testified in their own defense. Jefferson did not.
1. Miller
On the morning of February 15, 2006 (the day of Celestine’s murder), Jefferson asked Miller if he had seen or heard from Celestine. Miller said, “No,” and immediately thereafter, telephoned Celestine and told him he was going to stop by and retrieve Jefferson’s key. When Miller told Jefferson he was going to Celestine’s, she told him to “hold up” because she wanted to go to the store, which was near Celestine’s home. When Jefferson was ready to go, Williams was with her, and the three of them walked to Celestine’s house. There was no discussion on the way there, and Miller did not see Jefferson or Williams with any weapons. As they neared Celestine’s house, they walked by the truck occupied by Lewis and Artis, and Lewis gave them a threatening look. When they reached Celestine’s house, Miller rang the bell and told Jefferson and Williams to wait outside because he “didn’t want no fussing [or] arguing.” Celestine answered the door and Miller went inside. Miller saw Jefferson’s ninja-like knife on the entertainment center and confronted Celestine about taking things from Jefferson’s home. Celestine began screaming at Miller, and Jefferson went inside and began screaming at Celestine to “give me my keys.” Celestine grabbed a gun off the entertainment center and started to point it at Miller. Miller hit Celestine in the face, and Celestine dropped the gun and fell to his knees. As Celestine went to pick up the gun, Miller grabbed the ninja-like knife. When Miller turned back around, Celestine had the gun pointed at him. At that point, Jefferson stabbed Celestine in his side, and Miller began “swinging” the ninja-like knife. Miller could not recall anything after that point in time. The next thing he recalled was being ordered to “get down” by police. Dr. Robert Hart, the medical director of Behavioral Health Services and the director of the psychiatric program at the county jail, attributed Miller’s inability to remember to post-traumatic stress disorder.
Miller was aware of violent incidents in Celestine’s past and knew Celestine “could react in a violent fashion.” He had “heard about shootings and about [Celestine]... hitting a certain woman and making her do stuff” at gunpoint. Miller also observed Celestine push Knowles’ sister over a table.
In 1990, Celestine threatened a woman with a gun and thereafter was not “crime free.”
2. Williams
Williams was present when Jefferson stunned Knowles, but it was not something he expected to happen. He urged Jefferson to take Knowles in the back bedroom so that they could talk calmly. While in the bedroom, Jefferson slapped Knowles, “but nobody else did anything... to her, no kicks, no broken noses.” Williams denied stunning or striking Knowles or threatening her or her family. He threw water on Knowles because she said she was thirsty. When he did so, he believed Jefferson was done stunning her; he was not trying to electrocute her. At some point, Jefferson “poked” Knowles with a knife. Williams did not attempt to stop Jefferson other than eventually telling her to “[c]ut it out, let her go.” After Knowles left, Williams went to a friend’s house.
During cross-examination, Williams acknowledged Jefferson punched Knowles in the face.
On direct examination, Williams testified that Jefferson waved a knife at Knowles, but it did not appear that she was poking her with it. On cross-examination, however, he admitted seeing Jefferson “poke [Knowles] in the skin.”
Williams returned to Jefferson’s home around 10:00 p.m. that night and learned Jefferson had been attempting to contact Celestine while he was gone. Jefferson was pretty upset.
The next morning, Jefferson was anxious to get her keys from Celestine, and Williams agreed to accompany her and Miller to Celestine’s home. He denied bringing any weapons with him or knowing that Miller and Jefferson were armed. Williams went to Celestine’s home to retrieve Jefferson’s keys; he did not go there intending to assault anyone.
When they arrived, Jefferson and Miller went inside while Williams remained outside with Charolett. Williams could hear people arguing but did not go inside because he “had no business in that conversation.” When the argument turned physical, he ran inside. He saw a gun on the floor and immediately picked it up. He also saw Celestine on his back attempting to fight off Miller and Jefferson as they stabbed and cut him. As soon as Williams picked up the gun, Charolett pulled him out of the house. Williams told Jefferson and Miller to come out, and they did. Williams denied striking Conrad, threatening anyone, or preventing Charolett from going anywhere.
Williams told Charolett, “No, don’t call the police. It’s not going to do any good for anybody,” including Celestine. At the time, he believed Celestine “was beat up.” He did not know Celestine was “mortally wounded at all.” He told Charolett she could call an ambulance.
