P. v. Johnson
P. v. Johnson
Filed 3/30/06 P. v. Johnson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. TA067643)
APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Affirmed.
Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Calvin Johnson appeals from a judgment of conviction of the murder of two men and attempted murder of a third. He contends the judgment must be reversed because of evidentiary errors, the court’s refusal to bifurcate the trial on gang issues, insufficiency of the evidence, prosecutorial misconduct, and sentencing errors. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Demetric Johnson, Rhoshad Wallace, and Frederick Cloud were driving home from work when appellant jumped out of the bushes at an intersection and fired several shots at the car. Wallace and Cloud died from gunshot wounds to the head. Johnson was shot in the arm and survived.
Police officers attempted to interview Johnson at the scene and at the hospital to which he was taken, but stopped because he was disoriented and upset. He was interviewed about a week after the shooting. Johnson described the shooter as approximately five feet seven or eight inches tall, weighing 165 pounds, and wearing red shorts, a white T-shirt, and a red and white cap. At a photographic lineup, Johnson picked out two photos and asked to see a profile. The police officers gave him only appellant’s profile. He identified appellant as the shooter.
Gigi Kemp, in custody for a parole violation, made a recorded statement to police, saying that appellant told her he committed the murders. At trial, she recanted this statement, claiming she lied to get out of jail.
Johnson was a member of the Avalon Garden Crips. Appellant was a member of a rival gang, Centerview Piru, associated with the Bloods. Neither Wallace nor Cloud was a known gang member.
Appellant was charged with two counts of murder, one count of attempted murder, and shooting at an occupied motor vehicle. He also was charged with a multiple murder special circumstance, firearm use enhancements, and gang allegations. The jury convicted appellant of all charges and found all of the special allegations to be true. The court sentenced appellant to two life terms without possibility of parole, three terms of 25 years to life for the firearm use enhancements, plus seven years for attempted murder. The five-year sentence for shooting at a motor vehicle was stayed pursuant to Penal Code section 654.
Appellant filed a timely notice of appeal.
Appellant contends his constitutional rights were violated when the trial court refused to admit evidence that a third party committed the charged offenses. He sought to introduce evidence that Myron “Dobie” Davis committed the murders. He proposed to do this through the statement of Jessica Jackson, a friend of Davis, to the effect that he admitted committing the crimes. Acknowledging that the statement was hearsay, appellant asserts it was admissible, nevertheless, as a reliable declaration against interest. (Evid. Code, § 1230.) He also argues the court erred in excluding ballistics evidence linking the gun used in the crimes to a weapon used by Davis in another murder.
The law governing the admissibility of evidence of third party culpability is summarized in People v. Hall (1986) 41 Cal.3d 826, 833. The standard of admissibility is the same as for other exculpatory evidence—it must be relevant under Evidence Code section 350, and, if the issue is raised, its probative value cannot be substantially outweighed by the risk of undue delay, prejudice, or confusion under Evidence Code section 352. (Ibid.) Evidence that a third party had the motive or opportunity to commit the crime is not enough—there must be direct or circumstantial evidence linking the third person to the perpetration of the crime. (Ibid.; People v. Gutierrez (2002) 28 Cal.4th 1083, 1136.)
The court held a preliminary fact hearing on admissibility of this evidence. It was stipulated that Jessica told defense counsel that she heard Davis admit responsibility for the shootings. Jessica was at the residence of Ramon Trotter when she heard Davis say, “we smoked these crabs,” and indicate the shooting was at the corner of Alondra and Avalon. Jessica made a similar statement to a public defender investigator, Diana Dejon. She said she was at Trotter’s house with her nephew when Davis said, “We got that nigger. They think Centerview did it, but I did it.”
Jessica avoided several subpoenas and indicated she was afraid to testify. Dejon also interviewed Jackson’s nephew, Treyvionn Jackson. He said that he heard Davis and Trotter say that people in the neighborhood believed that the Centerview gang was responsible for the murders.
