Filed 7/11/16 P. v. Simpson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063049

v.                                                                      (Super.Ct.No. FMB1300626)

TOREY DESHAUN SIMPSON,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed as modified.

         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn

and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       On October 18, 2013, the victim went to the apartment of a friend. When the

victim arrived at the apartment, defendant and appellant Torey Deshaun Simpson

ambushed him outside the apartment and shot him. Defendant then forced Tiffany Orona

to drive him away from the scene, threatening to kill her and her children if she spoke to

the police. The victim sustained 10 gunshot wounds and died at the hospital. Defendant

was convicted of first degree murder with an enhancement for personal gun use causing

death or great bodily injury, dissuading a witness from reporting a crime, and making

terrorist threats. Defendant makes the following claims on appeal:

       1.       The trial court committed reversible error when it failed to instruct the jury

pursuant to CALCRIM Nos. 334 or 335 that one of the witnesses who testified was an

accomplice.

       2.       The trial court erroneously admitted the victim’s statement identifying

defendant as the shooter as a dying declaration pursuant to Evidence Code section 1242.

       3.       The sentence on his conviction of making terrorist threats must be stayed

pursuant to Penal Code section 654.1

                       FACTUAL AND PROCEDURAL HISTORY

       A.       PROCEDURAL HISTORY

       Defendant was found guilty of first degree murder (§ 187; count 1). In addition,

he was found guilty of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1);

count 2), and of making criminal threats (§ 422, subd. (a); count 3). The jury also found


       1    All further statutory references are to the Penal Code unless otherwise indicated.


                                               2
true the allegation that he personally and intentionally discharged a firearm, which

proximately caused death to the victim (§ 12022.53, subds. (b), (c) & (d)). Defendant

admitted he suffered one prior conviction, for which he served a prior prison term

(§ 667.5, subd. (b)).

       Defendant was sentenced to 25 years to life on count 1, plus a consecutive 25-

years-to-life sentence for the gun-use enhancement. In addition, the trial court imposed a

consecutive three-year sentence on count 2, plus one year for the prior conviction, for a

total of four years. The trial court ordered a two-year sentence on count 3, which was to

run concurrent to count 2. Defendant received a total sentence of 50 years to life plus

four years.2

       B.      FACTUAL HISTORY

               1.       THE SHOOTING

       On October 18, 2013, Overa Lightfoot was living with her husband (the victim)

and her eight children in Twentynine Palms. That evening, Overa3 had cooked dinner at

their house. The victim received a call from Jerry Jackson and they argued on the phone

about money Jerry owed to the victim. The victim had Overa drive him to Jerry’s

apartment, located at the Twentynine Palms building.



       2 Defendant had been charged in the Information with having suffered several
prior convictions under section 667.5, subdivision (b). The trial court struck the other
prior convictions at the time of sentencing.

       3  Several of the witnesses share the same last name. We refer to these witnesses
by their first names not out of disrespect but in order to avoid any confusion.


                                             3
       When they arrived at Jerry’s house, the porch light was off; Jerry always kept the

porch light on. Overa stayed in the car while the victim went to the door. The victim

knocked on the door but Jerry did not answer. A man approached the victim from behind

holding a small black gun. He said to the victim, “[N-word] I gotcha now.” The victim

turned around and said, “What?” The victim pulled up his shirt to show that he did not

have a gun.

       Overa recognized the man’s voice as belonging to defendant. Defendant was

wearing a red shirt and jeans. Defendant then shot the victim. The victim tried to dodge

the bullets but defendant moved closer and shot him additional times. Overa estimated

defendant shot at the victim nine times.

       Defendant appeared to run out of bullets. He looked up and saw Overa in the car.

He ran away. The victim fell through the front door of the Jacksons’ apartment. The

victim was grabbing his stomach. Overa ran to him. She asked him who had shot him.

He responded, “[N-word] ‘T’ over there. That [N-word] ‘T’ did it.” Overa knew

defendant as T. Jerry’s wife, Leilani May Jackson, called 911.

       Jerry leaned down and rubbed the victim’s back. The victim accused Jerry of

setting him up. The victim said, “I’m coming back for you when I come out of this.”

