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People v. Mouton1/31/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Randy Mouton, Eric Greene and Curtis Carroll appeal from convictions of murder, attempted murder, robbery and attempted robbery. They contend that the trial court erred in denying their Wheeler/Batson motions regarding the prosecutor's exercise of peremptory challenges, admitting the preliminary hearing testimony of a witness who did not testify at trial, denying appellants' motions to remove a juror, and denying their motion for a mistrial based on testimony given by the prosecution's fingerprint expert; that the prosecutor engaged in several instances of misconduct in argument, and that the trial court improperly failed to instruct the jury that a conviction under the felony murder rule requires proof that the killing was committed by the defendant or his accomplice "in furtherance of their common design" and improperly instructed the jury pursuant to CALJIC No. 17.41.1. Appellant Mouton additionally argues that the trial court erred in denying his motion for a new trial and in rejecting his argument that his sentence of 25 years to life was unconstitutional. Appellants Greene and Carroll argue the trial court erred in imposing a 15 percent limitation on their presentence conduct credits. We affirm.
STATEMENT OF THE CASE
Appellants were charged by an amended information filed on January 17, 1997, with the murder of Gilberto Medina Gil (Pen. Code, § 187); attempted murder of Enrique Rodriguez (§§ 187, 664); robbery of Enrique Rodriguez (§ 211) and attempted robbery of Gilberto Medina Gil (§§ 211, 664). It was alleged that Carroll personally used a rifle (§§ 1203.06, 12022.5) and that Greene and Mouton were armed with a rifle (§ 12022, subd. (d)) in the commission of the first three charged offenses; that Carroll personally inflicted great bodily injury (§ 1203.075) in the commission of the murder; and that Greene previously had been convicted of felony possession of narcotics. The prosecution subsequently dismissed the fourth count (attempted robbery) and the great bodily injury enhancement.
Jury trial was originally set for November 16, 1998, and, after continuances, began on March 29, 1999. On May 12, 1999, the jury found appellants guilty of first degree murder, attempted murder and first degree robbery. The jury found true the allegations that Carroll personally used a rifle in the commission of the offenses and found not true the allegations that Greene and Mouton were armed with a rifle during the commission of the offenses.
Greene filed a motion for a new trial on June 29, 1999, in which Carroll joined on July 9; Mouton filed a motion for a new trial on July 12. These motions were denied on November 12, 1999.
On March 17, 2000, Mouton and Greene were each sentenced to a prison term of 25 years to life on count one, with concurrent upper terms of nine years on count two and six years on count three. Mouton was given credit for 1363 days of actual presentence custody plus 205 days of conduct credit; Greene was given credit for 1458 actual days and 219 days of conduct credit. Carroll was sentenced to a prison term of 54 years to life: 25 years to life on count one, plus a consecutive upper term of nine years on count two, a concurrent upper term of six years on count three and consecutive terms of 10 years for the firearm use enhancements on counts one and two. Carroll received credit for 13
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