Jessica and Treyvionn testified at the evidentiary hearing. Each testified to hearing rumors Davis was the shooter, but did not remember hearing him admit responsibility. Jessica explicitly denied hearing Davis make the statement. During cross-examination, the prosecutor asked, “were you at [Davis’s] house and did you hear the statement I read, ‘We got that nigger. They think Centerview did it, but I did it.’” Jessica answered, “No.”
Jessica testified that she spoke with the defense attorney about the murders, but did not speak with the defense investigator. She claimed that she did not tell anyone that she had heard Davis make a statement about the murders. The prosecutor asked, “When you talked with [the defense attorney], did you tell them what you heard on the street?” She answered, “Yes.” He continued, “Did you make it clear you were telling them that this is what you heard on the street, not this is what I heard from [Davis’s] mouth?” Jessica answered, “Yes.” Jessica denied speaking with anyone in the defense attorney’s office other than defense counsel. She was asked, “Did you talk with anyone in person about what you heard about this murder from the defense attorney’s office?” She answered, “No.” She was then asked whether she had talked to anyone on the phone about what she had heard about the murder, and again answered, “No.” Jessica did not testify in the presence of the jury.
Appellant sought to have Davis’s statement admitted under Evidence Code section 1230, the declaration against interest exception to the hearsay rule. The testimony presented a multiple hearsay problem because the investigator testified to Jessica’s statement about Davis’s statement. The first level of hearsay, the investigator’s testimony, was admissible as a prior inconsistent statement after Jessica denied making the statement. (Evid. Code, § 1235; People v. Rincon (2005) 129 Cal.App.4th 738, 751.)
The second level of hearsay is Davis’s statement admitting the murders. Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected [the declarant] to the risk of . . . criminal liability, . . . or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
The parties agree that Davis was “unavailable” as a witness due to his assertion of his Fifth Amendment privilege against self-incrimination when subpoenaed to testify at this trial. (See People v. Leach (1975) 15 Cal.3d 419, 438; People v. Seijas (2005) 36 Cal.4th 291, 303.) That satisfies one element of the exception. Another is that the proponent demonstrates that the declaration is reliable. (People v. Cudjo (1993) 6 Cal.4th 585, 607.) To determine whether the statement satisfies the reliability requirement, the court may take into account the words of the statement itself, the motivation of the declarant, and the surrounding circumstances. (People v. Frierson (1991) 53 Cal.3d 730, 745.) The court’s ruling on this issue is reviewed under the abuse of discretion standard. (People v. Cudjo, supra, 6 Cal.4th at p. 607.)
Here, the court found the statement was inadmissible as a declaration against interest because it was untrustworthy and unreliable. The court also found insufficient evidence that Davis made the statement. The testimony of defense counsel and the investigator was sufficient to support a finding the statement was made. (See People v. Cudjo, supra, 6 Cal.4th at pp. 608-609 [“the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions.’ [Citations.]”].) Nonetheless, the court acted within its discretion in finding it lacked trustworthiness.
Appellant correctly argues that a circumstance of the statement lends it credence: it was made in a discussion among friends. (See People v. Cudjo, supra, 6 Cal.4th at pp. 607-608.) The court made its ruling, however, based on the ambiguity of the language: “We got that nigger. They think Centerview did it, but I did it.” The court reasoned, “the court would then have to really focus on the language of that particular quote as to what verbiage would be against [Davis’s] penal interest. And the only inference or deduction that the court could draw is that it’s the last three words, which is ‘I did it.’ Then focusing on those three words, the inferences or deductions that you could draw from that are so broad and wide. . . . It does not specify what he means by that, what he did. There’s no other context within that quote or statement that would lead this court to conclude that it referenced specifically the murders in this trial, and the court is further troubled that there were two homicides. Even trying to draw the inference that it referred to the murders in this case, you look at the prior language and it stated, ‘We got that nigger,’ ‘that nigger’ being in the singular as to the - referencing it to the plural. Looking at the first pronoun ‘they,’ it’s undefined. It makes no reference as to who ‘they’ is. So even under that analysis, the court would find it is untrustworthy and unreliable.”