The victim had been shot in both legs, both arms and his abdomen. He was bleeding

from all of these areas and his mouth.

       Overa went outside and called her sister. Jerry also came outside and it appeared

to Overa he was doing something on his cellular telephone. While Leilani was on the

phone with the 911 operator Overa told Leilani defendant had shot the victim.


                                            4
       Defendant had previously confronted the victim and accused him of being a

snitch. Additionally, defendant’s family had confronted the victim on two prior

occasions. Overa had previously seen defendant and his family at the Jacksons’

apartment. Overa was scared to testify because she was worried defendant’s family

would hurt her. Overa denied she started seeing someone just a few months after her

husband was killed. A life insurance policy in the amount of $70,000 had been

purchased for the victim six months prior to his murder; Overa was the beneficiary.

       Diana Fielding lived in the Twentynine Palms Apartments. On the evening of

October 18, Fielding walked from her apartment to her daughter’s apartment, which was

also in the complex. On her way, she noticed a black SUV with tinted windows in the

parking lot; two people were inside. When she came back from her daughter’s

apartment, about 15 to 20 minutes later, they were still sitting in the SUV.

       Fielding had her screen door open and could see out. She could see the passenger

in the SUV. She then heard several gunshots; she dropped to the floor. The SUV took

off a few minutes later. She did not think the passenger or driver got out of the SUV but

she could not see the back doors.

       Leilani did not want to testify. She lived with Jerry and their daughter. Defendant

was a good friend that she had known for eight years; she had heard him called T.

Leilani was also friends with the victim. The victim had helped Leilani and Jerry by

giving them money when Jerry had surgery. Defendant was at their apartment around

2:40 p.m. on the day of the shooting. Their daughter was staying at a neighbor’s house

that evening.


                                             5
       Leilani was watching television in her bedroom when she heard what she thought

was knocking on the front door. She thought it was her daughter so she and Jerry went to

the door. Leilani then realized it was gunshots and Jerry forced her to the ground. They

heard more gunshots. She thought her daughter was being shot. She immediately called

911.

       While she was on the floor, the front door opened and the victim fell into the

house. She heard him say, “they set me up.” She heard the victim say to Jerry, “Please

don’t let me die.” Leilani ran out to find her daughter. Leilani ran to the neighbor who

had her daughter and her daughter was safe; Leilani asked her neighbor to keep her

daughter. Leilani claimed when she ran out, Overa was still in her car texting someone.

When she ran back, Overa was still in her car. Overa came in the house a few seconds

later but did not seem upset.

       Overa told Leilani that T shot her husband but Leilani insisted at trial she knew

several persons named T. She heard the victim say that T shot him; he never said

defendant’s name. Leilani denied she told the police T was seeing a girl with whom the

victim had been having sex.

       Jerry met defendant in 2006. He never called defendant T but had heard him

called that; he also knew other people who had that name. He had also known the victim

for eight to nine years.

       Jerry saw the victim at a gas station earlier in the day and made a deal that he

would sell the victim some codeine cough syrup. Jerry told the victim he could not have

it for free in exchange for a loan the victim had made to Leilani while Jerry was in the


                                             6
hospital six or seven years prior. Jerry spoke with defendant around 4:00 p.m. because

defendant was supposed to bring him some “weed.” Later, Jerry and the victim argued

over the phone. Jerry told him to come to the apartment to discuss the loan and the cough

syrup.

         There was a knock on the door and Jerry believed it was their daughter. He then

heard gunshots. He got to the door and heard the victim screaming for his life, begging

the other person not to shoot him. Jerry opened the door and the victim fell in. Leilani

immediately ran out to check on their daughter. Jerry called 911; the call was made at

7:14 p.m. Jerry reported that a shooting had happened just outside his door and that the

victim fell into his apartment. Jerry reported, “He-he-he’s about to go.” The victim told

Jerry to help him and not to let him die. Jerry believed that the victim was about to die.

         Jerry claimed Overa came into the apartment about 15 to 20 minutes after the

victim was shot. Overa did not seem concerned about the victim being shot. Overa did

not comfort the victim.

