P. v. Edwards



















Filed 6/21/12 P. v. Edwards CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. RAHEEM ABDUL EDWARDS, Defendant and Appellant.

G045022 (Super. Ct. No. 04NF4451) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge. Affirmed.

Marleigh A. Kopas, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and
Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant Raheem Abdul
Edwards appeals from the judgment entered after a jury found him guilty of href="http://www.fearnotlaw.com/">first degree murder and found true
special circumstance allegations that the murder was committed during the
commission of a robbery and during the commission of a burglary within the
meaning of Penal Code section 190.2, subdivision (a)(17)(A) and (G),
respectively. (All further statutory
references are to the Penal Code.)
Defendant was sentenced to a prison term of life without the possibility
of parole.

Defendant does not
challenge his conviction for first degree murder. He argues the trial court committed
prejudicial error when it instructed the jury on the special circumstance
allegations on the ground the court did not expressly instruct the jury to
separately consider those two allegations.
Defendant argues this court should reverse the findings on the special
circumstance allegations and remand the matter to the trial court with
directions that he be sentenced to 25 years to life. Defendant also contends section 190.2 is
unconstitutional.

We affirm. Even assuming the trial court erred by
failing to expressly instruct the jury that it must separately consider the two
special circumstance allegations, for the reasons we will explain, any such
error would have been harmless beyond a reasonable doubt. As the California Supreme Court has upheld
the constitutionality of section 190.2, subdivision (a)(17), we must
reject defendant’s constitutional challenge to that statute. (See People
v. Nelson (2011) 51 Cal.4th 198, 225.)



FACTS

I.

December 15, 2000 Murder of Haeng Shin Kim

Around 8:30 a.m. on December 15, 2000, defendant and his good friend,
Robert Feeney, sat on a bench at a bus stop across the street from the Lucky 7
liquor store in Anaheim. After about 30 minutes, during which time
they discussed stealing money from the store, defendant and Feeney went into
the store.

The store’s owner, Haeng
Shin Kim, followed defendant and Feeney to the back of the store. Defendant heard a gunshot and saw Kim trying
to escape. Defendant heard two or three more
gunshots and heard Feeney tell him to grab the money. He ran to the cash register, grabbed bills
and food stamps, and jumped over Kim’s body as he ran out of the store with
Feeney; Kim had been fatally shot in the back of the neck and in the lower
back. Defendant and Feeney fled to Las
Vegas, and then to New York.

II.

Defendant’s 2005 Interview with Sergeant Sullivan

In September 2005, in a
jail cell in New York, Sergeant
Charles Sullivan of the Anaheim Police Department interviewed defendant about
Kim’s murder. Defendant told Sullivan
that he and Feeney were “like brothers” and that in December 2000, he lived
with Feeney’s family. Defendant stated
that he came home around 7:00 a.m.
on December 15, 2000,
after completing his graveyard shift at Disneyland, to
find Feeney on his way out. Feeney said
he “wanted to get some extra money.”
Feeney told defendant he wanted to seek out some friends in his old
neighborhood. Feeney also said he was
going to do a robbery.

Ultimately, Feeney
proposed that he and defendant steal money from the store. Feeney told defendant he wanted him to divert
the attention of the store’s clerk to the back of the store so Feeney could
take money out of the cash register.
Defendant and Feeney watched the store and the customers going in and
coming out of it. They waited until it
appeared there were no customers inside the store before they entered.

Defendant told Sullivan
that after he and Feeney entered the store and put a few things on the counter,
defendant walked to a storage area in the back or at the side of the store and
the clerk (later identified as Kim) followed him. Defendant stated that he was “stallin’ for
time, stallin’ for time” when he heard a gunshot. Defendant ducked and then heard two or three
more gunshots before he heard Feeney tell him to grab the money. Defendant grabbed the money and jumped over
Kim, who was lying face down on the floor near the front door of the store,
before running out of the store.
Defendant and Feeney fled to Las Vegas
and then to New York where Feeney
was referred to as “Bobby Two Shots.”

Defendant also told
Sullivan that although he knew he was going to help Feeney “do a robbery,”
defendant did not have a gun with him on December 15, 2000, and did not know Feeney had a gun
with him until defendant heard the first gunshot in the store. Defendant admitted he had seen Feeney with a
gun on an unspecified occasion and knew that Feeney had books on guns.