We agree with the court’s analysis. The incriminating phrase, “I did it,” without more, creates no inference about what was done. “We got that nigger” refers to one victim, when there were two murder victims in this case. There is no support for appellant’s contention that Davis used the singular because only one man in the car was a gang member and therefore was the target of the shooting. Further, there was nothing to indicate to whom “they” referred.
The court excluded the ballistics evidence because its probative value was outweighed by the likelihood of the confusion of issues and undue consumption of trial time. Two forensic experts testified, outside the presence of the jury, about the possibility the same gun was used in these crimes and in a murder Davis committed in Long Beach. The experts disagreed about whether the same gun fired the shell casings. Admission of this minimally probative evidence would cause confusion and undue delay. (Evid. Code, § 352.) There was no error in its exclusion.
Appellant contends the trial court erred in denying his motion to bifurcate trial of the gang allegation.
Section 186.22, subdivision (b)(1), provides a sentence enhancement for a defendant convicted of “a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” The Supreme Court recently held that bifurcation of a gang enhancement allegation is permitted, but the decision to bifurcate is within the discretion of the trial court. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.)
In cases not involving a gang enhancement, evidence of gang membership should not be admitted where its probative value is minimal. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) But gang evidence often is relevant to establish motive, identity, modus operandi, or specific intent. (Ibid.) Bifurcation is required only when other evidence of the predicate acts required to establish the gang enhancement is unduly prejudicial, or when gang evidence about the defendant is “so extraordinarily prejudicial, and of so little relevance of guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Ibid.)
Appellant argues the testimony of the gang expert about his police contacts would not have been admissible in a separate trial on guilt. He asserts there was no evidence, aside from the expert’s testimony, to establish the shootings were related to any alleged gang affiliation. It follows, he contends, that evidence of mere membership in a gang is “irrelevant and amounts to criminal disposition evidence based on the criminal disposition of a class of people to which the defendant belongs - or with whom he associates.” He argues further the gang evidence should have been excluded as more prejudicial than probative.
We are not persuaded. Much of the gang evidence was relevant to the charged offense and would have been admissible regarding appellant’s motive and intent in killing the victims, even if there had been no gang allegation. (People v. Hernandez, supra, 33 Cal.4th at p. 1049; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) The prosecutor’s theory was that appellant committed the shootings as part of a long-standing feud between the Swamp and Centerview Piru street gangs. The prosecution introduced substantial evidence of gang affiliation—appellant admitted his gang membership to police, he has gang tattoos, he was observed wearing red, the Centerview Piru color, on numerous occasions, and he associated with known gang members. Evidence was introduced that the shooter was wearing red clothing. The gang expert testified the murders were committed in a neighborhood controlled by the Swamps. One victim was a member of a rival gang. The evidence creates a strong inference the motive was gang-related. Under these circumstances, the evidence was relevant to appellant’s guilt and not unduly prejudicial.
Such potential for prejudice as there was, was mitigated by the trial court’s limiting instructions: “Any information or hearsay that the gang expert uses to form his opinion that was not introduced by other evidence or witnesses at this trial only comes in as a basis for the expert’s opinion and not for the truth of the matter asserted. The hearsay shall not be used in considering the defendant’s propensity to commit the crimes as charged in this case.” The court also excluded some of the gang evidence pursuant to Evidence Code section 352. Further, the prosecutor elicited the gang expert’s testimony within parameters established at the bifurcation hearing—appellant’s prior arrests were referred to as “contacts” and the Swamp-Centerview rivalry was discussed generally without reference to specific violent crimes. We find no abuse of discretion in the court’s decision not to bifurcate the gang enhancement allegation.