         Brandie Johnson lived in the Twentynine Palms Apartments. She lived with her

two children. Johnson testified she knew defendant but did not know that he went by the

nickname T; she admitted she had previously stated she knew defendant as T. In October

2013 she purchased marijuana from defendant four or five times each day. She was in

her apartment the night of the shooting. When she heard the shots, she got her children to

a safe place in her apartment and waited. She went outside 15 minutes later. She talked

to defendant after the shooting, but she insisted it was only about her “weed.”




                                             7
              2.     DEFENDANT’S ESCAPE

       Tiffany Orona lived on Sun Valley Drive in Twentynine Palms on October 18,

with several of her children. Orona had met defendant and his family at neighborhood

barbecues. That evening, around 6:30 p.m., she was in the backyard smoking a cigarette

when she heard gunshots. They sounded close. About 10 to 15 minutes later, defendant

showed up at her house. Defendant told Orona he needed a ride. He was wearing jeans

and a white tank top. Orona told him she could not leave the kids alone but he persisted

that he needed a ride. She asked him why he needed a ride. Defendant got angry and

said, “Bitch, don’t ask questions.”

       Orona grabbed her purse from her bedroom. Defendant was waiting for her in the

garage and was holding a black garbage bag. It looked like the type of bag she kept

under her sink. At the top of the bag, she saw some type of red clothing. Defendant

directed her to drive in a direction away from the shooting. He squeezed her shoulder to

direct her.

       During the ride, defendant made and received several phone calls on his cellular

telephone. During one phone call, she heard there was an “APB” put out on a SUV.

Defendant then called “Doobie,” who Orona knew as Shun Young. Defendant asked

Doobie if he had gotten rid of the vehicle. Orona was scared. Orona started crying

because she was worried he would hurt her. Orona tried to look at defendant’s cellular

telephone to see what he was texting, but defendant told her not to “fuckin” look at him.




                                            8
       Defendant had Orona drive him to a nearby college so defendant’s dad could pick

him up. She parked in the parking lot at the school. Defendant got out of the car and

Orona asked if she could leave. Defendant reached through the driver’s side window and

pulled the back of Orona’s head and shoulders. He pulled her toward him and told her to

keep her mouth shut. He told her that if she said anything, he would have her and her

children killed. He said there would be people watching her and her children. Defendant

told her that he would make sure her kids were killed first so that she would suffer before

she was killed. Orona asked him why he did it. He responded she should mind her own

“fuckin” business. Defendant’s dad arrived five or 10 minutes later.

       Orona thought about immediately calling the police but was too scared defendant

would find out and hurt her and her children. Orona found out the victim had been killed

the following morning. Orona was scared and did not leave her house the entire

weekend.

              3.     POLICE INVESTIGATION

       San Bernardino County Sheriff’s Deputy Ericson Dominick received a call that a

person had been shot at the Twentynine Palms Apartment. When he arrived, Leilani was

on her cellular telephone in the parking lot and waved at him to get his attention. There

were several spent shell casings near the door to the Jacksons’ apartment. There was

blood splatter everywhere near the front door. He then saw the victim laying on the floor

about three feet from the front door inside the apartment. He had blood all over his

clothes. He had apparent gunshot wounds on his arm and leg. Overa was standing near

the victim.


                                             9
       Overa told Deputy Dominick that a light skinned Black male wearing a red shirt

had shot the victim. Deputy Dominick then asked the victim if he knew who shot him.

The victim was in pain, grabbing his chest and leg areas. He was having difficulty

breathing. The victim responded, “It was . . . it was . . .” and then he vomited on the

floor. At that point, paramedics arrived. Overa told Deputy Dominick it was T who shot

the victim. Overa never told Deputy Dominick she recognized defendant’s voice.

Deputy Dominick did notice that Overa did not seem very emotional or upset with

regards to the shooting.

       San Bernardino County Sheriff’s Detective Marcel Silva responded to investigate

the shooting. He located several shell casings outside the apartment occupied by the

Jacksons. Blood splatter was found on the rug by the front door to the apartment.

Detective Silva also found several bullet fragments.

