Opinion
B188698
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. RAYSHUN WYRICK, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Rayshun Wyrick, appeals from his convictions for first degree murder (Pen. Code, § 187, subd. (a)) and attempted second degree robbery (§§ 211, 664 ) and the following jurors findings: he personally and intentionally discharged a firearm causing death; the murder was committed while engaged in an attempted robbery; and the murder and robbery were committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(17), 12022.53, subds. (b), (c), (d).) Defendant argues: the trial court improperly joined the robbery and homicide related offenses for trial; the evidence was insufficient; the jury should have been instructed on third-party culpability; and there was sentencing error. We remand to allow the trial court to exercise its section 190.5, subdivision (b) sentencing discretion. But we affirm in all other respects.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
On January 27, 2003, Victor Bravo Garcia was with two friends, Carlos Herrera Barrera ("Herrera") and Ezequiel Estrada, at a taco stand on 71st Street between Main and Broadway. Two teenage African-American men and an African-American teenaged woman approached them. One of the African-American men pointed a chrome gun at Mr. Garcia and his two companions. Another demanded money. Mr. Garcia gave $200 or $300 to the assailants. Mr. Herrera removed some "guavas" from his pockets. Mr. Herrera threw the money to the man without the gun. The young woman patted down Mr. Estrada. The woman took Mr. Estradas wallet. Immediately thereafter, a shot was fired. Mr. Garcia threw himself on the ground. No one was shot.
A few days after the robbery, Mr. Garcia identified defendant from a photographic lineup as the man who was armed with the gun. Mr. Herrera was also shown a photographic lineup a few days after the robbery. Mr. Herrera selected the photograph of Daivon Lewis. Mr. Herrera identified Mr. Lewis as the other perpetrator. As previously noted, Mr. Herrera threw the money at Mr. Lewis. Mr. Herrera also identified Candace Bogans as the young woman who took Mr. Estradas wallet. Detective Matthew Spillane investigated the robbery. When Detective Spillane testified, Mr. Lewis was approximately five feet, six inches tall. When defendant was arrested, he appeared to be approximately five feet, eight inches tall.
Sometime after midnight on February 1, 2003, Jose Hernandez had driven Luis Lazo home. The two men had been talking outside the truck before Mr. Hernandez got back inside to leave. Mr. Lazo was outside next to the passenger door of the truck. Approximately six Black men approached the drivers side of the truck. As two of them got closer, the others ran. Mr. Lazo heard the two men demand money in both English and Spanish. Mr. Lazo heard them say, "Give me your money." The taller of the two men pointed a gun at Mr. Hernandez. When Mr. Hernandez and Mr. Lazo told the men that they had no money, three or more shots were fired. Mr. Lazo threw himself to the ground. The two men left together. The taller man with the gun appeared to be approximately 17 years old. Mr. Lazo was unable to identify anyone from a photographic lineup shown to him after the shooting. Mr. Lazo had not seen a gun inside Mr. Hernandezs truck. Further, Mr. Lazo did not see Mr. Hernandez actually in possession of a handgun on his person. Mr. Hernandez, who had been shot, got out of the truck and collapsed in the street. Mr. Hernandez was still alive when the paramedics arrived. Mr. Hernandez later died as the result of a gunshot wound to the chest. Mr. Hernandez had another gunshot wound to the back as well as a flesh wound. A bullet was recovered from Mr. Hernandezs abdomen.
Mr. Lazo described the person who fired the shots to the police as having short curly hair and wearing a short-sleeved Hawaiian shirt. At the preliminary hearing, Mr. Lazo described the assailant as having braided hair. At that time, Mr. Herrera testified that he did not remember how many braids were in the assailants hair or how long they were. When asked to further describe the braids, Mr. Herrera stated, "`I really couldnt see that well." When asked whether the braid came down past the assailants neck, Mr. Herrera answered, "`No."
Detectives Salaam Abdul and Rudy Flores went to the scene to investigate Mr. Hernandezs murder. Detective Abdul observed several shell casings and broken glass in the street near Mr. Hernandezs truck. Mr. Hernandez had already been removed by paramedics. The shell casings appeared to be from a .9 millimeter semiautomatic gun. Detective Abdul was directed to an apartment building at 6909 South Main Street to recover evidence related to the homicide. Members of a local gang often frequented apartment No. 4, which was vacant. Detective Abdul found a tube of caulking in apartment No. 4. Detective Abdul directed other officers to photograph some graffiti on a wall inside the apartment that appeared to be written in caulk. The graffiti stated, "`Mexican 187 killa." Detective Abdul also had photographs taken of the letters of the local gang, which were written on the door of the apartment.