Appellant argues the record is insufficient to support the jury finding that the shootings were committed with the specific intent to benefit a gang. He contends the prosecution failed to provide substantial evidence that he committed the underlying offenses “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Without evidence of gang slogans or that the gang took credit for the killings, appellant argues the gang expert’s testimony—that a gang member elevates his status in the gang by committing murders—was not sufficient to create an inference the shootings were gang-related.
In reviewing a challenge to the sufficiency of evidence, “the reviewing court must 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.) We consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.) To prove a gang allegation, an expert witness may testify about criminal street gangs. (People v. Gardeley, supra, at pp. 616-618.)
Here, the gang allegation is supported by substantial evidence. Appellant does not dispute that Centerview Piru is a criminal street gang. He does dispute whether the evidence establishes that his activities were committed for the benefit of the gang. The prosecution expert, Los Angeles Police Sergeant Frederick Douglass Reynolds, testified that, based upon appellant’s history of police contacts, the nature of the shooting, and its location in rival gang territory, appellant was an active member of the Centerview Piru gang at the time of the shooting. Indeed, appellant acknowledged his Centerview Piru membership to police on at least two occasions, although he had once admitted membership in a Crips gang. He wore red clothing, associated with Centerview Piru, at the time of the shootings. He had a tattoo identified by Sergeant Reynolds as signifying the gangster lifestyle. One of the victims, Demetric Johnson, was a member of a rival gang, the Avalon Garden Crips, and the shooting occurred in Crips territory.
Sergeant Reynolds explained that shooting a rival gang member in the rival’s territory is called “putting in work,” and considerably elevates a member’s status in the gang. Shooting young men who are not gang members—“civilians” in gang terminology—has the same effect. The boost to a gang member’s reputation, he noted, would be particularly strong if that member was increasing his participation in the gang as he grew older. Appellant became involved with the gang as a teenager and committed these crimes when he was 22. The shootings also improve the reputation of the gang, Sergeant Reynolds testified, because “[s]treet gangs thrive on fear and intimidation within the community and among other gangs, so the more work you put in or more shootings, more dope you sell, the more - the more other gangs are going to hold that particular gang in reverence.”
Additionally, a woman from appellant’s neighborhood, Gigi Kemp, told police that appellant referenced the gang rivalry while bragging about the shootings. She recanted the statement at trial, claiming she made it to avoid a prison term for a probation violation. The jury heard Kemp’s recorded statement and trial testimony, and had ample opportunity to weigh her credibility.
This evidence creates a reasonable inference appellant was motivated to commit the crimes “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); People v. Gardeley, supra, 14 Cal.4th at pp. 619-621 [gang expert’s testimony that an assault was a classic example of gang activity and that gangs rely on violent crimes to frighten the residents of the neighborhood and protect their territory sufficient to uphold gang enhancement].) We find sufficient evidence to support the jury’s finding.
Appellant argues the prosecutor engaged in misconduct by improperly impeaching the credibility and bias of appellant’s only expert witness, psychologist Dr. Robert William Shomer, who testified about the unreliability of eyewitness identification.
The prosecutor asked Dr. Shomer if he had testified at a previous trial where another prosecutor, Tal Kahana, asked him if his license had been suspended. Dr. Shomer acknowledged that he answered that his license was not suspended, but admitted he did not add that his license was inactive. Dr. Shomer explained that his license was inactive because he does not see patients.
The prosecutor then questioned Dr. Shomer about an encounter with another prosecutor, Samuel Dordulian, in the hallway after that testimony. Dr. Shomer asked Dordulian, “Why did you tell her I’m not licensed?” Dordulian said, “It’s just a game to you, isn’t it?’ and Dr. Shomer responded, “[i]t’s just a game to you. You guys created the rules for the game. I’m just playing them.”