       Detective Silva interviewed Jerry at his apartment. Detective Silva asked for

Jerry’s cellular telephone calls but Jerry told him he had erased them from his phone.

Jerry insisted it was his common practice to erase them from his phone. Jerry never

disclosed that he called defendant shortly before the murder.

       San Bernardino County Sheriff’s Detective Edward Bachman subpoenaed the

phone records for defendant, the victim, Young, defendant’s dad, Johnson and Jerry.

Numerous short calls were made between Jerry and the victim between 6:47 and 7:04

p.m. on October 18. Ten minutes later there was a call made to 911 from Jerry’s phone.




                                             10
       Defendant’s phone records showed that around 4:00 p.m., he called Jerry. There

were additional calls at 6:37, 6:46, 6:56, and 6:59 p.m. Jerry called defendant at 11:37

p.m. Defendant called him back a few seconds later. There were several other calls

made by Jerry to defendant that lasted for a few seconds on the following day.

       There were phone calls between defendant and Young. Defendant called Young

at 6:27 p.m. He called him again several times between 7:21 p.m. and 11:30 a.m. the

following morning. There were phone calls between defendant and his father at 5:09,

7:30, 7:36, and 7:42 p.m. Johnson also had contact with defendant.

       San Bernardino County Sheriff’s Detective Stan Wijnhamer interviewed Overa on

October 20 at 12:45 a.m. She was scared and upset. Overa asked to be relocated. She

told Detective Wijnhamer defendant had shot her husband. She referred to him as T. She

told the Detective she recognized defendant’s voice. She asked her husband who shot

him just to make sure. She identified defendant as the person she knew as T from a

photographic lineup.

       San Bernardino County Sheriff’s Detective Jose Avila received a tip that Orona

may have information about the shooting. He interviewed her on October 25. Orona

initially said nothing about driving defendant because she was afraid defendant was

tapping her phone. After Detective Avila confronted her that he had information she had

driven defendant, she admitted she drove him to the college. Orona contacted him on

October 28, and told him she had not been completely honest with him. She was in fear

of her life and her family’s life.




                                            11
         Detective Avila interviewed Orona at her house. She was visibly upset and

crying. She did not want him to leave. She recounted how defendant had threatened her.

She identified Young from a photographic lineup. She knew him as “Doobie.” She

stated that Young drove a large black SUV.

         Detective Avila interviewed Leilani. She repeatedly referred to defendant as T.

She admitted overhearing Overa say T had shot the victim. Detective Avila also spoke

with Johnson. She admitted that she spoke to T, who she identified as defendant, that

night.

         An autopsy was performed on the victim. The victim had suffered 10 gunshot

wounds, some from the same bullet entering and exiting his body. A bullet was

recovered from his lower right back.

         The defense testimony all pertained to the charges involving Orona, which is not

relevant to the issues raised on appeal.

                                       DISCUSSION

         A.    ACCOMPLICE TESTIMONY

         Defendant contends Young was an accomplice as a matter of law and the trial

court was required to instruct the jury with CALCRIM No. 335, that Young’s testimony

should be viewed with distrust and must be corroborated. In the alternative, defendant

argues at the very least the jury should have been instructed with CALCRIM No. 334,

that it could consider whether Young was an accomplice, and if they reached that

conclusion, his testimony must be corroborated.




                                             12
              1.     ADDITIONAL FACTUAL BACKGROUND

       At trial, Young testified he did not recall speaking with the police about the

victim’s murder. He also claimed he could not read so he could not review the transcripts

of the interviews. Even after the recording was played for Young, he could not

remember the conversation with the police. He denied he recognized his voice on the

tapes. A person read the transcripts to Young.

       Young only admitted he had been dating a girl named Michelle on October 18.

She drove a green Nissan. He denied she drove a black SUV and he did not recall telling

police she drove a SUV even after having been read the police interview. He did not

recall telling the police (1) he went to see Johnson the day of the murder; (2) he had a

relationship with Johnson; (3) on the day of the murder Johnson called him and asked

him for marijuana, and he was with T when she called; (4) he did not know a person

named T. He was able to identify defendant in court only because he had seen him

“around.” However, he denied that he knew anything about a shooting that day. He

denied he said he was in Johnson’s apartment on the day of the shooting. He never told

the police defendant was mad at the victim.