III.

Defendant’s Trial Testimony

At trial, defendant
testified about a similar, general sequence of events leading to Kim’s murder,
as the one he described during his interview with Sullivan. Contrary to statements made during that
interview, defendant testified that he thought Feeney was joking when he spoke
about robbing the store and that he and Feeney entered the store for the
purpose of purchasing cigars and something to drink.

Defendant testified that
after he got home from work around 7:00 a.m.
on December 15, he was surprised to see Feeney in the living room because
he was not an early riser. Defendant
asked Feeney where he was going and Feeney said he was going to “get some
money.” Feeney told defendant that he
was going to see some friends at some apartments in “Del Monte” and that he was
going to see a guy and borrow some money from him. Defendant told Feeney that he was going to go
with him because it seemed “something was really off” and defendant did not
want Feeney to get into trouble.
Defendant and Feeney walked to some apartments but did not find the
person whom Feeney was looking for or anyone else whom he might know. Defendant and Feeney sat down on a bench at a
bus stop.

Defendant testified
Feeney asked him, “what am I going to do?
Christmas is coming up. I got to
do something for my parents.” He also
testified as follows:

They discussed going
into the store and “getting some money.”
Feeney stated he wanted defendant to go into the store and hide in the
back to distract the clerk while Feeney stole the money. Defendant thought Feeney was joking and told
him they did not have to do that because he was working and Feeney could have
anything he wanted from defendant.
Feeney brushed off defendant because he had a problem accepting things
from people.

Defendant and Feeney
continued to sit on the bench and talked about robbing the store. Defendant calmed Feeney down. Defendant pointed out the number of people
going into and coming out of the store and told Feeney that robbing the store would
not work. They agreed that they would go
into the store, buy a few things, and then return home where Feeney could smoke
pot and drink alcohol.

Defendant testified that
after he and Feeney walked into the store, defendant put cigars and a soda on
the counter, which he intended to buy with money he had with him. Defendant went to a storage area in the back
of the store because he and Feeney did not see the type of alcohol Feeney
wanted; defendant could not remember the type of alcohol they were looking for,
except that it was probably “some kind of white liquor.”

Kim followed defendant
to the storage area. Defendant testified
he thought that if he kept Kim distracted, Feeney might have the opportunity to
steal money from the store and leave. Defendant
testified he “kind of was stalling by saying, where’s the liquor? What kind of liquor,” while Kim told
defendant, “you’re not supposed to be back here.”

Defendant testified he
heard a gunshot and saw Kim “just try to get away.” Defendant said he crouched down and was “just
out of it.” Kim had moved away and out
of defendant’s sight when defendant heard two or three more gunshots, and then
heard Feeney say, “go grab the money.”
Defendant stated he assumed something had happened to Kim after he heard
the gunshots. Defendant grabbed the
money and ran to the back door where Feeney was. The back door was locked. Feeney turned defendant and said, “go, go,
go.” Defendant and Feeney ran out the
front door.

Defendant and Feeney ran
to the house of one of Feeney’s friends; the friend gave them a ride home. Defendant and Feeney later fled to Las Vegas,
and then to New York.

Defendant testified that
prior to hearing the gunshots, he had no idea Feeney had a gun with him or
might use a gun to rob the store.
Defendant testified he had no idea Kim’s life was or could be in danger. Defendant acknowledged during cross‑examination
that robbery is dangerous because “lots of things could happen.”

Defendant testified
that, at the time he left the store, after seeing Kim on the floor, he did not
think about stopping to administer first aid because he did not know how to do
so. He claimed he did not think about
stopping to call the police or 911 to seek medical assistance for Kim; he
thought Kim was already dead.

Defendant testified that
a surveillance tape of the store showed Kim limping toward the front door while
Feeney pointed a gun at him. Defendant
stated the tape also showed Kim thereafter lying on the floor of the store when
defendant, followed by Feeney, ran out of the store.href="#_ftn1" name="_ftnref1" title="">[1]



PROCEDURAL BACKGROUND

Defendant was charged in
an information with one count of murder
in violation of section 187, subdivision (a). The information contained two special
circumstance allegations that (1) pursuant to section 190.2,
subdivision (a)(17)(A), defendant committed murder while he “was engaged
in the commission of the crime of robbery in violation of Penal Code
section 211 and 212.5”; and (2) pursuant to section 190.2,
subdivision (a)(17)(G), defendant committed murder while he “was engaged
in the commission of the crime of burglary in the first or second degree” in
violation of section 460.