The trial court allowed their testimony over defense objections that it was based on hearsay and involved collateral matters. The court ruled the prosecutor was entitled to cross-examine the expert witness about this testimony because it was relevant to bias, a credibility issue.
A witness may be impeached with “any matter that has any tendency in reason to prove or disprove the truthfulness of [the witness’s] testimony at the hearing.” (Evid. Code, § 780.) This includes testimony that bears on the witness’s character for truthfulness or which demonstrates bias. (Evid. Code, § 780, subd. (e).) An expert witness is subject to more extensive cross-examination than a lay witness—he or she may be asked about qualifications, any subject relating to the subject of the testimony, the matter upon which their opinion is based, and the reasons for that opinion. (Evid. Code, § 721, subd. (b).) The trial court has broad discretion to admit such evidence for impeachment. (People v. Hughes (2002) 27 Cal.4th 287.)
A statement of general animus toward the prosecution would tend to support the inference of bias. The prosecutor used the witness’s prior testimony to cast doubt on his truthfulness, suggesting that he had withheld the fact that his license was inactive. Testimony relevant to an expert’s truthfulness and bias are well within the realm of appropriate topics for impeachment.
Appellant argues the prosecutor’s question whether the expert’s license had been suspended was not asked in good faith. The prosecutor did not ask that question. His question was whether the witness was asked in a previous trial if his license had been suspended, not whether it was actually suspended. During a sidebar conference the prosecutor stated that he could present the testimony of the district attorneys involved in the incidents to support the statement. The record supports the trial court’s implicit finding that the prosecutor had a good faith belief the questions would be answered in the affirmative or could be proved. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
Finally, the cross-examination was not prejudicial. The jury heard Dr. Shomer’s testimony casting doubt on the reliability of eyewitness identification. Dr. Shomer provided a full explanation of the reason his license was not active and of the incidents with the other prosecutors. It is not reasonably probable the questions influenced the jury’s determination of guilt. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant argues the prosecutor committed misconduct during the trial, in that: (1) the prosecutor testified to facts not in evidence by telling the jury that Kemp was looking at appellant’s family during her testimony; (2) he continued to elicit testimony from Kemp after an objection had been sustained; and (3) he attacked defense counsel’s credibility.
A prosecutor’s behavior violates the federal Constitution when it comprises a pattern of conduct “‘“so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) If the conduct does not render a criminal trial fundamentally unfair, it amounts to prosecutorial misconduct under state law only if it involves “‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (Id. at p. 1215)
During his examination of Kemp, the prosecutor noted, “I can’t help but notice that the entire time you’ve been on the stand, you’ve been looking over my left shoulder at defendant’s family.” He rephrased the statement as a question after defense counsel’s objection was sustained. He asked the question to suggest that Kemp recanted her original statement because she feared retaliation from gangs in her neighborhood. It is misconduct for the prosecutor to state facts not in evidence or to imply the existence of evidence known to the prosecutor but not to the jury. (People v. Smith (2003) 30 Cal.4th 581, 617.) That was not shown in this case. The prosecutor drew a reasonable inference that Kemp changed her statement when she was forced to testify in front of appellant’s family and friends. It was clear to the jury that the questions were based on the evidence presented at trial, rather than on something known to the prosecutor but not presented to the jury.
Appellant also argues the prosecutor engaged in misconduct by repeating a question after an objection to it had been sustained. Kemp testified she fabricated her earlier statement to police. The prosecutor then asked Kemp if it was her impression the police were using her to make the statement they suggested. Defense counsel’s objection, challenging the question as argumentative and misstating the facts, was sustained. Later objections to similar questions were overruled.