       Outside the presence of the jury, the trial court noted Young clearly did not want

to testify and had refused to answer questions. His lack of memory was an evasion.

Under Evidence Code section 770, the trial court would allow in his prior inconsistent

statements for impeachment.




                                              13
       Detective Wijnhamer testified he interviewed Young on January 21, 2014, and

Young had no difficulty remembering the events the night of the shooting. Young

acknowledged he had been dating Michelle and she drove a large, black SUV. On

October 18, 2013, Young was at the Twentynine Palms Apartment visiting Johnson.

Young told Detective Wijnhamer he drove defendant in the SUV to the Twentynine

Palms Apartments to sell marijuana to Johnson. Young referred to defendant as T

throughout the interview.

       When they arrived, they parked the SUV near Johnson’s apartment. Young went

inside to smoke marijuana with Johnson and defendant left the apartment. While

defendant was gone and Young was still inside Johnson’s apartment, Young heard two

gunshots; he got scared. He went back to the SUV and drove off. Later, Young called

defendant to make sure he was okay. Defendant told him he was fine. Young told

Detective Wijnhamer defendant was angry with the victim because they were involved

with the same female. The victim had called the police on defendant and defendant

ended up going to jail.

              2.     ACCOMPLICE INSTRUCTIONS

       Section 1111 defines an accomplice “as one who is liable to prosecution for the

identical offense charged against the defendant. . . .” The section further provides: “A

conviction cannot be had upon the testimony of an accomplice unless it be corroborated

by such other evidence as shall tend to connect the defendant with the commission of the

offense; and the corroboration is not sufficient if it merely shows the commission of the

offense or the circumstances thereof.” “‘“[A]n accomplice is one who aids or promotes


                                            14
the perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose and an

intent to assist in the commission of the target crime. . . .” [Citation.] “In order to be an

accomplice, the witness must be chargeable with the crime as a principal (§ 31) and not

merely as an accessory after the fact (§§ 32, 33).”’” (People v. Bryant (2014) 60 Cal.4th

335, 429.)

       “‘“[W]henever the testimony given upon the trial is sufficient to warrant the

conclusion upon the part of the jury that a witness implicating a defendant was an

accomplice,’” the trial court must instruct the jury, sua sponte, to determine whether the

witness was an accomplice. [Citation.] If the testimony establishes that the witness was

an accomplice as a matter of law, the jury must be so instructed. [Citation.] In either

case, the trial court also must instruct the jury, sua sponte, ‘(1) that the testimony of the

accomplice witness is to be viewed with distrust [citations], and (2) that the defendant

cannot be convicted on the basis of the accomplice’s testimony unless it is

corroborated.’” (People v. Zapien (1993) 4 Cal.4th 929, 982.)

       Here, there was “scant and conflicting evidence” that Young was an accomplice.

(People v. Bryant, supra, 60 Cal.4th at p. 432.) Young denied any memory of the events

of the night at trial. When he was interviewed by Detective Wijnhamer prior to trial, he

admitted he had driven defendant to the Twentynine Palms Apartments that night. He

insisted it was so defendant could sell marijuana to Johnson. Young stated that he had

been in Johnson’s apartment when the shots were fired and immediately left in the SUV

without defendant. He later called defendant to make sure he was okay. Other evidence




                                              15
showed there were several phone calls made to Young by defendant. Finally, Orona

testified she overheard defendant talking to Young about getting rid of the SUV.

       None of this evidence established by a preponderance of the evidence that Young

was subject to the prosecution for the identical offense charged against defendant.

(People v. Hinton (2006) 37 Cal.4th 839, 879 [evidence a person is an accomplice must

be shown by a preponderance of the evidence].) At most, the evidence presented to the

jury established Young was an accessory after the fact. This did not establish Young had

knowledge of defendant’s unlawful purpose and he intended to assist in the commission

of the target crime. Accomplice instructions were not warranted based on the evidence.

