P. v. Galvez

Filed 8/22/07 P. v. Galvez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert M. Martinez, Judge. Affirmed.

Law Offices of Chris R. Redburn, Chris R. Redburn and Joy A. Maulitz for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

Shortly after noon on March 20, 2005, sixteen-year-old gang member David Alejandro Galvez (defendant) took a .22 caliber semi-automatic rifle, drove with two accomplices into the territory of a rival gang on what the trial court characterized as a hunting trip, and murdered two young men. A jury convicted defendant of two counts of first-degree murder (Pen. Code, 187, subd. (a))[1]with a multiple-murder special circumstance ( 190.2, subd. (a)(3)). The jury also found true the allegations that defendant personally used a firearm causing great bodily injury or death ( 12022.53, subd. (d)), and that the murders were committed for the benefit of a street gang ( 186.22, subd. (b)(1)(A)). The trial court sentenced defendant to two terms of life without the possibility of parole (LWOP), plus two terms of 25 years-to-life for the firearm enhancement, and ordered the sentences to run consecutively. The trial court struck the gang enhancement. We affirm the judgment.

BACKGROUND

A. Independent Evidence

Defendant was a member of the Pomona Sur Olive street gang and was known by the gang moniker Dopey. Pomona Sur Olives main rivals were the 12th Street Sharkies, whose territory includes Washington Park, located at Grand Avenue between Towne and San Antonio Avenues in Pomona, California. One of defendants gang associates, Jorge Hernandez (Jorge),[2]also known as Sleepy, previously had been wounded in a drive-by shooting. Another member of Pomona Sur Olive had been killed in the same incident. Members of Pomona Sur Olive believed that 12th Street Sharkies were responsible for the shootings.

Leticia Gomez (Leticia) testified that, on Sunday, March 20, 2005, at approximately 11:00 a.m., her brother Daniel Gomez (Daniel) borrowed his fathers black Honda Civic.[3] When Daniel left home, defendant was in the front passenger seat and Jorge was in the back seat. Leticia knew defendant as a friend of her brother.

At approximately 12:05 p.m., Carlos Lopez (Carlos) was in Washington Park with his friend Naftali Flores (Naftali). Carlos saw a black car similar to a Honda pull into the parking lot. Carlos then saw defendant, whom Carlos knew from school, holding a rifle. Defendant shot Naftali. Defendant got back into the black car, which backed straight out of the parking lot onto Grand Avenue, then drove away. Naftali died at the scene from a gunshot wound to his right side. A .22-caliber bullet was recovered from Naftalis body. The Pomona Police Department also recovered a single .22-caliber shell casing from the scene. A wall near where Naftali was shot was marked with 12th Street Sharkies gang graffiti and graffiti deprecating Pomona Sur Olive.

At approximately 12:10 p.m., Zara Rodriguez (Zara) was driving on San Antonio Avenue near Lexington Avenue, approximately one mile south of Washington Park. She passed a young man on a bicycle riding in the opposite direction. The young man was later identified as Anthony Lopez (Anthony). A black car that looked like a Honda Civic approached Anthony. When Zara stopped at an intersection, she looked in her rear view mirror. She saw a man with a rifle get out of the black cars front passenger seat. She heard the man ask Anthony, Whats up? Anthony answered, I dont know. Zara heard the man with the rifle fire one or more shots, and saw Anthony fall down. Anthony died at the scene from a gunshot wound to the head. A .22-caliber bullet was recovered from Anthonys body. The police recovered three .22-caliber shell casings from the scene.

Leticia saw Daniel return home in his fathers Honda between 1:00 p.m. and 2:00 p.m. Defendant and Jorge were still with him. Shortly thereafter, a police car drove by Daniels house. Leticia saw defendant and Jorge run away when they saw the police car.

