P.v. Gospel

Filed 5/23/06  P.v. Gospel CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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     A jury convicted defendant Michael Josephus Gospel of the second degree murder of Audra Green and the attempted murder of Aarukell G., and found that he personally discharged a firearm in committing both offenses.  He was sentenced to a lengthy term in state prison. 

     On appeal, defendant contends the trial court committed instructional and sentencing error, and  reversal is also required because of prosecutorial misconduct.  We shall affirm the judgment.

FACTS

     Audra Green lived in a four-bedroom duplex with her boyfriend, defendant, her son, Marvel S., and her three daughters, Aarukell G., Roshandra W., and Ravyn N.  Defendant usually spent the night with Green unless they had been fighting; then he went somewhere else.  On  May 2, 2002, Green's 12-year-old nephew, Andrew B., was staying at the duplex in a room with Marvel and Ravyn. 

     Aarukell testified as follows:  In the early morning hours of May 3, 2002, Green and defendant argued loudly in the living room.  According to Aarukell, Green sold drugs and defendant wanted to buy crack cocaine to give to someone else as payment for a  ride.  After ordering defendant to leave and to stop pulling her hair, Green gave Aarukell the telephone and told her to call the police if defendant did anything.  Aarukell took the telephone into her bedroom.  Green then told defendant to get out and to never come back.  Defendant went into Green's bedroom and, in Aarukell's words, â€