Filed 3/26/14 P. v. Bice CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B246268
(Super. Ct. No. VA119571)
Plaintiff and Respondent, (Los Angeles County)
v.
GERALD N. BICE,
Defendant and Appellant.
Art Buma is angered that his next door neighbor's girlfriend is installing a
bamboo "fence" on their common property line. Buma threatens her and appellant
responds, resulting in a push and shove match of a few seconds. Appellant goes to his
home returning but a minute later with gun in hand. He goes directly to Buma, places the
muzzle under Buma's chin and pulls the trigger, instantly killing him.
Gerald N. Bice appeals from the judgment following his conviction by jury
of first degree murder (Pen. Code, §§ 187, subd. (a), 189), 1 elder abuse resulting in death
(§ 368, subd. (b)(1)), and unlawful possession of a firearm by a felon (former § 12021,
subd. (a)(1)). The jury found true allegations that appellant proximately caused the death
of the elder abuse victim (§ 368, subd. (b)(3)) and personally and intentionally used a
firearm which caused death or great bodily injury (§ 12022.53, subds. (b), (c) & (d)). He
1 All statutory references are to the Penal Code unless otherwise stated.
admitted prior serious felony and prior strike conviction allegations. (§§ 667, subd. (a),
1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The trial court sentenced him to state prison
for 85 years to life. Appellant contends the court used misleading instructions on the
doctrine of provocation which did not clearly inform the jury that a subjective standard
applies to reduce first to second degree murder, and imposed the wrong term in
sentencing him for possession of a firearm by a felon. We agree with appellant's second
contention, correct the sentence, direct the superior court to amend the abstract of
judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Art Buma, the 71-year-old victim, lived in a mobilehome park, next door to
appellant and Jacqueline Brown. On May 1, 2011, around 9:00 a.m., Buma's friend,
Gilbert Arciniega, went to Buma's mobilehome to help him with some work. That
morning, Brown started installing a bamboo fence along or near her common boundary
with Buma. Buma went outside and argued with Brown and appellant. Appellant and
Buma got into a fistfight or shoving match that lasted less than a minute.
Buma returned to his space and decided to go out to breakfast with
Arciniega. Buma was locking his mobilehome door when appellant walked towards
Buma with a pistol in his hand. Without a word being said, appellant placed the pistol
under Buma's chin and fired a shot that instantly killed Buma. Appellant stood over
Buma's body, and smoked a cigarette. Arciniega called 911. Within minutes, sheriff
deputies arrived and arrested appellant. He had no visible injuries.
Defense Evidence
Brown testified that Buma hit the side of her home with his fist, threatened
to tear down the bamboo fence she and appellant were installing, and further threatened
to bash in their faces with a pipe. Appellant ran to the other side of their trailer. Buma
threw the pipe down and left. Minutes later, Brown heard a "pop." She walked a short
distance and saw Buma lying on the ground.
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DISCUSSION
Instructions
Appellant contends the trial court erred by giving the jury misleading
instructions on the doctrine of provocation which failed to clarify that a subjective
standard applies to reduce first to second degree murder. We disagree.
The trial court instructed the jury with standard instructions on homicide
(CALCRIM No. 500), malice aforethought (CALCRIM No. 520), the degrees of murder
(CALCRIM No. 521), provocation (CALCRIM No. 522), and voluntary manslaughter
due to sudden quarrel or in the heat of passion (CALCRIM No. 570). The court informed
the jury that murder is a killing with malice aforethought, and that if it decided the
defendant committed murder, it must decide whether it was murder of the first or second
degree. (CALCRIM Nos. 520 & 521.) The court further instructed the jury that first
degree murder requires a willful, deliberate and premeditated killing; deliberation exists
where the defendant decides to kill after a careful weighing of the considerations for and
against his choice; premeditation exists where the defendant decides to kill before
committing the act that caused death; and "[a] decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and premeditated." (CALCRIM No.
521.)
In addition, the court instructed the jury regarding provocation, as follows:
"Provocation may reduce a murder from first degree to second degree and may reduce a
murder to manslaughter. The weight and significance of the provocation, if any, are for
you to decide. [¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter." (CALCRIM No. 522, italics added.) The court
then instructed the jury with CALCRIM No. 570 regarding the objective standard
applicable to the provocation which reduces murder to voluntary manslaughter, as
follows: "It is not enough that the defendant simply was provoked," and that "[i]n
deciding whether the provocation was sufficient, [it must] consider whether a person of
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average disposition, in the same situation and knowing the same facts, would have
reacted from passion rather than from judgment."