The Pomona police department showed Carlos six-pack photographic lineups on March 20, 25 and 30, 2005. Defendants photograph was included in the March 25 lineup, but Carlos did not identify defendant or anyone else as the perpetrator. On April 1, police showed Carlos a fourth photographic lineup; Carlos identified defendant as the man who had killed Naftali. Carlos testified that he had not identified defendant earlier because he was afraid. Carlos also identified defendant as the shooter in open court. When shown a photograph of the black Honda Daniel was driving on the day of the shootings, Carlos testified that the car looked similar to the car in which the killer rode.

On March 22, police showed Zara a six-pack photographic lineup. She identified two people, one of whom was defendant, as possibly being the man who killed Anthony. A police report indicated that Zara said that she was leaning more toward the person who was not defendant. Zara testified in court that defendant looked a little bit like the killer, and that she was reluctant to make an identification because she was afraid.

Forensic examination determined that the same semi-automatic rifle had been used to fire the bullets that killed Naftali and Anthony. The police searched defendants residence, but they found neither a .22-caliber weapon nor any .22-caliber ammunition. The murder weapon was never recovered. No fingerprints were recovered from the shell casings, and no other physical evidence was recovered to connect defendant to either shooting.

B. Accomplice Evidence

Daniel testified that he drove defendant and Jorge to Washington Park, where defendant and Jorge told him to stop. Daniel knew that Washington Park was the territory of the 12th Street Sharkies. Defendant got out of the car, took out a short rifle, and walked over to a guy in the park. Jorge told defendant to shoot him. Defendant shot the victim once. Defendant got back in the car. Daniel drove away. As they fled, defendant said he had seen a person he knew from school in the vicinity of the shooting. Defendant was referring to Carlos.

Daniel drove away from the park for a minute or so. They passed a boy on a bicycle. Defendant and Jorge again told Daniel to stop the car. Defendant got out of the car and began shooting. Daniel later dropped off defendant and Jorge back in Pomona Sur Olive territory.

Approximately nine days after the shootings, Daniel was interrogated by the police while in custody on an unrelated charge. At first, he told the detective that he had been out of town the day of the shootings; that he did not know defendant; and that he knew nothing about either the shootings or a black Honda. After further interrogation, however, Daniel told the police what had happened. Daniel admitted that, approximately two weeks before the trial, Daniel was offered a 21-year state prison term in return for his truthful testimony.

Tapes of two police officers interrogating Daniel were played for the jury. The transcripts were admitted into evidence without objection. Daniel told police that he was giving defendant and Jorge a ride when defendant told him to go to Washington Park. Daniel saw two men in the park near a fence. The two men threw up a gang sign, although Daniel did not know from what gang. Defendant walked up to the men; they began to run. Defendant fired four shots.

They fled the park onto Grand Avenue and immediately turned south on San Antonio Avenue. As they approached Lexington Avenue, they passed a guy on a bicycle. Defendant and Jorge, who were scared, told Daniel to drop them off and leave. Daniel stopped the car. Defendant got out. The guy on the bike threw up gang signs. Defendant fired the rifle. Daniel saw the guy go down. Defendant got back in the car. They fled back to Daniels house.[4]

C. The Sentence

The trial court sentenced defendant to LWOP on each of the two counts of first-degree murder. In addition, the trial court imposed an additional and consecutive term of 25-years-to-life on each count for the firearm enhancement. Characterizing the crimes as a hunting trip for people to shoot and kill, motivated only by gang loyalties, ties, and distorted amusement, the trial court found that the crimes occurred in separate locations and at different times, and therefore ordered the sentences on the two murder counts to run consecutively. The trial court struck the gang enhancements. The trial court also ordered defendant to pay $10,000 to the Victims Compensation Board, restitution to an individual of $524.90, a restitution fine of $200, and a $20 court security fine. Defendant was given 576 days of presentence custody credit, consisting of 576 actual days.