Inside apartment No. 5, Detective Abdul found: a stainless steel .9 millimeter semiautomatic handgun; a blue steel .380 semiautomatic pistol; and a magazine for one of the firearms. The firearms had been hidden amongst some clothing. Detective Abdul believed that relatives of Antwan Peoples lived in apartment No. 5. However, there was no evidence that defendant had either a key or access to apartment No. 5.
Lonisha Anderson, whose gang name was "Little No Love," could not remember if she was a member of the local gang in 2003. Ms. Anderson was at the vacant apartment on 69th and Main Streets at approximately 1 a.m. sometime in February 2003. The local gang members "hang out" at that apartment. When the police arrived, Ms. Anderson ran to hide under a house. Ms. Anderson told one of the detectives that she ran because she did not want to have her probation revoked. Defendant told Ms. Anderson that he had "killed a Mexican." Defendant had a smirk on his face when he spoke about the killing with Ms. Anderson. Defendant also showed Ms. Anderson a wall in the apartment, which had graffiti written in something like play dough. Ms. Anderson identified defendant from a photographic lineup as the individual who said he "killed a Mexican." Detective Abdul believed Ms. Anderson was mad at the police because she had been hiding to avoid testifying and he located her.
Davona Neal was interviewed by Detectives Flores and Abdul on the morning of February 1, 2003. Ms. Neal told the detectives that earlier she, Mr. Peoples, "Candice," defendant, and another boy were in a vacant apartment. At that time, defendant and the other boy told her: "`Yeah, were going to go rob something. Were going to go rob." Defendant had a silver and black gun when he left the vacant apartment. Mr. Peoples did not go with defendant. Later, defendant and the boy returned to the vacant apartment. Defendant said, "`We did — we robbed somebody . . . [¶] I shot somebody." Shortly thereafter, the police came to the door. Everyone ran out of the apartment. Ms. Neal and Mr. Peoples climbed to her aunts upstairs apartment. The police entered the apartment and handcuffed them. Ms. Neal knew Candice for approximately a year. Ms. Neal knew defendant for four or five years. Ms. Neal had attended elementary school with defendant. Ms. Neal knew defendant was in a local gang and was known as "Infant Cool." Ms. Neal identified defendant from a photographic lineup. However, at trial, Ms. Neal acknowledged that her voice was on the tape recording of the interview conducted by Detectives Abdul and Flores. But Ms. Neal denied having told the detectives that defendant said he shot someone. Ms. Neal claimed the police told her to circle a photo on the photographic lineup and place her initials thereon. Ms. Neal acknowledged that she signed a statement, but stated: "Thats what they made me to say. I was young." Ms. Neal denied having told the police that defendant was a member of the local gang or he had a gun when he left the vacant apartment. Ms. Neal did not want to testify.
Detectives Flores and Abdul also interviewed defendant beginning at approximately 10:30 a.m. on February 1, 2003, after they spoke with Ms. Anderson. The detectives began tape recording defendants interview at about 12:30 p.m. The tape recording of defendants interview was played for the jurors at trial. During the interview, defendant said he was born on March 6, 1986, and acknowledged that he had been at a vacant apartment at 69th and Main Streets the previous evening with his fellow gang members. Defendant identified his friends as: Michael, also known as "Little Red"; Daivon Lewis; a person identified only as "Baby"; Mr. Peoples; Ms. Bogan; and Ms. Neal. All of those present, including defendant left the apartment and walked down 70th Street toward Broadway. They walked through an alley to 71st Street. The group approached two Hispanic men near a car. Defendant had a pistol. Defendant and "Little Red" approached the driver. The remaining members of the group approached the man outside the car. Michael, who defendant referred to as "Little Red" said, "`He reaching under the seat, he reaching under the seat." Defendant saw the man reach under the seat. Mr. Lewis, Ms. Neal, and Ms. Bogan tried to rob the man outside the car. They took the mans wallet. Defendant and "Little Red" remained on the drivers side of the car. Defendant began shooting. Thereafter, everyone ran back to the vacant apartment. Defendant and others began drinking. Defendant was so drunk that he did not know that the police were at the door of the apartment until his friends left through the window. Defendant also went out the window. Defendant was apprehended by the police after jumping over a fence.
Defendant had given the gun to Mr. Peoples. Defendant did not know who owned the gun. Defendant believed it was a "`hood gun" that was "`floating" at the apartment and was used by different people. Mr. Peoples took the gun outside before the police arrived.