As defendants were leaving, Williams saw the truck occupied by Lewis and Artis “making a slow left-hand turn” and Lewis pointing a gun at him. Jefferson screamed, “He got a gun,” and Williams began shooting at the truck. The truck took off, and Williams began running. He threw the gun into a garbage can and returned to Jefferson’s house. Soon thereafter, he heard the police arrive, and he and Miller climbed out a back window and hopped the fence.
C. Rebuttal
In June 2000, police responded to a 9-1-1 hang up call at Miller’s home. When they arrived, Miller’s wife reported that Miller had shoved her several times, hit her in the face, and stuck their baby on the head while trying to hit her.
In December 2002, police responded to a report of a domestic disturbance. Miller’s wife told officers that Miller threatened to kill her after she accepted a ride to work from a male friend.
DISCUSSION
I.
Defendants’ Murder Convictions Are Supported
By Sufficient Evidence
All three defendants contend their murder convictions are not supported by sufficient evidence. In addressing defendants’ contentions, we view the entire record in the light most favorable to the judgments and presume in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Golde (2008) 163 Cal.App.4th 101, 108.)
A.
Jefferson
Jefferson contends her first degree murder conviction must be reduced to second degree murder because the evidence is insufficient to prove premeditation and deliberation. She argues the evidence, “at best, demonstrated that [she] killed Celestine while trying to extract information f[rom] him about her property.” We disagree.
“All murder which is perpetrated... by any... kind of willful, deliberate, and premeditated killing... is murder of the first degree.” (§ 189.) In the context of first degree murder, “‘[t]he word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123, quoting CALJIC No. 8.20 with approval.) “Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection.” (People v. Cook (2006) 39 Cal.4th 566, 603.)
In People v. Anderson (1968) 70 Cal.2d 15, 27, the California Supreme Court articulated factors to consider in assessing the sufficiency of evidence to prove that a murder was premeditated and deliberate. “[T]he Anderson court identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) However, the court later emphasized that “[t]he Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (Ibid.)
As we shall explain, from the evidence presented, the jury reasonably could have inferred that Jefferson went to Celestine’s home intending to kill him as punishment for allowing people into her home while she was gone and to abscond with her property. As so viewed, the evidence is sufficient to support the jury’s findings of premeditation and deliberation.
Evidence of planning is shown by the fact that Jefferson armed herself with a knife before going to Celestine’s home and was accompanied by Williams and Miller, both of whom were armed. It is further shown by her statement to Charolett that she “came to do it now” because she knew Charolett’s children would be at school. As for motive, Jefferson was extremely upset about what had transpired at her home in her absence. She stunned and cut Knowles until Knowles fingered Celestine as the responsible party. Thereafter, she telephoned Celestine’s home and told his stepson that “niggers would be falling” if her property was not returned and told Charolett to tell Celestine “it’s on.” The manner of the killing also indicates that it was premeditated and deliberate. Jefferson stabbed Celestine while he was unarmed. Celestine immediately fell to the ground, and Jefferson continued to stab him seven more times as he laid on his back attempting to defend himself. Moreover, the placement and depth of the wounds is inconsistent with Jefferson’s assertion that the evidence, at most, established she was simply attempting to extract information from Celestine. She stabbed Celestine twice in the chest, a particularly vulnerable area, and the fatal stab wounds ranged from two to four and one-half inches deep. Furthermore, during the attack, Jefferson repeatedly stated that she was going to kill Celestine and that he was going to die.
Accordingly, there is ample evidence to sustain Jefferson’s first degree murder conviction.
B.
Miller
Miller contends there is insufficient evidence to support his conviction for second degree murder under either a direct perpetrator or aider and abettor theory. We disagree.
Miller first asserts that the record shows that the jury prefaced its verdict on a finding that he was a direct perpetrator, and because it is undisputed that his knife did not cause any of the fatal wounds, his conviction for second degree murder must be reversed. Quoting People v. McCoy (2001) 25 Cal.4th 1111, 1118, Miller notes that “‘outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.’” Because the jury found him guilty of second degree murder and Jefferson (the direct perpetrator) guilty of first degree murder, Miller argues that the jury necessarily found that his mental state was not “at least” that required of the direct perpetrator. Thus, Miller concludes, the jury must have found that he was a direct perpetrator. He is mistaken.