DISCUSSION

A. The Evidence Is Sufficient to Sustain Defendants Conviction

on Count 2

On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.] (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)

Defendant contends that, because Daniel was an accomplice in Anthonys murder (count 2), the prosecution was required by section 1111 to introduce evidence to corroborate Daniels identification of defendant as the person who shot Anthony.[5] Defendant points out that Zara, the only testifying eyewitness to Anthonys murder other than Daniel, was unable to identify defendant. Further, defendant argues, Daniels sister Leticia who testified that defendant was in the front passenger seat of the Honda when the perpetrators left Daniels house was biased and had made prior inconsistent statements to the police about seeing defendant get into the front passenger seat of the Honda. Defendant thus concludes that the testimony of Zara and Leticia did not constitute substantial evidence sufficient to corroborate Daniels testimony.

The People do not dispute that Daniel was an accomplice in Anthonys murder. Section 1111 provides, in relevant part, A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . . As the California Supreme Court recently confirmed, the corroborating evidence required by section 1111 may be circumstantial or slight and entitled to little consideration when standing alone . . . . (People v. Abilez (2007) 41 Cal. 4th 472, 505 (Abilez).) The corroborating evidence need not by itself establish every element of the crime . . . . (Ibid.) Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant. [Citation.] (People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto).) Corroborating evidence is sufficient if it substantiates enough of the accomplices testimony to establish his credibility [citation omitted]. [Citation.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) Accordingly, [c]ontrary to defendants suggestion, the corroborating evidence need not independently establish the identity of the victims assailant. (Abilez, supra, 41 Cal.4th at p. 506.) Instead, [t]he corroborating evidence . . . must, without aid from the accomplices testimony, tend to connect the defendant with the crime. [Citation.] (Id. at p. 505, italics added.) Unless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal. [Citation.] (Szeto, supra, 29 Cal.3d at p. 27.)[6]

For example, in Szeto, supra, 29 Cal.3d 20, the defendant Szeto was convicted of being an accessory to murder by helping the killers, members of a Chinese street gang called the Joe Boys, dispose of the murder weapons. The primary evidence against Szeto was the testimony of an accomplice, Chester, who testified that, after committing the murders at a San Francisco restaurant, the Joe Boys had spent the night at the home of the Rodriguezes. Szeto arrived at the Rodriguezes home the next morning, bringing the Joe Boys won ton soup. Szeto was instructed by some of the Joe Boys to dispose of the murder weapons by throwing them in San Francisco Bay. Chester accompanied Szeto, who threw the weapons into the bay at a spot near a restaurant where Szeto said he had been employed. (Id. at pp. 27-28.)

The California Supreme Court held that Chesters testimony was sufficiently corroborated by testimony that showed merely that the defendant had the motive and opportunity to aid and abet the Joe Boys. As to Szetos motive, a gang expert testified that Szeto was a member of the Joe Boys, and that the Joe Boys had been involved in on-going, violent conflict with the two gangs who were the intended targets of the murders. Two months before the murders, four members of the Joe Boys had been shot by members of the target gangs, one fatally. Szeto had attended the dead members funeral. (Szeto, supra, 29 Cal.3d at p. 28.)

As to Szetos opportunity, independent witnesses testified that the Joe Boys were in the Rodriguez house the night of the murders and were still there the following morning. The witnesses further testified that the Joe Boys had brought the murder weapons to the house a month prior to the killings; the weapons were in a closet at the house the night of the murders; and the weapons were no longer in the closet the evening of the next day. One independent witness testified that Szeto had brought won ton soup to the house that morning; another could not positively identify [Szeto] as the person who brought the soup but testified [Szeto] was similar in appearance to that person. (Szeto, supra, 29 Cal.3d at p. 28; see also People v. Rodrigues, supra, 8 Cal.4th at pp. 1128-1129 [corroboration provided by, inter alia, testimony that perpetrator look[ed] similar to defendant].) Further, Szetos former employer confirmed that Szeto had worked at the restaurant, at which, according to the accomplice, Chester, Szeto said he had been employed. (Szeto, supra, at p. 29; see also People v. McDermott (2002) 28 Cal.4th 946, 986 [sufficient corroboration by evidence tending to show defendants motive, presence at scene, and friendship with accomplice]; People v. Gurule (2002) 28 Cal.4th 557, 628 [sufficient corroboration by independent evidence establishing, inter alia, defendants presence at scene of murder and that murder occurred as described by accomplice]; People v. Vu (2006) 143 Cal.App.4th 1009, 1023-1024 [sufficient corroboration by evidence tending to show motive as gang member, opportunity, and defendants false statements to police].)

