P. v. Abel-Bey
Filed 5/21/13 P. v. Abel-Bey CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ARONDREI ABEL-BEY,
Defendant and Appellant.
C071096
(Super. Ct. No. 11F00545)
After his
life spiraled downhill from methamphetamine addiction, defendant Arondrei
Abel-Bey killed his grandfather in a confrontation that ensued following the
announcement by defendant’s wife that she was going to leave defendant. A jury found defendant guilty of first degree
murder by personally using two deadly weapons, and the trial court sentenced
him to 25 years to life in prison plus an additional one year for the weapon
enhancements.
Defendant
appeals, raising one instructional error
and one abstract of judgment error. We
order the abstract modified and affirm.
DISCUSSION
I
Pursuant To
Witnesses
Defendant
contends the trial court erred by instructing the jury with the following
language from CALCRIM No. 226: “If you
decide that a witness deliberately lied about something significant in this
case, you should consider not believing anything that witness says, or if you
think the witness lied about some things, but told the truth about others, you
may . . . simply accept that part that you think is true, and ignore the
rest.â€
Defendant
argues this instruction should not be given in a case like this one where the
defendant testifies. He reasons that
because “[a] criminal defendant always in theory has a motive to lie . . . the
defendant consistently was the one witness to which the jury was likely to
apply this instruction.†He acknowledges
that our Supreme Court rejected similar arguments against the predecessor
instruction, CALJIC No. 2.21.2, but argues that CALCRIM No. 226 “encourages,
more strongly than does CALJIC No. 2.21.2, a jury to reject the entire
testimony of the defendant if it finds a material falsehood somewhere in his
testimony.â€
title="">[1]
Defendant
also acknowledges that his contention and
arguments were rejected in People v.
Warner (2008) 166 Cal.App.4th 653.
The Warner court concluded
that CALCRIM No. 226 and CALJIC No. 2.21.2 are both “facially neutral
instructions that apply to all witnesses who testify at trial and that focus no
more on the defendant’s testimony than on that of any other witness.†(Warner,
at p. 658.) Moreover, since the
“semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are [not]
even material, let alone prejudicial,†the Warner
court “reject[ed the defendant’s] challenge to the former by deferring to a
long line of California Supreme Court cases rebuffing analogous challenges to
the latter.†(Warner, at p. 659.)
dispositive of defendant’s contention and arguments against the use of CALCRIM
No. 226 here.
II
Defendant
contends and the People concede the abstract of judgment must be modified to
uncheck box 5 that states
defendant received a sentence of life with the possibility of parole. We agree, because the court sentenced
defendant to 25 years to life in prison plus an additional one year.
DISPOSITION
The
judgment is affirmed. The trial court
shall modify the abstract of judgment to uncheck box
5 and to forward a copy of the modified abstract of judgment to
the Department of Corrections and
Rehabilitation.
ROBIE , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1]
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 may 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 particulars.â€
