P. v. Smith
Filed 7/15/13 P. v. Smith CA2/7
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN BERNARD SMITH,
Defendant and Appellant.
B242247
(Los Angeles
County
Super. Ct.
No. BA382776)
APPEAL
from a judgment of the Superior Court
of
County,
Joseph A. Brandolino, Judge.
Affirmed.
Matthew
Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson and Mark E. Weber, Deputy Attorneys General, for Plaintiff and
Respondent.
______________
On the night of January
26, 1994, Kevin Bernard Smith entered a home in Studio
City, where he shot and killed
Rupert Thompson and seriously wounded Dorothy Thompson in their bedroom. Smith then ransacked the house and fled with
some jewelry. Smith appeals from a
judgment entered following his conviction by a jury on one count of
attempted willful, deliberate and premeditated murder. The jury also found true two special
circumstances allegations related to the murder count—that Smith had committed
the murder while engaged in the commission of a robbery and engaged in the
commission of a burglary (former Pen.
Code, § 190.2, subds. (a)(17)(i) & (vii)).
enhancement allegations (§ 12022, subd. (a)(1)) as to both counts and a
great-bodily-injury enhancement allegation (§ 12022.7, subd. (a)) as to the
attempted murder count. Smith contends
the imposition of the two enhancements on the attempted murder count was
improper. We affirm.
PROCEDURAL BACKGROUND
The trial court imposed
consecutive sentences of life without the possibility of parole on count on
count 1, plus five years for the firearm-use enhancement; plus seven years to
life on count 2, plus five years for the firearm-use enhancement, plus three
years for the great bodily injury
enhancement.
title="">[2]
DISCUSSION
When Smith
committed the attempted murder of Dorothy Thompson in 1994, former subdivision (e)
of section 1170 provided, “When two or more enhancements under Sections . . .
12022.5 . . . 12022.7 . . . may be imposed for any single offense, only the
greatest enhancement shall apply.
However, in cases of lewd or lascivious acts upon or with a child under
the age of 14 years accomplished by means of force or fear, as described in
Section 288, kidnapping, as defined in Section 207, sexual battery as defined
in Section 243.4, penetration or genital or anal opening by a foreign object,
as defined in Section 289, oral copulation, sodomy, robbery, carjacking, rape
or burglary, or attempted lewd or
lascivious acts upon or with a child under the age of 14 years accomplished by
means of force or fear, kidnapping sexual battery, penetration or genital or
anal opening by a foreign object, oral copulation, sodomy, robbery, carjacking,
rape, murder or burglary the court
may impose both (1) one enhancement for weapons as provided in . . . Section
12022.5 and (2) one enhancement for great bodily injury as provided in . . . Section 12022.7 . . . .†(Stats. 1993 ch. 611, § 17, pp. 3523, 3525,
eff. Oct. 1, 1993, operative Jan. 1, 1994, italics added.)
Smith
contends in sentencing him for the attempted murder, the trial court improperly
imposed both the section 12022.5, subdivision (a)(1) firearm-use enhancement
and the section 12022.7, subdivision (a) great-bodily- injury enhancement, when
only the greater (firearm-use) enhancement applied pursuant to the 1994 version
of section 1170.1. Smith maintains while
murder was one of the enumerated offenses for which both enhancements could be
imposed, attempted murder was not among them.
Smith is simply wrong.
As
acknowledged by the court in People v.
Calderon (1991) 232 Cal.App.3d 930, 938, 939, the issue turns on “whether
the words ‘or attempted’ conjoin only the phrase immediately following, i.e.,
‘lewd or lascivious acts upon or with a child under the age of 14 years,
accomplished by force or fear’ or applies to the list of offenses which
follow.†The Calderon court concluded the only reasonable interpretation of the
statute was to read “attempted†as applying to all of the offenses which
follow, including “murder.†(Calderon
at p. 939) “[T]he addition of murder as
one of the permissible attempt crimes is quite reasonable in light of the
allowance for a second enhancement for great bodily injury. While such an enhancement rarely has a place
in a murder prosecution, it quite often will in an attempted murder
prosecution. [Citation].†(Ibid; accord,
People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1737.) Thus, the trial court
properly imposed both enhancements in sentencing Smith for attempted murder.
Although
Smith relies, in part, on People v. Ahmed
(2011) 53 Cal.4th 156, in which the California Supreme Court concluded the
current version of section 1170.1 permits the sentencing court to impose both
one weapon-use enhancement and one great-bodily-injury enhancement for all
offenses, the case is of no assistance to him.
(Id. at p. 168, interpreting
sections (f) and (g) of section 1170.1.)
In tracing the legislative history of the statute, the Court noted, “A
few years after its original enactment, former subdivision (d) of section
1170.1 became former subdivision (e) of that section. (Stats. 1982, ch. 1551, § 1.5, pp. 6048,
6049.) Over the years, this former
subdivision (e) was amended several more times, sometimes in ways irrelevant
here, but sometimes to add more crimes for which the trial court could impose
both a weapon enhancement and a great-bodily-injury enhancement. (Stats. 1986, ch. 1429, § 1, pp. 5124,
5125–5126 [adding penetration of a genital or anal opening by a foreign object,
oral copulation, and sodomy, as well as an attempt to commit those crimes, and
1487, § 2, pp. 5272, 5273–5274 [adding lewd or lascivious acts upon or with a
child under the age of 14 years accomplished by means of force or fear and
kidnapping, as well as an attempt to commit those crimes]; Stats. 1992, ch.
235, § 1, pp. 1029, 1031 [adding sexual battery and attempted sexual battery];
carjacking and attempted carjacking] . . . .â€
(People v.
italics added.)
DISPOSITION
The
judgment is affirmed. The superior court
is directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment changing Smith’s sentence for
attempted willful, deliberate and premeditated murder (count 2) to a life term
plus five years for the firearm-use enhancement, plus three years
for the great bodily injury
enhancement to conform to the trial court’s oral pronouncement of judgment.
WOODS,
J.
We concur:
PERLUSS, P. J.
ZELON, J.
[1] Statutory references are to the Penal Code, unless
otherwise indicated. Since 1994, subdivisions (a)(17)(A)(i) and (vii) of
section 190.2 have been re-designated as subdivisions (a)(17)(A) and (G),
without any substantive change.
name="_ftn2" title="">[2] The
People did not seek the death penalty.