The jury returned a
verdict form finding defendant guilty of first degree murder. The jury found both special circumstance
allegations true and returned a separate form for each of its true findings as
to the special circumstance allegations.
The trial court sentenced defendant to a prison term of life without the
possibility of parole. Defendant
appealed.

We set this matter for href="http://www.fearnotlaw.com/">oral argument and invited the parties to
submit supplemental briefs addressing, inter alia, whether the instructional
error asserted by defendant in this appeal was harmless beyond a reasonable
doubt. We have reviewed the parties’
supplemental briefs.



DISCUSSION

I.

The Instructional Error as to the Special
Circumstance Allegations Was Harmless Beyond a Reasonable Doubt.

The trial court has a
duty to instruct “on general principles of law that are commonly or closely and
openly connected to the facts before the court and that are necessary for the
jury’s understanding of the case,” even in the absence of a request. (People
v. Mayfield (1997) 14 Cal.4th 668, 773.)
A special circumstance allegation is “sui generis—neither a crime, an enhancement, nor a sentencing
factor.” (People v. Friend (2009) 47 Cal.4th 1, 71.) The California Supreme Court has held, “‘we
do not believe the courts can extend a defendant less protection with regard to
the elements of a special circumstance than for the elements of a criminal
charge.’” (Ibid.)

Defendant argues the
trial court erred by instructing the jury with an incomplete version of CALCRIM
No. 700. Form CALCRIM No. 700
states in its entirety: “If you find
(the/a) defendant guilty of first degree murder, you must also decide whether
the People have proved that [one or more of] the special circumstance[>s] is true. [¶] The People have the burden of proving
(the/each) special circumstance
beyond a reasonable doubt. If the People
have not met this burden, you must find the special circumstance has not been
proved. [You must return a verdict form
stating true or not true for each special circumstance on which you all agree.] [¶] In order for you to return a finding that
a special circumstance is or is not true, all 12 of you must agree. [¶] [You
must (consider each special circumstance separately/ [and you must] consider
each special circumstance separately for each defendant).]” (Italics added.)

Here, the version of
CALCRIM No. 700, which was given to the jury, was not modified to reflect
that more than one special circumstance had been alleged in this case. Defendant’s instructional error argument
focuses on the failure of the trial court to include the final sentence of form
CALCRIM No. 700, which would have expressly instructed the jurors they
must consider each special circumstance allegation separately. The version of CALCRIM No. 700 given in
this case states: “If you find the
defendant guilty of first degree murder, you must also decide whether the
People have proved that the special circumstance is true. [¶] The People have the burden of proving the
special circumstance beyond a reasonable doubt.
If the People have not met this burden, you must find the special
circumstance has not been proved. [¶] In
order for you to return a finding that a special circumstance is or is not
true, all 12 of you must agree.”

Defendant argues the
trial court had a sua sponte duty to expressly instruct the jury that it must
consider the special circumstance allegations separately. In support of this argument, defendant cites
the Bench Notes accompanying form CALCRIM No. 700, which, in turn, solely
cite People v. Holt (1997) 15 Cal.4th
619, 681 (Holt), for the proposition
that the trial court has a sua sponte obligation to instruct the jury to
consider each special circumstance allegation separately. The Bench Notes to CALCRIM No. 700 also
state, without citing to legal authority, that the court is to “[g]ive the
bracketed paragraph [of form CALCRIM No. 700] if more than one special
circumstance is charged.” (Judicial
Council of Cal., Jury Instns. (2012) Bench Notes to CALCRIM No. 700,
p. 463.) The California Supreme
Court in Holt, supra, 15 Cal.4th at pages 680‑681, however, did not
address whether the trial court has a sua sponte obligation to expressly
instruct that the jury must consider the special circumstance allegations
separately, as set forth in the bracketed language in form CALCRIM
No. 700.

In Holt, supra, 15 Cal.4th
at pages 638‑639, the defendant was convicted of first degree
murder, first degree robbery, rape, sodomy, and first degree burglary. The jury also found true the special
circumstance allegations that the murder occurred during the commission or
attempted commission of robbery, rape, sodomy, and burglary. (Id.
at p. 639.)

