People v. Bice CA2/6

Filed 3/26/14 P. v. Bice CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.