“[A] trier of fact has and often exercises the power, because of obvious extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree or class of crime than that shown by the evidence.” (People v. Powell (1949) 34 Cal.2d 196, 205, fn. omitted.) Thus, we shall not assume, as Miller urges, that the jury concluded he did not share Jefferson’s murderous intent, and therefore necessarily convicted him as a direct perpetrator.
Miller also asserts that a question from the jury demonstrates that it convicted him as a direct perpetrator. Not so. On August 2, 2007, the jury asked, “If we find [one] defendant guilty of 1st degree murder & [one] of 2nd degree murder, must we find an aider & abettor guilty of 1st or 2nd degree murder? Or can we consider manslaughter?” The court responded that the jury need not find an aider and abettor guilty of first or second degree murder, and that it could consider manslaughter. According to Miller, “the jury’s question reveals the jury convicted [him] as a direct perpetrator.... because (1) the... question arose only after the jury had already decided one defendant was guilty of second degree murder; (2) [Miller] was the only defendant convicted of second degree murder; and (3) the jury’s question was dated the same day as [his] verdict, August 2[, 2007].” The jury’s question begins with the word “[i]f” -- “If we find [one] defendant guilty of 1st degree murder & [one] of 2nd degree murder....” (Italics added.) Thus, it is not at all clear that the jury already had decided one defendant was guilty of second degree murder when it posed the question. If anything, the use of the word “if” suggests that it had not yet reached a verdict on the murder charges as to any of the defendants. Accordingly, the jury’s question does not establish Miller was convicted as a direct perpetrator of Celestine’s murder.
Because the record does not indicate the jury prefaced its verdict on an inadequate ground, we may affirm the judgment so long as a valid ground for the verdict remains. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.”].)
We assume for argument’s sake that there is no substantial evidence that Miller was a direct perpetrator of Celestine’s murder.
“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) “[A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.’” (People v. Prettyman, supra, 14 Cal.4th at p. 259.) As we shall explain, there is overwhelming evidence Miller was aware of and shared Jefferson’s murderous intent and aided her in the commission of Celestine’s murder.
Miller knew Jefferson was extremely upset over what had transpired at her home in her absence. He witnessed Jefferson brutally attack Knowles in an attempt to learn what had gone on at her home while she was away. He knew Knowles blamed Celestine for what had transpired. He was at Jefferson’s home when she told Celestine’s stepson that “niggers would be falling” if her property was not returned. Shortly before defendants went to Celestine’s home, Miller told Celestine that he was coming over to retrieve Jefferson’s keys. Thereafter, all three defendants arrived at Celestine’s home, and all three were armed. Miller began “slicing and poking” Celestine with a knife after Celestine was on the floor and continued assaulting Celestine after Jefferson stated she intended to kill him. Miller inflicted at least one dozen incised wounds.
Miller’s conviction for second degree murder conviction is supported by sufficient evidence.
Because we conclude there was sufficient evidence to convict Miller as a “straight” aider and abettor, we need not consider his contention that “the natural and probable consequences doctrine was inapplicable” to him because the prosecutor argued it only in relation to Williams.
C.
Williams
Williams contends his “first degree murder verdict was premised on no evidence of premeditation and deliberation.” He asserts that “[n]o evidence was introduced that any plan was in play about what was to be done upon arrival at [Celestine’s] residence, let alone discussed, except presumably a plan to learn where Ms. Jefferson’s missing property was and who was responsible for its disappearance, and to retrieve her house keys.” We disagree with this self-serving view of the facts adduced at trial.
As previously discussed, there is substantial evidence Jefferson intended to kill Celestine and that she premeditated and deliberated the murder. (Ante, at p. 18.) As we shall explain, there is substantial evidence Williams, like Miller, knew of and shared Jefferson’s murderous intent, and thus, was guilty as an aider and abettor for Celestine’s murder.
Williams and Jefferson were upset over what had transpired at Jefferson’s home in her absence. Williams went to Celestine’s home armed with a gun, along with Jefferson and Miller, who were armed with knives. As Jefferson and Miller stabbed and cut Celestine, Williams stood by the door, prevented Charolett from leaving and seeking assistance, threatened to shoot Celestine when Charolett moved toward him, and repeatedly stated, “I’m going to shoot him. Let me just kill him. Let’s just get it over with. Let me just kill him.” When Jefferson and Miller were finished stabbing Celestine and defendants were about to leave, Charolett asked if she could call an ambulance. Williams said, “No. Let that motherfucker die.” Williams’ conduct and statements before, during, and after the attack provide overwhelming evidence he shared Jefferson’s murderous intent and aided and facilitated Celestine’s murder.