       “Nonetheless, ‘the failure to instruct on accomplice testimony pursuant to section

1111 is harmless where there is sufficient corroborating evidence in the record.

[Citations.] The requisite corroboration may be established entirely by circumstantial

evidence. [Citations.] Such evidence “may be slight and entitled to little consideration

when standing alone. [Citations.]”’ [Citation.] ‘Corroborating evidence “must tend to

implicate the defendant and therefore must relate to some act or fact which is an element

of the crime but it is not necessary that the corroborative evidence be sufficient in itself to

establish every element of the offense charged.”’” (People v. Zapien, supra, 4 Cal.4th at

p. 982; see also People v. Hayes (1999) 21 Cal.4th 1211, 1271.)

       Here, there was ample corroborating evidence defendant was at the Twentynine

Palms Apartments that night. Overa saw defendant and recognized his voice. The victim

confirmed he was shot by T. Fielding, who lived near the Jacksons, confirmed she saw a

black SUV at the apartments just prior to the shooting. Defendant forced Orona, who


                                              16
lived close to the shooting, to drive him away from the area. When she asked why he

needed a ride, he told her not to ask any questions. Further, he threatened her that he

would kill her and her children if she told anyone she had driven him that night. Phone

records also confirmed defendant was in contact with Young that night.

       Based on the foregoing, even had the jury been instructed that Young was an

accomplice, there was ample corroborating evidence establishing that defendant shot the

victim. As such, any conceivable error was harmless.

       B.        DYING DECLARATION

       Defendant contends the trial court erred by admitting the victim’s statement that T

was the shooter, as it did not qualify as a dying declaration. He insists the victim

believed he was going to survive at the time he made the statement.

                 1.   ADDITIONAL FACTUAL BACKGROUND

       Prior to trial, the People filed a trial brief in which they sought to admit the

statement made by the victim that “T” shot him. The People argued pursuant to Evidence

Code section 1242, this was a dying declaration. The trial court heard the matter prior to

trial. The People argued the victim was shot six times and fell into Jerry’s apartment and

told him, “Don’t let me die. Don’t let me die.” The victim was holding onto his

abdomen and groaning. He was overheard to say that T was the shooter. When Deputy

Dominick arrived, he asked the victim who had shot him. He said, “It was . . . it was . . .”

and then turned over to his side and vomited. The victim lost consciousness on the way

to the hospital. He woke up one time and only said he was dying. He died the next day

after surgery.


                                              17
       The trial court reviewed the language in Evidence Code section 1242. Based on

the information provided to the trial court, it found it appeared the exception applied as

the victim believed his death was just a matter of time.

              2.      ANALYSIS

       “‘Hearsay evidence’ is evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated.” (Evid. Code, § 1200, subd. (a).) An established exception to the hearsay rule is a

dying declaration. Evidence Code section 1242 provides, “Evidence of a statement made

by a dying person respecting the cause and circumstances of his death is not made

inadmissible by the hearsay rule if the statement was made upon his personal knowledge

and under a sense of immediately impending death.”

       “‘“This sense of impending death may be shown in any satisfactory mode, by the

express language of the declarant, or be inspired from his evident danger, or the opinions

of medical or other attendants stated to him, or from his conduct, or other circumstances

in the case, all of which are resorted to in order to ascertain the state of the declarant’s

mind.”’” (People v. Monterroso (2004) 34 Cal.4th 743, 763.) In Monterroso, the

prosecutor in seeking to admit a statement by the victim who shot him, “relied on the

declarant’s statements, demeanor, and conduct, as well as his evident injuries. The

gunshot pierced [the victim]’s respiratory system, his gastrointestinal system, and his

liver. The chest wound and the liver damage were each ‘of a great magnitude and

dangerous in itself.’” (Id. at p. 763.) Further, an officer testified that at the time the

statements were made, the victim “knew he had been shot, was in great pain and on the


                                              18
ground in a fetal position, was fearful of dying, and never spoke again.” (Ibid.)

Therefore, the court in Monterroso concluded the statements were properly admitted as

dying declarations, even though the victim lingered for several days before dying. (Ibid.)

