People v. Mayberry CA4/1

INTRODUCTION

A jury convicted Damone Kiki Mayberry, among other charges, of first degree murder with a robbery-murder special circumstance and found true he personally and intentionally discharged a firearm in committing the murder.

(Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17), 12022.53, subd. (d).) In a bifurcated proceeding, the trial court found Mayberry suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and a prior prison term (former § 667.5, subd. (b)). Mayberry was sentenced to a term of life without the possibility of parole on the murder, consecutive to 25 years to life for the firearm enhancement. On appeal, Mayberry challenges the trial court’s modification of the CALCRIM No. 376 instruction, which tells the jury it can consider a defendant’s possession of recently stolen property as evidence the defendant committed a crime, to refer to the nontheft offenses of murder and assault with a firearm. We agree the court erred in modifying the instruction but conclude the error was not prejudicial. Mayberry also brings an Eighth Amendment challenge to the felony-murder special circumstances statute (§ 190.2, subd. (a)(17)). This…