Los Angeles Police Department Criminalist Stella Chu test fired the .9 millimeter Luger semiautomatic pistol recovered from apartment No. 5 at 6909 South Main Street. Ms. Chu compared a test fired casing from that weapon to seven .9 millimeter cartridge cases in evidence and the bullet recovered from Mr. Hernandezs body. Ms. Chu concluded that the casings and the bullet were fired from the Luger handgun.
Los Angeles Police Officer Patrick Rudolf had been assigned as a gang investigator for seven years. In that capacity, Officer Rudolf: gathered intelligence on gangs and their members in the community; identified gang patterns; assisted detectives in identifying gang members involved in crime; and, proactively countered gang crimes. Officer Rudolf obtained most of his information from gang members themselves. Officer Rudolf was familiar with the local gang, which was involved in: robberies; murders; drive-by shootings; assaults with deadly weapons and firearms; and attempted murders. The neighborhood where the crimes in this case occurred was in the middle of the area claimed by the local gang. Officer Rudolf explained that the gang gains respect within the community by instilling fear. Gang members control their territory by such activities as vandalism, beatings, and robberies. Officer Rudolf knew defendant as an admitted member of the local gang. Defendants tattoos were related to the local gang as was his "moniker." The graffiti on the door of apartment No. 4 at 6909 South Main Street also represented the local gang name. Officer Rudolf believed that the January 27, 2003 robberies and the February 1, 2003 attempted robbery and murder, were committed on behalf of the gang for the benefit of its members and reputation. There was an on-going conflict between the local Black and Hispanic gangs. The local Black gang often sought out Hispanic victims for robberies. The parties stipulated that the local Black gang is a criminal street gang and its members engaged in a pattern of criminal activity as provided by section 186.22.
III. DISCUSSION
A. Joinder
1. Factual and procedural background
Defendant argues the trial court improperly joined the three robbery charges in case No. BA254585 with the murder and attempted robbery allegations in case No. BA255566. Prior to the preliminary hearing, the magistrate reviewed the prosecutors motion to consolidate the two complaints and defense counsels opposition to the joinder. The magistrate also heard arguments from counsel. In permitting the joinder, the magistrate ruled: "There is always prejudice and inflammatory possibility when more counts are joined regardless of what the counts are. But that is not the type of prejudice or disability that the cases talk about. [¶] In this particular case, it appears to the court that we are talking about the same class of crimes. Certainly there is a presumption under section 954 of the Penal Code that such cases be tried — such counts be tried together in the same case. [¶] We do have an overlap in witnesses. At least the primary witnesses — the charges are connected in their commission in that they are in the same area within a short period of time together. There is the same [modus operandi] in each of the cases. [¶] And it does not appear, at least from the moving papers, that one case is stronger than the other. Both cases are similar. And although one of the victims died in one case, it is not such a far leap from the evidence that I have read that that could have happened in the second case. [¶] In both cases it is alleged the defendant fired shots during the robbery and had a firearm in both cases. [¶] So taken all in all, it seems to me that the cases ought to be joined at this time. And we will join them at this point." The magistrate indicated that it would permit defense counsel to renew her motion based upon the evidence presented at the preliminary hearing.
2. The trial court could properly grant the joinder motion
We review the ruling on whether separate proceedings are required in the interests of justice for abuse of discretion. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120; People v. Ochoa (2001) 26 Cal.4th 398, 423; People v. Cunningham (2001) 25 Cal.4th 926, 984-985; People v. Alvarez (1996) 14 Cal.4th 155, 188.) Section 954 provides in pertinent part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." The California Supreme Court has held: "`"`The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] [¶] . . . Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a `weak case has been joined with a `strong case, or with another `weak case, so that the `spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." [Citation.]" (People v. Gutierrrez, supra, 28 Cal.4th at p. 1120, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Ochoa, supra, 26 Cal.4th at p. 423.)
Because the robberies and attempted robbery and murder were offenses of the same class, joinder was permissible. (People v. Gutierrez, supra, 28 Cal.4th at p. 1120; People v. Catlin (2001) 26 Cal.4th 81, 110; People v. Bradford, supra, 15 Cal.4th at p. 1315.) Defendant argues the evidence of the robberies constituted cumulative evidence that was neither necessary nor probative and was "exceedingly prejudicial." Defendant further argues, "[T]he three additional robberies would not only cause the jury to impute bad character and evil propensity to [him], but cause them to convict him of the murder regardless of the merits of that charge." Defendant argues that the fact the jury acquitted him of the three robbery charges does not mean that he suffered no prejudice as a result of their joinder with the murder and attempted robbery. Rather, defendant concludes that the robbery counts were weak charges that were inappropriately joined with the highly inflammatory charges. We disagree insofar as defendant argues there has been an abuse of discretion or violation of defendants due process rights.
