Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085443, Robert M. Martinez, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, and Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
PROCEDURAL HISTORY
A jury convicted appellant of first degree murder. The jury also found that appellant personally used a handgun within the meaning of Penal Code section 12022.53, subdivision (b), personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivision (c), and personally and intentionally discharged a handgun which caused great bodily injury and death to the victim within the meaning of 12022.53, subdivision (d). Pursuant to sections 667, subdivision (a), and 667.5, subdivision (b), the trial court found that appellant had two prior convictions and that he did not remain free from custody for five years following a prior prison term. The court sentenced appellant to a total term of 82 years to life in state prison.
All further references to statutes are to the Penal Code.
Appellant filed a timely notice of appeal based on contentions that the trial court failed to instruct sua sponte on third party culpability and that there was a sentencing error. We affirm the judgment as modified.
STATEMENT OF FACTS
Julie Finneran lived in Pomona with her boyfriend Michael McKee, the victim. Corey Martinez also lived with them in the house. Finneran and McKee were friends of appellant’s. Martinez and appellant did not get along. Three or four months prior to McKee’s murder on December 6, 2008, Finneran had sex with appellant even though she was in a relationship with McKee.
Finneran was at home taking a shower on December 6, 2008. McKee was not home. Appellant entered the home, went into the bathroom, and opened the shower curtain. He indicated he wanted to have sex with Finneran. Finneran said no because Martinez was in the next room and she was afraid McKee might come home. After leaving the bathroom for a few minutes, appellant again entered the room and opened the shower curtain but left when Finneran again reiterated that Martinez was in the other room. After Finneran was out of the shower and clothed, she and appellant went into the garage, where appellant unzipped his pants and exposed himself to Finneran—again indicating he wanted to have sex with her. Finneran again declined. Shortly thereafter, McKee returned home.
After McKee returned home, appellant asked to borrow a bicycle McKee was storing for a friend. Appellant obtained permission to take the bike down the driveway, but not to take it for hours. After appellant had been gone with the bike for too long, McKee and Finneran went to look for him. While they were looking for appellant, Finneran told McKee about the incidents from earlier in the day where appellant solicited sex from her. McKee became upset with appellant, and they returned to their house without the bicycle.
Several hours later, appellant returned to the house with the bicycle. There was tension when he returned, and McKee and Martinez stepped outside to talk with appellant. Finneran overheard some of the conversation. McKee told appellant not to come around the house anymore. At approximately 8:30 p.m. McKee gave appellant a ride because it was raining.
Around 8:45 p.m. Maria Perez was asleep in her home on Virginia Street in Pomona. Between 8:45 and 8:47 p.m., she woke up when she heard the sound of gunshots. Several minutes later Perez’s daughter, Yajaira Gonzalez, returned home. As Gonzalez was pulling into the driveway she saw a car with a man in the driver’s seat slumped against the driver’s side door. When Gonzalez told Perez about the man in the car, Perez asked whether it could have been a result of the gunshots she heard. Then, Gonzalez called 911.
At about 9:30 p.m. the police arrived at McKee’s house and told Finneran that McKee’s car was found abandoned in the middle of the street. A few hours later a detective told Finneran that McKee had been killed. Finneran told the detective that she thought appellant had killed him because he left the house with McKee within an hour of police arriving.
When detectives arrived at Virginia Street, they found a blue PT Cruiser in the middle of the street. McKee’s dead body was in the driver’s seat of the vehicle. An autopsy determined the cause of death was multiple gunshot wounds. The gunshot wounds were consistent with a person shooting from the passenger side of the car.
The day after the McKee’s death, Officer Richard Aguiar was dispatched to 675 South Reservoir Street in response to a male creating a disturbance. When he arrived, appellant was standing on the street corner taking off his clothes. Officer Aguiar placed appellant under arrest. Detective Carol Ward transported appellant to jail. When she put him into her car he asked what charges he was being held on. When Detective Ward indicated she did not know, appellant said “It must be the murder charge. I haven’t done anything else.” Sometime thereafter appellant also told detectives that Martinez murdered McKee.
Appellant was later interviewed concerning McKee’s death. Appellant said he last saw McKee on the evening of his death, saying McKee gave him a ride to the mobile home park where a man named Don lived with Nohemi Sturgulewski and Charmaine Yamas. Appellant told the detectives that Sturgulewski saw McKee drop him off.
Sturgulewski shared a mobile home unit with her boyfriend Don. Charmaine Yamas was also living in the unit. Sturgulewski testified that between 10:00 and 11:00 a.m. on the morning of McKee’s death, appellant showed up at the unit with a friend. Appellant spent between three and five hours giving Sturgulewski a tattoo. It was the first time Sturgulewski had met appellant. Sturgulewski had an argument with Don and went to a friend’s house. Appellant was still in the unit when she left. When she returned three or four hours later, it was already dark. Don left to go to a friend’s house, and Sturgulewski heard appellant in the bathroom asking for a towel. When she brought appellant a towel, she observed that the appellant was fully clothed. His clothes were completely soaked and he smelled like bleach. A bottle of bleach was on the floor next to him. Later, appellant and Sturgulewski were in appellant’s car together. As appellant drove, he told Sturgulewski that she was going to be his alibi. He told her that he had “crowned” somebody who deserved it for being a child molester. Appellant told Sturgulewski that when the detectives questioned her she was going to tell them that she was with him the entire day. He told her to tell detectives that he had been dropped off in a blue PT Cruiser by a guy named Mike.
When detectives contacted Sturgulewski, she initially told them she was with appellant on the day of the murder. She changed her story when she was told that she was going to be charged as an accessory to murder. Sturgulewski was on probation at the time. She told detectives that appellant said he was going to use her as an alibi, and that he killed a man for being a child molester. Sturgulewski said that appellant told her he “crowned” somebody, which she took to mean that he shot somebody in the head.