The independent evidence in this case satisfies the corroboration requirement of section 1111. First, the evidence establishes defendants motive to commit the murders. The prosecutions gang expert testified that defendant was a member of Pomona Sur Olive, and that 12th Street Sharkies were rivals of Pomona Sur Olive. Prior to the murders, Jorge had been wounded in a drive-by shooting that had killed another member of Pomona Sur Olive. Pomona Sur Olive blamed 12th Street Sharkies for the shootings. The murders in this case occurred in 12th Street Sharkies territory; the murder at Washington Park occurred near graffiti that glorified 12th Street Sharkies and that deprecated Pomona Sur Olive.

Second, the independent evidence establishes that defendant had the opportunity to murder Anthony, and tends to support the conclusion that defendant was the shooter. Daniels sister Leticia testified that defendant was in the front passenger seat of the black Honda when Daniel left his fathers house shortly before the murders.[7] Carlos identified defendant as the shooter in Washington Park, and also placed defendant in the front passenger seat of the Honda. Further, Carloss description of the Washington Park murders was consistent with Daniels in all material respects. Zara testified that the shooter who killed Anthony got out of the front passenger of the black Honda, and although she was unable to identify defendant with certainty, she picked defendant out of a photo lineup as one of two likely suspects, and testified that the shooter looked similar to defendant. Zaras account of Anthonys murder was also consistent in all material respects with Daniels testimony. Finally, the injuries to Anthony were consistent with Daniels account of Anthonys murder. Accordingly, the independent evidence sufficiently corroborated Daniels credibility to satisfy the requirements of section 1111.

B. Defendants Sentence Was Properly Imposed

1. Defendant Failed to Establish That Trial Court Did Not Exercise Its Discretion under Section 190.5, subdivision (b)

As noted above, defendant was 16 years old at the time of the murders. Section 109.5, subdivision (b) provides, in relevant part, that [t]he penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in section 190.2 . . . has been found to be true . . . , who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life. Section 190.2, subdivision (a)(3) specifies as one such special circumstance when [t]he defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

Section 190.5, subdivision (b) expresses a presumptive sentence of LWOP for youthful offenders convicted of first-degree special-circumstance murder. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1145 (Guinn).) [S]ection 190.5 means . . . that 16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. (Id. at p. 1141.) Even so, section 190.5, subdivision (b) requires a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life . . . . (Id. at p. 1149.) In exercising that discretion, the trial court should consider the aggravating and mitigating factors set forth, respectively, in California Rules of Court, rules 4.421 and 4.423,[8]as well as the factors set forth in section 190.3. (Id. at pp. 1142-1143.)

Defendant argues that the trial court was unaware of, and therefore failed to exercise its discretion under, section 190.5, subdivision (b).[9] Defendant accurately points out that there is no mention of section 190.5, subdivision (b) in connection with the sentencing proceedings in this case the statute is not referenced or relied upon in the second amended information, the probation officers report, defendants sentencing memorandum, or the colloquy at the sentencing hearing. Further, the trial court made no reference to defendants age during the sentencing hearing, and did not state on the record its reasons for imposing a LWOP term. The record does not reflect any explicit weighing of aggravating and mitigating factors.

The fact that the record is silent with respect to the trial courts exercise of discretion, however, is not sufficient to establish error. Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) While courts sentencing discretion is constitutionally mandated and therefore jealously guarded, a trial courts failure to exercise such discretion must be demonstrated in the same manner as any other error. We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error it will not be presumed. [Citation.] [Citations.] (People v. Tang (1997) 54 Cal.App.4th 669, 677.) These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. (People v. Mosley (1997) 53 Cal.App.4th 489, 496; see also People v. Fuhrman (1997) 16 Cal.4th 930, 945; rule 4.409 [Relevant criteria enumerated in these rules . . . will be deemed to have been considered unless the record affirmatively reflects otherwise].) Accordingly, we cannot conclude that the trial court misunderstood its sentencing discretion in the absence of some affirmative showing. (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.)