The defendant in >Holt argued the trial court “did not
properly describe the special circumstances” when it instructed the jury that,
if the defendant was convicted of murder in the first degree, it “‘must then
determine if one or more of the following special circumstances are true or not
true: robbery, burglary, rape or
sodomy.’” (Holt, supra, 15 Cal.4th
at p. 680.) The defendant argued
the court erred by “failing to explain in the introductory instruction (CALJIC
No. 8.80 [the predecessor to CALCRIM No. 700]) that the substantive
crimes and the special circumstances differed since, for the latter allegations
to be found true, the jury was required to find that the murder was committed
‘during the commission’ of one or more of the underlying crimes.” (Ibid.) The defendant further argued the error
“assertedly was compounded when the court included all four substantive
offenses in the subsequent instruction [citation] instead of giving a separate
instruction based on each substantive offense.”
(Ibid.)

The California Supreme
Court rejected the defendant’s arguments and concluded, “[t]he instructions,
read together, properly stated the law.”
(Holt, supra, 15 Cal.4th at p. 680.)
The Supreme Court held: “It is
clear from this that the jury was expressly told that there were four special
circumstances, each of which had to be separately considered, and that to be
found true each special circumstance required finding that the murder was
committed while the defendant was engaged in the commission of the particular
underlying crime.” (Id. at p. 681.) The
court did not address whether the trial court had a sua sponte obligation to
expressly instruct the jury that special circumstance allegations must be
considered separately. In that case, the
jury had been so instructed. (>Ibid.)href="#_ftn2" name="_ftnref2" title="">[2]

For purposes of our
analysis, we assume the trial court had a sua sponte obligation to expressly
instruct the jury that it had to separately consider each special circumstance
allegation, and that the court failed to do so.
We therefore consider whether such an error was harmless on this record.


Defendant argues we must
apply the harmless beyond a reasonable doubt standard under >Chapman v. California (1967) 386 U.S. 18,
24 (Chapman) in determining whether
the instructional error at issue was prejudicial. He argues that even if the harmless error
standard set forth in People v. Watson
(1956) 46 Cal.2d 818 (Watson)
applied, “[i]t is at least reasonably probable that absent this error, not all
twelve jurors would have found the special circumstances to be true.” (See People
v. Friend, supra, 47 Cal.4th at
p. 79 [“When reviewing a claim based on assertedly ambiguous instructions,
we inquire whether the jury was reasonably likely to have construed them in a
manner that violates the defendant’s rights”].)

It does not matter
whether the Chapman or >Watson harmless error standard applies
because it is unclear how, in light of all the instructions given to the jury
and the verdict and separate findings as to the special circumstance
allegations returned by the jury, a reasonable jury could have improperly
conflated the two special circumstance allegations during deliberations and
failed to make the required findings for each special circumstance allegation.href="#_ftn3" name="_ftnref3" title="">[3]

The jury was instructed
on the substantive murder charge that, in order to prove defendant guilty of
first degree murder under a felony‑murder theory, the prosecution had to
prove (1) defendant committed or aided and abetted another in committing
the crime of robbery or burglary; (2) defendant intended to commit or
intended to aid and abet the perpetrator in committing the crime of robbery or
burglary; (3) if defendant did not personally commit the robbery or burglary,
then a perpetrator, whom defendant was aiding and abetting, personally
committed the crime of robbery or burglary; (4) while committing the
robbery or burglary, the perpetrator caused the death of another person; and
(5) there is a logical connection between the cause of death and the
robbery or burglary. The jury was given
CALCRIM No. 1600, defining the elements of robbery, and also CALCRIM
No. 1700, containing the elements of burglary.

The jury found defendant
guilty of first degree murder. The
verdict form stated: “We the Jury in the
above‑entitled action find the Defendant, RAHEEM ABDUL EDWARDS, GUILTY of
the crime of FELONY, to‑wit:
Violation of Section 187(a) of the Penal Code of the State of California
(MURDER in the First Degree) as charged in COUNT 1 of the
Information.” The jury’s verdict is not
challenged in this appeal.