A prosecutor commits misconduct by knowingly eliciting inadmissible testimony. (People v. Cunningham (2001) 25 Cal.4th 926, 1020.) Defense counsel objected to the form of the prosecutor’s questions as argumentative and misstatements of fact, not to the testimony elicited. Kemp gave long, sometimes vague answers to the prosecutor’s questions, which the prosecutor tried to clarify with follow-up questions. The prosecutor did not repeat the questions exactly, but restated the ideas in different forms based on the objections. This is not shown to be an attempt to elicit inadmissible evidence and did not constitute misconduct.
Finally, appellant claims the prosecutor committed misconduct by attacking defense counsel’s integrity when she suggested that police had neglected to determine whether appellant was left or right-handed when they knew the shooter was right-handed. In closing argument, defense counsel stated: “And when I asked [Officer Ramirez], ‘is’-‘did you determine in any way whether or not Mr. Calvin Jones is left-handed? Let’s talk about an important detail here. Shooter is right-handed. Do you think he might want to find out if Calvin Johnson is left-handed? Do you think he might have noticed sitting next to him for three weeks what hand he’s been writing with?” The court sustained the prosecutor’s objection.
Appellant challenges the prosecutor’s rebuttal to this argument: “The detective did testify on the stand that he didn’t do anything to determine whether or not the defendant was left- or right-handed. But for counsel to invite you to sort of look and make your own opinion is completely improper and completely wrong.” Defense counsel’s objection was overruled.
A direct accusation that defense counsel lacks integrity may constitute prosecutorial misconduct. (People v. Hill (1998) 17 Cal.4th 800, 832.) We evaluate such a claim by determining whether the prosecutor’s comments were a fair response to defense counsel’s remarks. (People v. Young (2005) 34 Cal.4th 1149, 1189.) Here, it is unlikely the jury viewed the prosecutor’s remarks as a personal attack on defense counsel. The prosecutor drew a reasonable inference that defense counsel was suggesting the jury consider whether appellant was right-handed based on which hand he used to take notes during the trial. Reminding the jury it should not consider facts not presented as evidence was a fair response to defense counsel’s argument. Further, the trial court instructed the jury that it was to decide the case based on the evidence admitted at trial and that the arguments of counsel were not evidence.
Appellant challenges the admission of testimony explaining the reason why Demetric Johnson, the eyewitness, was not interviewed on the night of the shootings. Detective Richard Garcia testified that Johnson was not interviewed that evening because he was extremely emotional and was covered with blood and brain matter from the shootings. At a hearing, defense counsel argued for exclusion of the evidence as more prejudicial than probative, particularly because Detective Garcia already had testified that Johnson was not interviewed that night. The prosecutor responded that the evidence was relevant to prevent the jury from drawing an inference that the delay gave Johnson an opportunity to think about and change his testimony.
We find no abuse of discretion. The evidence was relevant to provide a credible explanation for the delay in interviewing Johnson. As respondent notes, the jury heard the coroners’ graphic testimony. Detective Garcia’s short statement about Johnson’s appearance was not unduly inflammatory and was properly admitted.
Finally, appellant argues that the section 12022.53, subdivision (d), firearm enhancements must be stricken because their imposition violates subdivision (j) of that statute. Section 12022.53, subdivision (j) provides: “. . . When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment.” (Italics added.) Appellant urges a literal construction of subdivision (j) in arguing the enhancement cannot apply because the punishment for the murder convictions (§ 190.2, subd. (a)(3)) is life without parole, a greater penalty than the 25 years to life authorized by section 12022.53, subdivision (d).
The Supreme Court recently decided this issue in People v. Shabazz (Mar. 27, 2006, S131048) Cal.4th . The court held that section 12022.53, subdivision (j) “must be interpreted to require that a section 12022.53 enhancement be imposed unless the defendant is subject to a different enhancement provision that specifies a longer term.” (Id. at p. 9.) In light of Shabazz, we conclude that the trial court properly imposed two sentence enhancements of 25 years to life in prison under section 12022.53, subdivision (d), in addition to appellant’s sentence of two terms of life in prison without the possibility of parole, for the two murders.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
*Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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