       This case is similar to People v. Black (1979) 96 Cal.App.3d 846. In Black the

defendant shot the victim two or three times. When a responding officer arrived, the

victim’s first words were that he did not want to die. The victim then told the officer the

name of the person who had shot him and continued to tell the officer not to let him die.

The appellate court found the statement was properly admitted as a dying declaration.

(Id. at p. 851.) It found, “At the time [the victim] made his statements in question, he

was dying. Furthermore, it is apparent that [the victim] had knowledge of his critical

condition which prompted him to plea emotionally to [the officer] not to let him die.

Whether [the victim] thought he was recovering at the time he was in the hospital, as

appellant contends, does not affect the veracity of his statement made while under the

sense of impending death.” (Id. at pp. 851-852.)

       A trial court’s ruling on the admissibility of a statement as a dying declaration is

subject to review under the abuse of discretion standard. (People v. Mayo (2006) 140

Cal.App.4th 535, 553; see also People v. Monterroso, supra, 34 Cal.4th at p. 763.)

       Here, the victim had suffered 10 gunshot wounds. He had wounds on his legs,

arms and abdomen. He was grabbing his stomach. He was bleeding from all the wounds

and his mouth. He begged with Jerry not to let him die. The People established the

severity of the victim’s wounds and that he was aware of the severity by declaring he did




                                             19
not want to die. The trial court did not abuse its discretion by admitting the statement

under the exception for dying declarations.

       Defendant relies on one statement made by the victim to show he did not believe

that he was dying. The victim accused Jerry of setting him up and stated when he came

“out of this” he was going to get him back. Based on the totality of the circumstances,

this one statement did not negate that the victim’s injuries were severe and that he also

said he did not want to die. The statement was properly admitted.

       Moreover, even if the statement was erroneously admitted, such error was

harmless as it is not reasonably probable defendant would have received a more favorable

verdict had the victim’s statement been excluded. (People v. Watson (1956) 46 Cal.2d

818, 836.) As stated in detail ante, Overa saw defendant shoot the victim, defendant

forced Orona to drive him away from the area and threatened her not to tell anyone, and

defendant was in contact with all of the parties involved that night. This evidence clearly

established defendant shot the victim even without the victim’s statement.

       C.     SECTION 654

       Defendant insists the trial court should have stayed his sentence of two years on

count 3, his conviction for making terrorist threats, because it was based on the same

conduct as count 2, the dissuading a witness charge, for which he was given a three-year

sentence. The People concede the sentencing error.

       At the time of sentencing, the trial court imposed a sentence of three years for the

dissuading a witness (Orona) conviction in count 2. In addition, the trial court imposed a




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concurrent sentence of two years on count 3, the making of terrorist threats against

Orona.

         Section 654 provides, “An act or omission that is punishable in different ways by

different provisions of law shall be punished under the provision that provides for the

longest potential term of imprisonment, but in no case shall the act or omission be

punished under more than one provision.” “The purpose of section 654 is to prevent

multiple punishment for a single act or omission, even though that act or omission

violates more than one statute and thus constitutes more than one crime. Although the

distinct crimes may be charged in separate counts and may result in multiple verdicts of

guilt, the trial court may impose sentence for only one offense—the one carrying the

highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)

         It is clear the two convictions arose from the same conduct. During closing

argument, the prosecutor contended that the dissuading a witness and making criminal

threats charges pertained to the same conduct by defendant: grabbing Orona by the back

of her head and threatening her and her family if she called the police. Accordingly, the

concurrent sentence imposed for making a terrorist threat in count 3 must be stayed.

(People v. Spirlin (2000) 81 Cal.App.4th 119, 131 [the proper procedure for disposing of

a term that violates section 654 is to impose and stay sentence on the lesser term].)

                                       DISPOSITION

         Defendant’s sentence for count 3 is modified to reflect that the sentence is stayed,

pursuant to section 654. The trial court is directed to amend the abstract of judgment so

as to reflect the modification and to forward a certified copy of the amended abstract of


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judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      MILLER
                                                                                        J.


We concur:


McKINSTER
                       Acting P. J.


CODRINGTON
                                 J.




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