II.
The Jury Was Properly Allowed To Consider The Natural And Probable Consequences Doctrine
Miller contends the jury instructions erroneously permitted him to be found guilty of murder without malice. He argues that “[w]hen the intended crime is assault with a deadly weapon, and the unintended crime is murder, the natural and probable consequences doctrine does not apply unless the accomplice has malice aforethought....” “Because the jury was permitted to convict [him] of second degree murder under the natural and probable consequences doctrine without a finding of [his] malice aforethought,” he contends his conviction must be reversed. Miller fails to recognize the nature of the natural and probable consequences doctrine.
The jury was instructed in pertinent part in the language of CALCRIM Nos. 400 (modified) and 401. (Post, at pp. 25-26.)
Under the natural and probable consequences doctrine, “‘A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.’” (People v. Medina (2009) 46 Cal.4th 913, 920.) The natural and probable consequences doctrine “allows an aider and abettor to be convicted of murder, without malice....” (People v. Culuko (2000) 78 Cal.App.4th 307, 322, italics added.) As our Supreme Court recently observed: “[W]e have previously rejected the argument, advanced by defendant here, that the natural and probable consequences doctrine unconstitutionally presumes malice on the part of the aider and abettor.” (People v. Richardson (2008) 43 Cal.4th 959, 1021; see also People v. Garrison (1989) 47 Cal.3d 746, 777–778; People v. Bunyard (1988) 45 Cal.3d 1189, 1231–1232; People v. Culuko, supra, 78 Cal.App.4th at p. 322 [“The [California] Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice.”].) Accordingly, Miller’s argument that the jury instructions concerning the natural and probable consequence doctrine erroneously permitted him to be found guilty of murder without a finding a malice fails.
III.
The Jury Was Properly Instructed With CALCRIM No. 400
Williams contends CALCRIM No. 400, with which the jury was instructed, “improperly equated [his] own mental state with the mental state of the direct perpetrator,... Jefferson,” and as a result, “required the jury to convict an aider and abettor of first degree murder if the perpetrator committed a premeditated murder, regardless of individual mental state.” He is mistaken.
The court instructed the jury with the following modified version of CALCRIM No. 400 (Aiding and Abetting: Intended Crimes): “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided or abetted someone else who committed the crime. In these instructions, I’ll call the other person the perpetrator. The person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establish[es] aiding and abetting of one crime, here assault with a deadly weapon, the person may also be found guilty of other crimes that occurred during the commission of the first crime if the other crime[s] were the natural and probable consequences of the initial crime. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” (Italics added.)
Thereafter, the jury was instructed in the language of CALCRIM No. 401 in pertinent part as follows: “To prove a defendant is guilty of a crime based on aiding and abetting, the People must prove: [¶] One, the perpetrator committed the crime; two, [d]efendant knew the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime.”
Considering the jury instructions as a whole, the jury certainly understood that to find Williams guilty of murder as an aider or abettor it must find either that (1) Williams knew Jefferson intended to kill Celestine and intended to aid and abet in the commission of the murder, or (2) Williams knew Jefferson intended to assault Celestine with a deadly weapon, intended to aid and abet in the commission of that offense, and that a reasonable person in Williams’ position would have known that a premeditated and deliberate murder was a natural and probable consequence of the commission of the intended offense.
Moreover, Miller’s conviction for second degree murder demonstrates that the jury understood that it was not “required... to convict an aider and abettor of first degree murder if the perpetrator committed a premeditated murder, regardless of individual mental state,” as Williams contends. Indeed, as previously discussed, the jury asked, “If we find [one] defendant guilty of 1st degree murder & [one] of 2nd degree murder must we find an aider & abettor guilty of 1st or 2nd degree murder? Or can we consider manslaughter?” The court responded that the jury need not find the aider and abettor guilty of first or second degree murder, and that it could consider manslaughter.
Because we conclude the jury was properly instructed with CALCRIM No. 400, we need not consider Williams’ claim that his trial counsel was ineffective in failing to object to the giving of that instruction.
IV.
Miller Was Not Prejudiced By The Introduction Of Evidence Concerning His Competency Evaluations
Miller contends the trial court violated his Fifth Amendment privilege against self-incrimination and the judicially-declared rule of immunity when it allowed the prosecutor to cross-examine Dr. Hart concerning the findings of two court-appointed mental health professionals, Dr. Kent Rogerson and Dr. Gary Cavanaugh, who determined Miller was competent to stand trial. The People respond that Miller forfeited the issue by failing to raise it below. We agree.
