Filed 11/28/05 P. v. Summers CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. HIRAM ELIXER SUMMERS, Defendant and Appellant.

B176847 (Los Angeles County Super. Ct. No. BA260968)

APPEAL from a judgment of the Superior Court of Los Angeles County. Tricia Ann Bigelow, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

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Hiram Elixer Summers appeals from the judgment entered upon his conviction by jury of first degree murder in which he personally and intentionally discharged a firearm, causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).)[1] He was sentenced to prison for 25 years to life, with a 25-year-to-life firearm enhancement.

Appellant contends (1) that the trial court erred in instructing the jury in accordance with CALJIC No. 2.21.2 that it should disbelieve appellant's exculpatory testimony as willfully false; (2) that the trial court gave misleading, incomplete and inappropriate instructions on self-defense and the lesser included offense of manslaughter; (3) that the trial court erred in admitting gory autopsy photographs of the victim; (4) that the firearm enhancement should be reversed because the trial court failed to instruct the jury that the affirmative defense of self-defense applied to the enhancement as well as to the underlying charge; (5) that the 25-year-to-life firearm enhancement constitutes cruel and unusual punishment under the circumstances of this case; and (6) that the $14,000 direct victim restitution fine should be stricken because it was not supported by credible evidence.

We affirm.

FACTS

The evidence established that on the morning of February 20, 2004, Joice Harris, a prostitute, was seated in a parked car across the street from appellant's Los Angeles residence when she saw Leavar Williams knock on appellant's door. She described Williams as her former lover, and she knew appellant as well. Appellant answered the door. After the two men spoke briefly, appellant came out of the house and swung at Williams, but he missed and fell. As appellant lay on the ground, Williams kicked him twice. Appellant ran into the house and came out with a shotgun. Shameka Davis, Williams's former girlfriend, was asleep in appellant's house. Her boyfriend woke her up, telling her Williams and appellant were fighting, and she saw Williams kick appellant once in the face. She then saw appellant come into the house, retrieve his shotgun, and run outside. Appellant fired two shots, and Williams began running down Figueroa Street.

Harris did not see Williams pull a gun or other weapon and testified that he had never carried a weapon for as long as she had known him. Davis testified that while Williams was kicking appellant, she heard Williams say that he had a gun. However, in an interview with a homicide detective shortly after the murder, she did not say that she heard Williams say anything about possessing a gun.

As Williams ran down the street, appellant got into his van and followed him down Figueroa Street. Sedrick Johnson, who was standing outside his apartment on Figueroa, approximately three-tenths of a mile from appellant's residence, saw Williams walking across the street. Johnson saw Williams throw his arm up in the air. He then saw a van drive by and make a U-turn. Williams walked toward the van. He did not appear to be angry or agitated and he did not have a weapon. As he stood two or three feet from the van, he exchanged words with the driver.[2] Johnson then heard a â€