P. v. Claude
Filed 5/31/06 P. v. Claude CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KEVIN CLAUDE, Defendant and Appellant. | G032917 (Super. Ct. No. 93NF2244) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Susan E. Miller and Lise Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
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The prosecution charged defendant Michael Kevin Claude with murdering Nancy Elsayed and also alleged he personally used a firearm in committing the offense. (Pen. Code, §§ 187, 12022.5.) At defendant's first trial in October 1994, the jury found him guilty of first degree murder and returned a true finding on the firearm use allegation. Defendant appealed, but this court affirmed his conviction. (People v. Claude (Apr. 11, 1996, G017670) [nonpub. opn.].) Subsequently, the superior court vacated the conviction after granting defendant's petition for a writ of habeas corpus based ineffective assistance of counsel at his first trial.
In 2003, defendant was tried a second time. The jury found defendant guilty of second degree murder and returned a true finding as to the firearm use allegation. The trial court sentenced him to a 20-years-to-life prison term, consisting of the 15-years-to-life indeterminate term for second degree murder plus the pre-1994 upper term of 5 years on the firearm use enhancement. Defendant appeals contending the prosecutor committed misconduct during the questioning of one witness, which violated his right to due process. He also maintains the trial court erred by both admitting the victim's statements concerning his prior uncharged criminal acts and imposing the upper term for the firearm use enhancement. Finding no prejudicial error, we affirm the judgment.
FACTS
Just after 3:30 a.m. on Tuesday, June 23, 1992, a police officer patrolling an undeveloped area of Yorba Linda saw a Datsun B210 parked in an open field. Inside the vehicle he found Nancy Elsayed's body lying on the partially reclined driver's seat. She was naked except for a jumpsuit draped across her lap. Elsayed's body had 10 gunshot wounds, some resulting from a gun fired at close range. The trail of blood from her wounds indicated she had been shot while sitting in the vehicle's driver's seat. The eight shell casings discovered in the vehicle and two bullets recovered from Elsayed's body had been fired from the same .22 caliber firearm. In a purse, the police found a pager, over $180 in cash, identification for a â€