Miller called Dr. Hart to explain the gap in Miller’s memory. Dr. Hart testified that Miller’s inability to recall certain events was the result of post-traumatic stress disorder. On cross-examination, the prosecutor asked Dr. Hart if he would “want to know if other doctors had seen [Miller] and concluded that he’s a malingerer, he makes this up?” Miller, through his counsel, objected, arguing that “the issues in the [section ] 1368 proceeding.... [are] different... than what’s before this jury.” He did not object on the ground that such evidence violated the judicially declared rule of immunity or the Fifth Amendment. By failing to do so, he forfeited those issues on appeal. (People v. Weaver (2001) 26 Cal.4th 876, 961.) Anticipating our conclusion, he contends his trial counsel rendered ineffective assistance of counsel by failing to object to the introduction of the challenged evidence on those grounds. We disagree.
To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of counsel’s act or omission. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) Prejudice exists where there is a “‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Id. at p. 611, quoting In re Sixto (1989) 48 Cal.3d 1247, 1257.) As we shall explain, counsel’s alleged error did not prejudice Miller. In light of our conclusion, we need not consider whether counsel’s performance was deficient. (See People v. Huggins (2006) 38 Cal.4th 175, 248-249.)
During cross-examination, Dr. Hart acknowledged he would be interested in knowing whether other doctors had examined Miller and concluded he was a malingerer. The prosecutor then questioned Dr. Hart about Dr. Rogerson’s and Dr. Cavanaugh’s reports and their conclusions that defendant was malingering. During closing argument, the prosecutor asserted that “if [Miller] will make a conscious decision to send the doctor in the wrong direction, why would he not try to send you in the wrong [direction]? You mean nothing to him.”
Miller argues the evidence concerning Dr. Rogerson’s and Dr. Cavanaugh’s findings “permitted the jury to infer that [his] self defense claim was contrived....” On this record, however, there is no reasonable probability the jury would have concluded Miller acted in self-defense even absent such evidence.
“Self-defense negates culpability for assaultive crimes,” including murder. (People v. Adrian (1982) 135 Cal.App.3d 335, 340; § 197.) To justify acting in self-defense, the defendant must: (1) have reasonably believed he was in imminent danger of suffering bodily injury; (2) have reasonably believed he must use immediate force to defend against the danger; and (3) have used no more force than was reasonable under the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065; see also §§ 197, 198.) “[D]eadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury....” (People. v. Clark (1982) 130 Cal.App.3d 371, 380.)
Here, it is undisputed that Miller poked and sliced Celestine while Celestine lay unarmed on the floor attempting to defend himself with his arms and legs. Even assuming Celestine retrieved a gun from the entertainment center as Miller asserted at trial, there is no evidence Celestine possessed the gun while Miller was assaulting him with a knife. To the contrary, Williams testified that he entered Celestine’s home seconds after he heard a scuffle, saw the gun on the floor, and picked it up. At the same time, he observed Jefferson and Miller stabbing Celestine. Once Celestine was disarmed and laying in the fetal position, Miller could no longer entertain the belief that Celestine constituted an imminent and deadly peril to him, and Miller’s right to use deadly force in self-defense ended at that moment. (See People v. Hardin (2000) 85 Cal.App.4th 625, 634, fn. 7 and cases cited therein.)
Nor is it reasonably probable the jury would have concluded Miller acted in imperfect self-defense had the challenged evidence been excluded. “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Miller had no recollection of what happened once he began “swinging” the knife. While Miller knew Celestine could be violent, it is undisputed Celestine was unarmed and on the ground when Miller began attacking him with a knife. Moreover, as Miller poked and sliced Celestine, he told Celestine to “Just tell her who got it, tell her where it is.” Such statements are inconsistent with Miller’s claim that he believed he was in imminent and deadly peril. Furthermore, Miller’s actions following the incident -- running and hiding from police -- are also inconsistent with someone who believed he had acted in self-defense. On this record, there is no reasonable probability the jury would have found Miller actually believed he needed to defend himself at the time he repeatedly sliced and poked Celestine with a knife.
We granted Miller’s request to withdraw his argument in his opening brief that the trial court erred in failing to sua sponte instruct the jury on attempted murder.
