P. v. Smith CA2/7

Filed 7/15/13 P. v. Smith CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B242247

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA382776) v.

KEVIN BERNARD SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.

Matthew Alger, 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, Victoria B. Wilson and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.

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On the night of January 26, 1994, Kevin Bernard Smith entered a home in Studio City, where he shot and killed Rupert Thompson and seriously wounded Dorothy Thompson in their bedroom. Smith then ransacked the house and fled with some jewelry. Smith appeals from a judgment entered following his conviction by a jury on one count of first degree murder and one count of attempted willful, deliberate and premeditated murder. The jury also found true two special circumstances allegations related to the murder count—that Smith had committed the murder while engaged in the commission of a robbery and engaged in the commission of a burglary (former Pen. Code, § 190.2, subds. (a)(17)(i) & (vii)).1 In addition the jury found true firearm-use enhancement allegations (§ 12022, subd. (a)(1)) as to both counts and a great-bodily-injury enhancement allegation (§ 12022.7, subd. (a)) as to the attempted murder count. Smith contends the imposition of the two enhancements on the attempted murder count was improper. We affirm. PROCEDURAL BACKGROUND The trial court imposed consecutive sentences of life without the possibility of parole on count on count 1, plus five years for the firearm-use enhancement; plus seven years to life on count 2, plus five years for the firearm-use enhancement, plus three years for the great bodily injury enhancement.2 DISCUSSION When Smith committed the attempted murder of Dorothy Thompson in 1994, former subdivision (e) of section 1170 provided, ―When two or more enhancements under Sections . . . 12022.5 . . . 12022.7 . . . may be imposed for any single offense, only the greatest enhancement shall apply. However, in cases of lewd or lascivious acts upon or with a child under the age of 14 years accomplished by means of force or fear, as