In this case, the amended information alleged that defendant was a minor who was at least 16 years old when the offenses were committed. Defendants probation report stated defendants date of birth and reiterated the allegations that defendant was a minor at the time the offenses were committed. The trial court indicated prior to pronouncing sentence that it had read and considered the probation report. The trial court was therefore aware of defendants age when he committed the murders. The probation officers report does not state or imply that a sentence of LWOP is mandatory; it recommends only that defendant be denied probation and sentenced to state prison. Further, the trial court said nothing during the sentencing to indicate that it believed that a sentence of LWOP was mandatory.

Defendant contends that statements by his trial counsel establish that defendant was sentenced based on the erroneous assumption by both counsel and the trial court that a sentence of LWOP was mandatory. Neither statement, however, establishes that the trial court was unaware of its discretion. First, defendant points out that the sentencing memorandum submitted by defendants trial attorney indicated that defendants sentence for each of the murders should be LWOP. The sentencing memorandum, however, plainly states that it sets forth the maximum sentence; it does not purport to set forth the only permissible sentence. Similarly, at the beginning of the sentencing hearing, defense counsel informed the trial court that defendants sentencing memorandum erroneously had included ten-year consecutive terms for gang enhancements that defense counsel subsequently learned should not be imposed, pursuant to section 186.22(b)(5), because these are life without parole sentences.[10] Even if we assume that this statement implies that defense counsel erroneously believed that LWOP was the only permissible sentence,[11]the trial court did not respond to or agree with defense counsels statement, or otherwise affirmatively indicate its belief that LWOP was the only permissible sentence.

Defendant relies on People v. Ybarra (2007) 149 Cal.App.4th 1175, review granted August 15, 2007, S152984 (Ybarra). After this appeal was submitted, however, the California Supreme Court granted review in Ybarra, so that case is no longer good authority.[12] In any event, Ybarra is factually inapposite. In that case, the Court of Appeal vacated a youthful offenders sentence under section 195, subdivision (b) and remanded for resentencing, holding, inter alia, that the record implicitly show[ed] a belief by the court and counsel alike that an LWOP term was mandatory if the special circumstance [under section 190.2, subdivision (a)] were not stricken . . . . (Id. at p. 1201.) The probation officers report in Ybarra, which was prepared after trial,noted that the jurys true findings on the special circumstance and gang allegations establish the sentence to be life without the possibility of parole. (Id. at p. 1200.) The trial court explicitly relied on the probation officers report in pronouncing sentence, stating that it would follow the recommendation in the report, and that it imposed a sentence of LWOP for the reasons set forth in the report. (Ibid.) In addition, defense counsel asked the trial court to strike the special circumstance and impose a lesser sentence. Although the trial court had no legal authority to do so, the trial court nevertheless heard argument on the motion to strike, and denied the motion. (Ibid.) The Court of Appeal concluded that the trial courts lack of awareness . . . of the electorates express elimination [in Proposition 115] of the power to strike the special circumstance and the silence of the sentencing hearing record about [the defendants] age is suggestive of a lack of awareness by the court . . . of the discretion that section 190.5, subdivision (b) confers to impose . . . a 25-year-to-life term instead of an LWOP term. (Ibid.)

Unlike Ybarra, 149 Cal.App.4th 1175, the probation officers report in this case was prepared before trial, and thus before the jury had found true the special circumstance allegation. Further, the report did not recommend any particular sentence it recommended only that probation be denied and defendant sentenced to state prison. Accordingly, the report did not indicate that the jurys true finding on the special circumstance allegation establish[ed] the sentence to be LWOP, as had the report in Ybarra. As a result, the trial court in this case did not rely the erroneous recommendation or reasoning of a probation officer. Also, there was no colloquy at the sentencing hearing in this case analogous to the purported motion to strike the special circumstance in Ybarra, nor did the trial court make any other statements implying that it was unaware of its discretion under section 195, subdivision (b). For these reasons, we conclude that defendant has failed to establish that the trial court did not exercise its sentencing discretion under section 190.5, subdivision (b).