V.
Defendants Were Not Prejudiced By The Prosecutor’s Comments Concerning Celestine’s Character For Violence
Jefferson contends the prosecutor committed misconduct during closing argument by suggesting Celestine had committed a single act of violence during his lifetime and asserting Celestine was never arrested in connection with that incident when the prosecutor knew that was not the case. As we shall explain, any misconduct was harmless.
At trial, Jefferson sought to introduce evidence of Celestine’s character for violence pursuant to Evidence Code section 1103, subdivision (a)(1) in support of her defense that she acted in self-defense and in defense of others when she stabbed Celestine. In particular, she sought to introduce evidence that in 1990, Celestine assaulted and threatened a woman with a sawed-off shotgun. The trial court ruled that general information about the incident was admissible.
Evidence Code section 1103, subdivision (a) provides in pertinent part: “In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
At trial, one of the officers who responded to the incident testified that “at one point [Celestine] had a gun pointed to the head of [a woman]” and “was threatening to do her physical harm....” The officer also testified that Celestine was not “crime free” in the 17 years following the incident.
During his rebuttal argument, the prosecutor stated that the defense “tried to paint Conrad Celestine as this animal, this monster, when in fact, we have one act of violence when he was 23 years old back in 1990. No evidence he was ever even arrested for it.... No evidence he even got arrested for it, and no evidence he got convicted of anything related to that or anything connected to that offense whatsoever. We just know he went to state prison for drugs. And then Charolett said, yeah, ‘I heard rumors of violence.’ If she’s referring to [the] 1990 incident or not is unclear. But that’s it for [Celestine]. [¶]... [¶] So in [Celestine’s] case, you sit here and think, ‘Man, this guy must have been a monster,’ and yet, one act of violence for which he was never arrested or convicted, one state prison commitment for drugs....”
Jefferson, through her trial counsel, objected, arguing the prosecutor was misleading the jury by suggesting the 1990 incident was the sole act of violence ever committed by Celestine and asserting Celestine was never arrested as a result of that incident when the prosecutor knew that was not the case. The court observed that the prosecutor “did say, ‘and that’s it,’ and opined like [Celestine] didn’t have anything else.” Jefferson requested the court review Celestine’s record and “comment about the number of incidences he had involving violence and other criminal activity.” The court declined the request, and instead admonished the jury that “the only part of the argument that’s admissible is that [Celestine] went to prison for drugs, and just, apparently recently, got out [and] the ’90 incident where he put a gun to the girl’s head. The fact that [the prosecutor] said, ‘that’s it,’ is stricken and you’re not to consider it for the record at all.”
The arrest report for the 1990 incident and Celestine’s rap sheet, both of which were admitted as court exhibits, reflect that Celestine was arrested as a result of the 1990 incident and charged with, among other things, assault with a deadly weapon (§ 245, subd. (a)(1)). According to the rap sheet, however, that charge was later dismissed. The rap sheet further reflects that Celestine was convicted of misdemeanor battery (§ 242) in 1986, 1987, and 1993 and misdemeanor infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) in 2003. The facts underlying those offenses were not contained in the record.
“‘“[T]he least touching” may constitute battery.... [I]t need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’ [Citations.]” (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) Thus, Celestine’s convictions for misdemeanor battery, without more, are not evidence of additional acts of violence. However, Celestine’s prior conviction for misdemeanor infliction of corporal injury on a spouse or cohabitant, which requires the corporal injury result in a “traumatic condition,” does constitute evidence of an additional act of violence. (§ 273.5, subd. (a).) Accordingly, it was improper for the prosecutor to suggest Celestine had committed just a single violent offense and had not been arrested in connection with that offense. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1104-1105.) This conclusion does not, however, require reversal of the judgment.
Jefferson’s assertion that defendants were precluded from introducing evidence of additional acts of violence is not supported in the record.
Prosecutorial misconduct results in a reversal only if a reviewing court is convinced it is reasonably probable a result more favorable to the defendant would have occurred had the prosecutor not made the complained of remarks. (People v. Milner (1988) 45 Cal.3d 227, 245-246.) We conclude there is no prejudicial prosecutorial misconduct here.
