People v. Lerma (42 Cal. App. 4th 1221, 1996)

Opinion

RAMIREZ, P. J.

A jury convicted Ricardo Lerma of two counts of second degree murder (Pen. Code, § 187, during which he used a knife (Pen. Code, § 12022, subd. (b)). The jury also found the special circumstance of multiple murder to be true. (Pen. Code, § 190.2, subd. (a)(3).) In bifurcated proceedings, Lerma admitted that he had suffered two prior convictions. (Pen. Code, § 667.) He was sentenced to prison and appeals, claiming error in the jury instructions, the admission of evidence, one of the knife use findings, and the imposition of a restitution fine. We reject his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment.

Facts

The two victims, who were brothers, lived together in a small house in Perris. Lerma was staying with them. All three men used drugs, and at one point Lerma had sold drugs to the older brother.

On the night of February 13, 1992, Lerma stabbed the younger brother in the abdomen with a knife, which penetrated to the victim’s spine. Lerma then stabbed the older brother twice before hitting him three times with a club. The younger brother made it to the home of a neighbor, where he identified Lerma as his assailant before dying. The older brother was later found dead on the floor of his living room. Shortly before the murders, Lerma had asked a former girlfriend for money, but she had none to give him. A few hours after the crimes, Lerma showed up at the trailer of a friend of his and he told the friend that he had just “stabbed two snitches.”

1.-2.

Issues and Discussion

3. Knife Use Finding

The coroner, who performed the autopsy on the older brother’s body, testified that the latter had been stabbed in the left scalp just behind the ear and in the left side of his neck. He also had two blunt force wounds to his left scalp and one to the back of his head, all of which had fractured his skull. The coroner opined that the cause of death was the latter three wounds. He stated that the knife wounds were not life threatening.

Lerma testified that he had stabbed the older brother in the neck after the latter had kicked him following Lerma’s stabbing of the younger brother. Lerma never stated when or how he additionally came to stab the older brother in the scalp. He did testify, however, that he delivered the blunt-force blows after the neck stabbing when the older brother came at him in the bedroom.

The jurors were instructed to make a true finding as to the knife use allegation attached to the murder of the older brother if they concluded that Lerma “display [ed the knife] in [an] intentionally . . . menacing manner or intentionally . . . str[uc]k . . . or hit a human being with it . . . []Q in the commission of the [murder] . . . .” The jury made such a finding. Lerma now contends it cannot stand because the knife wounds were not the cause of death.

In People v. Walker (1988) 47 Cal.3d 605 [253 Cal.Rptr. 863, 765 P.2d 70], the defendant and a codefendant entered a liquor store. The defendant then committed a number of acts, while having a gun in his hand, designed to facilitate a robbery, including telling his codefendant, after the money had been obtained, “‘. . . We’re not going to leave any witnesses.’ ” (Id., at p. 619.) Thereafter, the store owner was fatally shot. It could not be determined who fired this shot.

On appeal, the defendant criticized the trial court’s response to a jury inquiry whether the defendant had to personally fire the fatal shot in order to make a gun use finding as to the murder. The California Supreme Court stated: “Defendant . . . contend [s] the [trial] court should have instructed the jury that the gun-use allegation under the murder count could only be found true if defendant used the gun to commit the murder, and that his earlier display or use of the gun in the commission of a ‘separate’ felony (robbery) would be insufficient to support such a finding—even if he had already formed the intent to kill at that time. Defendant cites no authority for this proposition and it is far from self-evident, the jury having found that defendant murdered during commission of the felony of robbery. [Penal Code sjection 12022.5 is intended to distinguish those who are willing to use firearms while committing felonies from those who are not, and to increase the penalty for the former. [Citations.] Defendant clearly belongs in the first category. [