As to the special
circumstance allegations, in addition to the version of CALCRIM No. 700
quoted ante, the jury was instructed
with CALCRIM No. 703, as follows:
“If you decide that . . . the defendant is guilty of first
degree murder but was not the actual killer, then, when you consider the
special circumstance[s] of Murder during the commission of Robbery/Murder
during the commission of Burglary, you must also decide whether the defendant
acted either with intent to kill or with reckless indifference to human
life. [¶] In order to prove these
. . . special circumstance[s] for a defendant who is not the actual
killer but who is guilty of first degree murder as (an aider and abettor[)],
the People must prove either that the defendant intended to kill, or the People
must prove all of the following: [¶]
1. The defendant’s participation in the crime began before or during the
killing; [¶] 2. The defendant was a major participant in the crime; [¶]
AND [¶] 3. When the defendant participated in the crime, (he) acted with
reckless indifference to human life. [¶]
[A person acts with reckless indifference to human life when he knowingly engages
in criminal activity that he knows involves a grave risk of death.] [¶] If the defendant was not the actual
killer, then the People have the burden of proving beyond a reasonable doubt
that . . . he . . . acted with either the intent to kill or
with reckless indifference to human life and was a major participant in the
crime for the special circumstance of Murder during the commission of Robbery
or Murder during the commission of Burglary to be true. If the People have not met this burden, you
must find . . . this special circumstance . . . has . . .
not been proved true.”

The jury was also
instructed with CALCRIM No. 3550 which stated in relevant part: “Your verdict and any findings
. . . must be unanimous. This
means that, to return a verdict, all of you must agree to it.”href="#_ftn4" name="_ftnref4" title="">[4]

The jury returned two
separate forms recording its findings as to the special circumstance
allegations. The jury returned a form
entitled “FINDING,” which stated: “We
the Jury in the above‑entitled action FIND IT TO BE TRUE that the SPECIAL
CIRCUMSTANCE exists to‑wit: Murder
While Engaged in the Commission of Burglary, as alleged in the Information,
within the meaning of Penal Code Section 190.2(a)(17)(G).”

The jury returned a
second form entitled “FINDING,” which stated:
“We the Jury in the above‑entitled action FIND IT TO BE TRUE that
the SPECIAL CIRCUMSTANCE exists to‑wit:
Murder While Engaged in the Commission of Robbery, as alleged in the
Information, within the meaning of Penal Code
Section 190.2(a)(17)(A).” The clerk
of the trial court read the jury’s verdict and findings as quoted >ante, and asked: “Ladies and gentlemen of the jury, [are
these] your verdict and findings?” The
reporter’s transcript states that in response to this question: “Jury answers in the affirmative.”

The trial court stated
the clerk would summarize the verdict and findings and ask each juror
individually if he or she had personally rendered the verdict and findings in
this case. The clerk stated: “Verdict as to count 1, guilty of murder
in the first degree. [¶] Finding of true
that the special circumstance exists, murder while engaged in the commission of
burglary. [¶] Finding of true that the
special circumstance exists, murder while engaged in the commission of
robbery.” The clerk asked the jurors,
“[i]s this your verdict and are these your findings.” Each juror individually responded,
“[y]es.”

In his opening brief,
defendant argues, “[b]ecause not informed as required by law that it must
consider each of the two special circumstances separately, [defendant]’s jury
thus was denied the opportunity to ‘consider the full range of possible
verdicts’ [citation], and to find [defendant] guilty of only first degree
felony‑murder.” Defendant also
argues, “[i]f properly instructed as required by law, there is a reasonable
possibility that at least one juror would have determined the killing was
felony‑murder and nothing more.”
But, defendant does not analyze how
the failure to expressly instruct the jury to consider each special
circumstance allegation separately might have had such an effect. Neither defendant’s appellate briefs nor the
record itself shows how the jury might have done anything other than separately
determine the truth of the elements for each of the special circumstance allegations. Unlike Holt,
supra, 15 Cal.4th at page 680,
defendant does not argue the trial court failed to explain that the substantive
offense and the special circumstances differed.
Instead, defendant argues the jury might not have understood it had to
consider each special circumstance allegation separately from the other. Defendant does not explain, however, how the
jury might have labored under such a misunderstanding.

We have assumed that the
express statement the jury must consider the special circumstance allegations
separately should have been included in the given version of CALCRIM
No. 700. We also note the special
circumstance allegations were inconsistently referred to as both singular and
plural in the jury instructions and in the prosecutor’s closing argument. The record simply does not show how such
imperfections had impacted the jury’s findings on the special circumstance
allegations given our analysis of the full record, especially considering the
two separate special circumstance findings.