The jury was admonished to disregard the prosecutor’s statement, “that’s it,” and only to consider his statements that Celestine went to prison for drugs and was recently released and “the ’90 incident where he put a gun to the girl’s head.” Moreover, the jury was well aware of Celestine’s potential for violence. In addition to evidence that Celestine assaulted a woman with a sawed off shotgun in 1990, the jury heard evidence that Celestine pushed Knowles’ sister over a table and threatened to “kick [Miller’s] ass” just days before his murder. Both Charolett and Miller testified that they were aware of Celestine’s general reputation for violence. In addition, the jury was informed that Celestine had toxic levels of methamphetamine in his blood at the time of his death, which could have caused him to act aggressively and violently.
To the extent the prosecutor’s argument was inconsistent with the evidence, the jury was instructed that “[n]othing the attorneys say is evidence,” including “[t]heir opening statements or closing arguments”, and we assume the jury followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
On this record, it is not reasonably probable defendants would have received a more favorable result at trial had the prosecutor not suggested the 1990 incident was the only act of violence in Celestine’s past or asserted Celestine was not arrested as a result of that incident.
VI.
The Verdict Finding Williams Guilty of First Degree
Murder Was Not Coerced
Williams contends the trial court effectively coerced a verdict on count I (murder) by instructing the jury to “[c]ontinue [deliberating] till you all drop” thereby violating his right to due process of law. While the trial court used some poorly chosen language, we conclude that its instruction did not impermissibly coerce the verdict.
At 11:40 a.m. on August 8, 2007, the fifth day of deliberations, the jury sent the trial court the following question: “We have found a defendant guilty of murder. We are split 8-4 between 1st & 2nd degree with no movement -- What are our options?” The trial court apparently provided the jury with the following written response: “Continue trying till you all drop.” Thereafter, the jury continued deliberating and recessed for the evening at 4:00 p.m. At 10:35 a.m. the next morning, the jury notified the court that it had reached a verdict.
There is no mention of the jury’s question or the trial court’s response in the court’s minutes for August 8, 2007, or the reporter’s transcript. The record contains only the jury’s written question, and the court’s written response.
Because the verdict finding Miller guilty of second degree murder was signed on August 2, 2007, and the verdicts finding Jefferson and Williams guilty of first degree murder were signed on August 8 and 9, 2007, respectively, Williams argues “the jury was hung on the degree of murder for Mr. Williams or Ms. Jefferson, or both.”
We note that the verdict finding Jefferson guilty of first degree murder was signed on August 2, 2007 (not August 8), as Williams contends. In light of this fact, we presume Williams to argue that the jury was hung on the degree of murder for Williams at the time it submitted its question.
Pursuant to section 1140: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” “‘The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.” [Citation.]’ [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case.” (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
In People v. Gainer (1977) 19 Cal.3d 835, 852, our Supreme Court held that “it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” (Fn. omitted.) “Such a displacement may be the result of statements by the court constituting undue pressure upon the jury to reach a verdict, whatever its nature, rather than no verdict at all.” (People v. Carter (1968) 68 Cal.2d 810, 817.)
Nothing in the court’s instruction can be construed as creating the impression the court favored a particular outcome. Moreover, when considered in context, it is plain that the court’s instruction did not place undue pressure on the jury to reach a verdict to avoid a hung jury. After receiving the court’s response, the jury recessed for the evening at 4:00 p.m. without reaching a verdict. Thus, the jury did not construe the instruction literally, i.e. that it was to continue deliberating until it reached a verdict or dropped. Furthermore, the court did not state or imply that if the jury failed to agree the case would necessarily be retried. In light of the lengthy trial, the number of witnesses, and relatively short period of deliberations given the number of defendants and issues to be decided at the time of the impasse, the trial court’s direction to continue deliberations could only have been perceived by the jury as giving them an opportunity to enhance their understanding of the case, rather than as pressure to reach a verdict. (People v. Pride (1992) 3 Cal.4th 195, 265.) The jury availed itself of this opportunity by requesting the reading of testimony from one of the witnesses.
For the reasons stated above, the trial court did not coerce the verdict.
VII.
The Section 12022, subdivision (b) Enhancements
Imposed On Count VIII Must Be Stricken
Jefferson contends the trial court erred in imposing a one-year enhancement pursuant to section 12022, subdivision (b) (use of a deadly or dangerous weapon) on count VIII (assault with a deadly weapon or by means of force likely to produce great bodily injury) because use of a deadly weapon is an element of that offense. The People concede the enhancement must be stricken as to Jefferson and note that because Williams received the same enhancement for count VIII, his sentence also must be corrected. We agree.
