P. v. Abel-Bey CA3

Filed 5/21/13 P. v. Abel-Bey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071096

Plaintiff and Respondent, (Super. Ct. No. 11F00545)

v.

ARONDREI ABEL-BEY,

Defendant and Appellant.

After his life spiraled downhill from methamphetamine addiction, defendant Arondrei Abel-Bey killed his grandfather in a confrontation that ensued following the announcement by defendant’s wife that she was going to leave defendant. A jury found defendant guilty of first degree murder by personally using two deadly weapons, and the trial court sentenced him to 25 years to life in prison plus an additional one year for the weapon enhancements. Defendant appeals, raising one instructional error and one abstract of judgment error. We order the abstract modified and affirm.

1

DISCUSSION I The Court Did Not Err In Instructing Pursuant To CALCRIM No. 226 Regarding The Credibility Of Witnesses Defendant contends the trial court erred by instructing the jury with the following language from CALCRIM No. 226: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says, or if you think the witness lied about some things, but told the truth about others, you may . . . simply accept that part that you think is true, and ignore the rest.” Defendant argues this instruction should not be given in a case like this one where the defendant testifies. He reasons that because “[a] criminal defendant always in theory has a motive to lie . . . the defendant consistently was the one witness to which the jury was likely to apply this instruction.” He acknowledges that our Supreme Court rejected similar arguments against the predecessor instruction, CALJIC No. 2.21.2, but argues that CALCRIM No. 226 “encourages, more strongly than does CALJIC No. 2.21.2, a jury to reject the entire testimony of the defendant if it finds a material falsehood somewhere in his testimony.”1 Defendant also acknowledges that his contention and arguments were rejected in People v. Warner (2008) 166 Cal.App.4th 653. The Warner court concluded that CALCRIM No. 226 and CALJIC No. 2.21.2 are both “facially neutral instructions that apply to all witnesses who testify at trial and that focus no more on the defendant’s testimony than on that of any other witness.” (Warner, at p. 658.) Moreover, since the