Defendant argues the
prejudice caused by the instructional error is evidenced by the jury’s requests
to the trial court during deliberations, which revealed “they were struggling
to determine to what extent [defendant] was culpable with respect to the
special circumstances.” But, a review of
the jury’s requests and the court’s responses to those requests confirms that
any question the jury might have had as to whether robbery and burglary are
separate crimes was correctly answered by the court. The jury’s first request sought a clean copy
of a “not guilty” form on the substantive murder count due to a mistake made on
the form that had been given to the jury.
This request did not relate to the special circumstance allegations.

The jury’s second
request sought “[c]larification of the definitions of burglary and
burglary.” Although the jury might have
intended to seek clarification of the definitions of burglary and >robbery, the trial court answered the
question by stating, “[f]or your evaluation of Count 1 and the special
circumstances, burglary is defined in pages 40 through 42 of the
packet.”

The jurors’ third
request contained three parts. The jury
asked: “Can burglary become robbery
while in process? [¶] Are those
(burglary & robbery) inclusive or exclusive? [¶] Can you be guilty of robbery if you are
not the one using force?” The court
responded to the first two questions of the jury’s request by stating: “Burglary and Robbery are separate crimes. A burglary is complete upon entry if one
enters a building with the intent to commit theft.”href="#_ftn5" name="_ftnref5" title="">[5] As to the question regarding force, the court
answered: “Yes. See page 24 of the packet. Such a person could be guilty of robbery if
it is shown beyond a reasonable doubt that he aided and abetted in the
robbery.” Although defendant argues the
trial court’s responses were inadequate, he does not argue that they were in
any way inaccurate. The exchange between
the jury and the court, regarding those requests, shows the jury was expressly
informed of the separate nature of the crimes of burglary and robbery, the two
crimes which underlie the special circumstance allegations.

In sum, under either the
Chapman or Watson harmless error standard, we conclude, in light of the
totality of the given jury instructions, the trial court’s responses to the
jury’s requests during deliberations, and the state of the verdict and findings
forms returned by the jury, the failure to expressly instruct the jury that it
must consider the special circumstance allegations separately constituted
harmless error.

II.

Defendant’s Constitutional Challenge to Section 190.2 Is
Without Merit.

In his opening brief,
defendant argues, “notwithstanding stare decisis principles, here the special
circumstance statute was unconstitutional as applied, and violated the href="http://www.mcmillanlaw.com/">Eighth Amendment, by failing to narrow
the class of persons eligible for life in prison without parole, as it
permitted the jury to use the same facts to establish both first degree
(burglary and robbery) felony-murder as well as the ‘enhancing’ special
circumstances of murder during the commission of a burglary and a
robbery.” (Some capitalization
omitted.) Defendant further states in
his opening brief that he “acknowledges that the California Supreme Court ‘has
consistently rejected the claim that the statutory special circumstances,
including the felony‑murder special circumstance, do not adequately
narrow the class of persons subject to the death penalty.’ [Citation.]
Instead, it has repeatedly authorized ‘use of a felony to qualify a
defendant both for first degree murder and for a special circumstance.
. . .’ [Citations.] Under the doctrine of stare decisis, these
decisions are controlling at this time.
[Citation.] [¶] But California’s
statutory death penalty (or LWOP) . . . sentencing scheme has never
expressly been approved by United States Supreme Court
review. . . . [¶]
Therefore, this issue is raised to preserve it for federal review, if in the
future the United States Supreme Court determines that section 190.2,
subdivision (a) violates the Eighth Amendment.”

In People v. Nelson, supra,
51 Cal.4th at page 225, the California Supreme Court held that “California
homicide law and the special circumstances listed in section 190.2
adequately narrow the class of murderers eligible for the death penalty. [Citations.]
Specifically, the felony‑murder special circumstance
(§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the
pool of those eligible for death.” As
the California Supreme Court has upheld the constitutionality of
section 190.2, subdivision (a)(17), we must reject defendant’s
constitutional challenge to that statute.
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)



DISPOSITION

The judgment is
affirmed.







FYBEL,
J.



WE CONCUR:







RYLAARSDAM,
ACTING P. J.







BEDSWORTH, J.