As set forth above, the magistrate found: the crimes were of the same class; there was an overlap in witnesses; and, both cases were similar because shots were fired during the robberies and defendant allegedly used a firearm in both cases. The three January 27, 2003 robberies and the February 1, 2003 attempted robbery were all committed in the same neighborhood against Hispanic victims by two African-American teenage gang members. In each instance, one of the robbers carried a gun and fired it during the robbery. The crimes were definitely of the same class. Although a murder was committed on February 1, 2003, it could have easily occurred during the first January 27, 2003 incident as well when shots were fired. Without abusing discretion, the magistrate could reasonably have concluded neither case was weaker or more inflammatory than the other. (See People v. Ochoa, supra, 26 Cal.4th at p. 424; Frank v. Superior Court (1989) 48 Cal.3d 632, 639-641; People v. Lucky (1988) 45 Cal.3d 259, 278.) Mr. Garcia identified defendant from a photographic lineup as the man with the gun in the January 27, 2003 robbery. Ms. Neal, who had been friends with defendant for several years, identified him from a photographic lineup as the individual that told her, "I shot somebody" on February 1, 2003. No abuse of discretion or violation of defendants due process right to a fair trial occurred. (People v. Ochoa, supra, 26 Cal.4th at p. 425; People v. Bradford, supra, 15 Cal.4th at pp. 1317-1318.)
B. Sufficiency of the Evidence
Defendant argues there was insufficient evidence. More specifically, defendant argues that the extrajudicial statements of two" accomplices," Ms. Anderson and Ms. Neal, were insufficiently corroborated. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, (9th Cir. 1994) 31 F.3d 907-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held," Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) Section 1111 provides:" A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
Other than defendants testimony on his own behalf, no evidence was presented that implicated Ms. Anderson and Ms. Neal as accomplices in the murder or attempted robbery of Mr. Hernandez. Both Ms. Neal and Ms. Anderson denied any involvement in the crimes. The trial court instructed the jurors with CALJIC Nos.: 3.10 [accomplice defined]; 3.01 [aiding and abetting]; 3.19 [defendants burden to prove witnesses were accomplices]; 3.11and 3.12 [corroboration of accomplice testimony]; and 3.18 [view testimony of accomplice with caution]. The California Supreme Court has held: "[W]hether a witness is an accomplice is a question of fact for the jury in all cases unless `there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1271, quoting People v. Garrison (1989) 47 Cal.3d 746, 772.) Our Supreme Court has also held:" The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 834; People v. Tewksbury (1976) 15 Cal.3d 953, 968-969.) Defendant did not carry that burden in this case.
However, even if the jurors found Ms. Neal and Ms. Anderson to be accomplices, there was substantial corroborating evidence of defendants guilt. In People v. Lewis (2001) 26 Cal.4th 334, the California Supreme Court held: "`Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.] [Citation.] The evidence `is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.]" Id. at p. 370, quoting People v. Hayes, supra, 21 Cal.4th at p. 1271 and People v. Fauber, supra, 2 Cal.4th at p. 834.) Here, when interviewed by two detectives, defendant admitted that he and others approached the two Hispanic men. Defendant stated that he had a gun and admitted he ultimately began shooting. Defendant also admitted he gave the "hood" gun to Mr. Peoples, who took it outside before the police arrived. The gun, later determined to have been used in the murder, was found by detectives in the apartment where Mr. Peopless relatives resided. There was substantial evidence of defendants guilt if based only upon his confession to police or in corroboration of the statements made and testimony given by Ms. Anderson and Ms. Neal.
C. Third Party Culpability Instruction
Defendant argues the trial court had a sua sponte duty to instruct regarding third party culpability because "there was a wealth of evidence linking [Mr.] Peoples" to the crimes. He further argues the trial courts failure to so instruct violated his federal constitutional rights to due process and trial by jury. Alternatively, he argues trial counsel was ineffective in failing to request such an instruction.