When detectives interviewed Charmaine Yamas, she said that on the night of the murder she let appellant into the unit she shared with Don and Sturgulewski. After letting appellant in the house, she went to dinner with a friend. The following day she saw appellant but did not remember the details of their conversation.
A few days after the murder, detectives interviewed Sandra Athanasion, appellant’s aunt. She said appellant was at her house on the evening of the murder and that he was acting “crazy, aggressive, angry.” Athanasion said she had never seen appellant act that way before and that she was concerned about his being around her grandchild. When she expressed this to appellant he told her not to worry because when he was caught for what he did he was “going to be gone for good.” At trial, Athanasion denied having any such concerns or making these statements. She admitted not wanting to testify.
At trial, appellant testified on his own behalf. He claimed to have been present when another person he did not know shot and killed McKee. According to appellant, McKee said they were going to meet someone and, when they turned onto a cul-de-sac, a car was waiting for them. A Hispanic man with a bald head and medium build approached the car and asked for a minute with McKee. Appellant obliged and walked around the car while the man spoke with McKee. Shortly thereafter, the man pulled a gun and fired on McKee. Appellant admitted using bleach to erase any evidence that he was at the scene of the murder, and he admitted asking Sturgulewski to be his alibi. He also admitted to telling police that Martinez killed McKee. He said he lied to police because he did not want to be involved. During his testimony, appellant admitted making the statement about the murder charge to Detective Ward when he was arrested, but insisted that he did not mean he murdered McKee. He denied telling his aunt that when he was caught he was “going to be gone for good.” On cross examination, appellant admitted to prior convictions for first degree burglary and taking a vehicle without the owner’s consent.
DISCUSSION
1. Trial Court’s Failure to Instruct Sua Sponte on Third Party Culpability Defense
Appellant contends that his testimony that he witnessed another man murder McKee was enough to create a duty for the trial court to instruct the jury sua sponte on appellant’s third party culpability defense, and that the court’s failure to do so constituted a violation of appellant’s constitutional rights. We disagree.
The California Supreme Court rejected this same contention in People v. Abilez (2007) 41 Cal.4th 472, 517. Under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, this court is bound to follow California Supreme Court precedent. Appellant acknowledges this in his opening brief.
The trial court did not have a duty to instruct sua sponte on appellant’s third party culpability defense because the jury was properly instructed on the relevant general principles pertinent to the case. There is no duty to sua sponte instruct the jury on third party culpability where the jury is properly instructed on general principles that are on point with the facts before the court. (People v. Abilez, supra, 41 Cal.4th at p. 517.) In Abilez, Frank Abilez was convicted of several offenses, including murdering and sodomizing his mother. (Id. at p. 481.) At trial, Abilez’s defense was that his cousin committed the crimes. (Id. at p. 517.) On appeal, Abilez contended that his rights to a jury trial and to due process were violated when the trial court failed to instruct the jury that he did not need to prove his innocence or that his cousin was guilty, but merely raise a reasonable doubt as to his own guilt. (Ibid.) Because Abilez did not request such an instruction at trial, his contention was that the trial court had a sua sponte duty “to instruct the jury how the burden of proof applies to third party culpability.” (Ibid.) The California Supreme Court rejected this contention, ruling that although a criminal defendant may use a third party culpability defense to raise a reasonable doubt as to his or her guilt, and the trial court “has a duty to instruct the jury ‘sua sponte on general principles which are closely and openly connected with the facts before the court, ’” (ibid., quoting People v. Holt (1997) 15 Cal.4th 619, 688), there is “no special instruction on third party culpability... necessary to apprise the jury of the pertinent legal principles” where the jury was properly instructed on the defendant’s presumed innocence and the requirement that the jury find him guilty beyond a reasonable doubt. (Abilez, at p. 517.) The court reasoned that “[h]ad the jury entertained a reasonable doubt that defendant sodomized and killed the victim and instead believed [his cousin] committed those crimes, presumably it would have acquitted defendant.” (Ibid.)
Similar to the jury in Abilez, the jury in appellant’s trial was properly instructed on the presumption of innocence, the People’s burden of proof, and the concept of reasonable doubt. During deliberations, the jury reviewed the defendant’s testimony of his positions and of the shooter’s positions during the shooting. If the jury believed appellant’s testimony that another person committed the murder, presumably it would have acquitted him. The jury instructions did not undermine the presumption of innocence or ease the prosecution’s burden of proof.
Even if the trial court erred by not instructing on third party culpability, any such error was nonprejudicial. The jury was instructed on reasonable doubt and could have acquitted defendant if it believed someone else was responsible for the murder. Any such failure to instruct the jury was thus harmless.
2. Incorrect Sentencing Enhancement
Appellant also contends that the trial court incorrectly imposed sentencing enhancements pursuant to both sections 667, subdivision (a) and 667.5, subdivision (b), based on appellant’s conviction for first degree burglary in case No. FWV034931. We agree.
In the case on appeal, appellant was sentenced to the total state prison term of 82 years to life. The sentence incorrectly included two statutory enhancements based on the same prior offense. “[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.) Appellant received a five-year enhancement pursuant to section 667, subdivision (a) for the prior first degree burglary conviction. Accordingly, the one-year enhancement imposed pursuant to section 667.5, subdivision (b), which was based on the same first degree burglary conviction, must be stricken.
DISPOSITION
The judgment is modified to strike the one-year enhancement pursuant to section 667.5, subdivision (b), for appellant’s first degree burglary conviction. As a result, appellant’s sentence is reduced to 81 years to life. The superior court is directed to amend the abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.