In claiming the provocation instructions were misleading, appellant stresses
their sequence: "The objective response to provocation . . . introduced in CALCRIM No.
570 was read directly after CALCRIM No. 522, which explained the subjective
provocation necessary to reduce a first degree murder to second degree." He thus argues
the instructions, as given, were likely to cause the jury to apply an incorrect, objective
standard to determine whether there was adequate provocation to reduce murder from
first to second degree. Like the other courts which have considered comparable
challenges to provocation instructions, we reject appellant's claim. (People v. Jones
(2014) 223 Cal.App.4th 995; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334-
1335.)
"In reviewing a claim that the court's instructions were incorrect or
misleading, we inquire whether there is a reasonable likelihood the jury understood the
instructions as asserted by the defendant. (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
We consider the instructions as a whole and assume the jurors are intelligent persons
capable of understanding and correlating all the instructions. [Citation.]" (People v.
Hernandez, supra, 183 Cal.App.4th at p. 1332.)
Here, when the instructions are considered as a whole, it is not reasonably
likely the jury would understand them as appellant asserts, and apply an incorrect,
objective standard in assessing the provocation required to reduce first to second degree
murder. It was instructed that if it found appellant committed first degree murder, it
should sign and return the verdict form for that offense and not complete or sign any
other form. It was also instructed that a rash and impulsive decision to kill was not first
degree murder because it was not premeditated and deliberate. It was further instructed
that if it concluded appellant "committed murder but was provoked, [it must] consider the
provocation in deciding whether the crime was first or second degree murder."
(CALCRIM No. 522.) Having been so instructed, a reasonable jury would not apply the
instructions, find provocation, and then convict appellant of first degree murder. If the
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jury found provocation, its only remaining question would be whether the killing was
second degree murder or voluntary manslaughter. CALCRIM No. 570 served to clarify
that question. (People v. Hernandez, supra, 183 Cal.App.4th at p. 1334 ["Although
CALCRIM No. 522 does not expressly state provocation is relevant to the issues of
premeditation and deliberation, when the instructions are read as a whole there is no
reasonable likelihood the jury did not understand this concept"]; People v. Rogers (2006)
39 Cal.4th 826, 877-880 [absence of a provocation instruction specifically relating to
reducing first degree murder to second degree does not mislead the jury].) The court did
not err in giving the provocation instructions.
Because we conclude there was no instructional error, we reject the related
claim that trial counsel rendered ineffective assistance by failing to request a modification
to CALCRIM No. 522. (Strickland v. Washington (1984) 466 U.S. 668; People v. Holt
(1997) 15 Cal.4th 619, 703.)
Sentence
Both parties assert the trial court committed a sentencing error. We agree.
The court sentenced appellant to a total term of 85 years to life, comprised of 50 years to
life for the count one murder (25 years to life, doubled pursuant to the three strikes law),
with 35 years for enhancements. It stayed his sentence for count two (causing the death
of an elder abuse victim), pursuant to section 654. The court further ordered the sentence
for count three (possession of a firearm by a felon) to run concurrently with his count one
sentence, but imposed a 16-month partial term sentence (one-third the middle term,
doubled) rather than the requisite full term for count three. "Because concurrent terms
are not part of the principal and subordinate term computation under section 1170.1,
subdivision (a), they are imposed at the full base term, not according to the one-third
middle term formula . . . ." (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn.
3.) We will correct appellant's count three sentence and direct the superior court to
prepare an amended abstract of judgment to reflect his modified sentence.
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DISPOSITION
We strike the 16-month sentence for the count three possession of a firearm
by a felon, and impose a full middle term sentence of two years, doubled to four years,
for count three, to be served concurrently with the count one murder sentence. The
superior court shall amend the abstract of judgment accordingly and forward a certified
copy to the Department of Corrections and Rehabilitation. The judgment is otherwise
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Clifford L. Klein, Judge
Superior Court County of Los Angeles
______________________________
Jennifer M. Hansen, 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, Margaret E.
Maxwell, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney
General, for Plaintiff and Respondent.
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