We need not address questions of whether there was a sua sponte duty to give a pinpoint instruction on third-party culpability. Moreover, we need not discuss whether defense counsels failure to request such an instruction was constitutionally deficient. This is because under any standard of reversible error, the failure to have given or requested the instruction was harmless. (Woodford v. Visciotti (2002) 537 U.S. 19, 22 ["Strickland v. Washington (1984) 466 U.S. 668, 694] held that to prove prejudice the defendant must establish a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different . . . ."]; Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt standard]; People v. Earp (1999) 20 Cal.4th 826, 887; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a different result].)
The trial court instructed the jury with CALJIC No. 2.90 regarding reasonable doubt. They were also instructed with CALJIC No. 2.91, which required that after considering the circumstances of the identification and other evidence, they must give defendant the benefit of any reasonable doubt and find him not guilty. The jurors were also instructed on: witnesss prior inconsistent statements (CALJIC No. 2.13); believability of a witness (CALJIC No. 2.20); and witness willfully false (CALJIC No. 2.21.2). The instructions given informed the jury that the prosecutor had the burden to prove defendant was the perpetrator of the murder and attempted robbery. The instruction that defendant suggests should have been given was adequately addressed by and is duplicative of the other instructions given by the trial court.
CALJIC No. 2.90, as read to the jury, stated: "The defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether his guilt is satisfactorily shown, hes entitled to a verdict of not guilty. This presumption places upon the People the burden of proving the defendant guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
CALJIC No. 2.91, as read to the jury, stated: "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crimes with which hes charged. If, after considering the circumstances of the identification and any other evidence in the case you have a reasonable doubt whether the defendant was the person who committed the crimes, then you must give the defendant the benefit of that doubt and find him not guilty."
CAJIC No. 2.13 states: "Evidence that at some other time a witness made a statement that is inconsistent or consistent with his or her testimony in the trial may be considered by you, not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on the earlier occasion. [¶] If you disbelieve a witness testimony that he or she no longer remembers a certain event, then that testimony is inconsistent with a prior statement by him or her describing that event."
CALJIC No. 2.20, as presented to the jury was as follows: "Every person who testified during the trial under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given to the testimony of each witness. In determining the believability of a witness, you may consider anything that has a tendency to prove or disprove the truthfulness of the witness testimony, which includes, but is not limited to, any of the following factors: The extent of the opportunity or the ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; [¶] The ability of a witness to remember or to communicate any matter about which the witness testified; [¶] The character and quality of the witness testimony; [¶] The demeanor and manner of a witness while testifying; [¶] The existence or nonexistence of a bias, interest, or other motive; [¶] The existence or nonexistence of any facts testified to by the witness; [¶] The attitude of the witness toward this action or toward giving of testimony; [¶] A statement previously made by the witness that is consistent or inconsistent with his or her testimony at trial; [¶] An admission by the witness of untruthfulness."
CALJIC No. 2.21.2 states: "A witness who is willfully false in one material part of his or her testimony, is to be distrusted in others. You can reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other ways."
In addition, as set forth above, the prosecutor presented the tape recording of defendants confession. In that tape, defendant stated that he and his "homeboys" and "homegirls" had been hanging out at the vacant apartment at 69th and Main Streets. Defendant said that all of those present went out walking. On their way back to the apartment, they saw two Hispanic men near a car. Defendant and "Little Red" approached the driver, while the others went to rob the man standing outside the car. Defendant, who was carrying a pistol, shot the driver. Everyone ran back to the apartment. Defendant told the detectives the gun used in the murder was given to the "hood." Mr. Peoples took the murder weapon outside before the police arrived. The gun, later determined to have been used in the murder, was found by detectives in the apartment of Mr. Peopless relatives. Any purported error was harmless.
D. Sentencing
Defendant argues that the matter should be remanded for resentencing because the trial court did not exercise its section 190.5 discretion to sentence defendant to a 25-year-to-life sentence rather than life without the possibility of parole. We agree. Respondent concedes the issue. Defendant was convicted of first degree murder and the jury found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17).) At the time defendant was sentenced, the trial court noted, "[T]he sentence is prescribed by law. [¶] Count 4, special circumstance murder, is prescribed by Penal Code [section] 190.2 [subdivision] (a) as life without parole." However, section 190.5, subdivision (b) provides, "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life." As a result, the matter is remanded to allow the trial court to exercise its section 190.5, subdivision (b) discretion. We reject as premature defendants additional cruel and unusual punishment argument.
IV. DISPOSITION
The sentence is reversed. The case is remanded to allow the trial court to exercise its Penal Code section 190.5, subdivision (b) sentencing discretion after issuance of the remittitur. The judgment is affirmed in all other respects.
We Concur:
MOSK, J.
KRIEGLER, J.