Pursuant to section 12022, subdivision (b)(1), “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (Italics added.)
As we have noted, Jefferson and Williams assaulted Knowles by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) by tasing and stabbing her with dangerous and deadly weapons (a taser and a knife). Therefore, their use of the dangerous and deadly weapons was not an additional factor, above and beyond the elements of section 245, subdivision (a)(1) which would permit imposition of a weapon use enhancement under section 12022, subdivision (b). Accordingly, the exception to the imposition of a weapon use enhancement set forth in section 12022, subdivision (b) applies. (See People v. McGee (1993) 15 Cal.App.4th 107, 116.) Therefore, the trial court erred by imposing consecutive one-year terms for the arming enhancements associated with Jefferson’s and Williams’ convictions for assault with a deadly weapon or by means likely to produce great bodily injury, and those enhancements must be stricken.
As previously noted, Williams used a taser, while Jefferson used a taser and a knife. (Ante, at p. 3, fn. 7, and p. 6.)
VIII.
Williams’ Sentence Must Be Corrected
Williams contends the trial court erred in imposing a four-year term on count V (false imprisonment by violence) because the middle term for that offense is two years. The People agree, and so do we.
Section 1170.1, subdivision (a), part of California’s determinate sentencing law (People v. Rodriguez (2009) 47 Cal.4th 501, 508), provides in pertinent part: “[W]hen any person is convicted of two or more felonies... and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
In addition to first degree murder (count I), Williams was convicted of false imprisonment by violence (count V), dissuading a witness by force or threat (count VII), assault with a deadly weapon or by means of force likely to produce great bodily injury (count VIII), and possession of a firearm by a felon (count IX). The jury also found true allegations he used a firearm in the commission of the murder (§§ 12022.53, subd. (b), 12022.5, subd. (a)). He was sentenced to an aggregate term of 31 years to life in state prison, consisting of: an indeterminate term of 25 years to life for murder; a consecutive four years (the purported middle term) for false imprisonment by violence; a consecutive one year (one third the middle term) for assault with a deadly weapon or with force likely to produce great bodily injury, plus one year for the arming enhancement pursuant to section 12022, subd. (b)(1); a concurrent two years for being a felon in possession of a firearm, and a concurrent three years for dissuading a witness.
The trial court stayed imposition of sentence for the enhancements associated with the murder.
As the parties note, the sentencing triad for false imprisonment by violence is 16 months, 2 years, and 3 years. (§§ 18, 237, subd. (a).) The sentencing triad for assault with a deadly weapon or with force likely to produce great bodily injury is 2, 3, and 4 years. (§§ 18, 245, subd. (a)(1).) Thus, pursuant to section 1170.1, the principal term should have been three years (the middle term) for the assault, and the subordinate term should have been eight months (one-third the middle term) for the false imprisonment.
Williams concedes that “there is no basis to revisit the trial court’s discretion in imposing the middle term for both counts, or running the terms consecutively.”
Because the error resulted in an unauthorized sentence, we will correct it now by imposing a consecutive three years for the assault (count VIII), and a consecutive eight months for the false imprisonment (count V). (See People v. Smith (2001) 24 Cal.4th 849, 852-854; People v. Irvin (1991) 230 Cal.App.3d 180, 190-193.) Williams concedes this in an appropriate remedy. With these modifications and the modification striking the one- year enhancement under section 12022, subdivision (b) imposed on count VIII (see ante at p. 41), Williams’ aggregate sentence is 28 years and 8 months.
As modified, Williams’ aggregate sentence consists of the following: 25 to life for murder; a consecutive three years for assault; a consecutive eight months for false imprisonment; concurrent two years for being a felon in possession of a firearm; and a concurrent three years for dissuading a witness.
DISPOSITION
The judgment against Miller is affirmed in its entirety. The judgment against Jefferson is modified to strike the one-year enhancement imposed pursuant to the section 12022, subdivision (a)(1) on count VIII (assault with a deadly weapon or by means of force likely to cause great bodily injury). The judgment against Williams is modified to impose a consecutive three-year term on count VIII and a consecutive eight months on count V (false imprisonment by violence), and to strike the one-year enhancement imposed pursuant to the section 12022, subdivision (a)(1) on count VIII. As modified, the judgments against Jefferson and Williams are affirmed. We direct the trial court to prepare amended abstracts of judgment as to Jefferson and Williams and to forward copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.