2. Defendant Has Failed to Establish the Prejudice Element of His Ineffective Assistance of Counsel Claim

Defendant contends that his trial counsel rendered ineffective assistance, in violation of his Sixth Amendment right to counsel, by failing to apprise the trial court of its discretion under section 190.5, subdivision (b) to sentence defendant to a lesser sentence of 25 years to life, and by failing to advocate in favor of the lesser sentence. Defendants counsel acquiesced in the LWOP sentence. Defendant contends that there was no downside to pressing for 25-to-life.

On direct appeal, the burden is on defendant to demonstrate that he is entitled to relief because of his counsels ineffective assistance. (In re Lucas (2004) 33 Cal. 4th, 682, 721; see Stricklandv. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To do so, defendant    must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citations.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.    [Citations.] This second part of the Strickland test is not solely one of outcome determination. Instead, the question is whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. [Citation.] [Citation.] (In re Hardy (2007) 41 Cal.4th 977, ___ [2007 Cal. LEXIS 7881, *88-*89].) [A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland, supra, 466 U.S. at p. 697; In re Scott (2003) 29 Cal. 4th 783, 825; In re Ross (1995) 10 Cal. 4th 184, 204; see In re Lucas, supra, 33 Cal.4th at pp. 731-736; see also People v. Williams (1988) 44 Cal.3d 883, 954 [defendant must show that his sentence resulted from a breakdown in the adversary process that renders the result unreliable].)

In capital cases, the failure of counsel to present any evidence in mitigation has been held to constitute ineffective assistance. (See In re Lucas, supra, 33 Cal.4th at pp. 722-728 and cases cited therein.) The California Supreme Court noted that [a]lthough [i]n some cases, counsel may reasonably decide not to put on mitigating evidence, . . . to make that decision counsel must understand what mitigating evidence is available and what aggravating evidence, if any, might be admissible in rebuttal. [Citation.] (Ibid.) It does seem that here counsel had nothing to lose by making some argument in mitigation. Nevertheless, failure to present mitigating argument or evidence does not constitute ineffective assistance of counsel per se. (People v. Snow (2003) 30 Cal.4th 43, 112.) We do not know on the record before us why defense counsel failed to do so. We do not know if counsel had any real argument available, or whether he tried to find some mitigating evidence. Thus, this issue in this case cannot be determined on direct appeal. It can be determined on a writ of habeas corpus. (Id. at p. 118.)

On the record before us, defendant also has failed to establish the requisite prejudice. As noted above, section 190.5 means . . . that 16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. (Guinn, supra, 28 Cal.App.4th at p. 1141, italics in original.) Although defense counsel did not advocate either in defendants sentencing memorandum or at the sentencing hearing for the imposition of the lesser 25-years-to-life term under section 109.5, subdivision (b), defense counsel did argue that the trial court should consider the factors set forth in rule 4.425 to impose the two LWOP sentences concurrently rather than consecutively. In rejecting defendants request, the trial court stated, This case tragically involves what amounts to a hunting trip. The defendant and his co-defendants went out seeking other individuals to shoot and to kill. . . . [T]he only motivation appears to be gang loyalties, ties, and distorted amusement.

The evidence supports the trial courts assessment. Defendant rode into rival gang territory armed with a semi-automatic rifle, for no apparent purpose other than to murder whomever he happened across who might, in defendants opinion, be affiliated with 12th Street Sharkies. Defendant coldly and deliberately murdered his victims, and in the course of doing so fired multiple shots, with a rifle, first in a public park and then on a public street, at midday on a Sunday, with no apparent regard for the danger he posed to innocent bystanders. The nature and circumstances of the crime thus militate in favor of, not against, the more severe penalty. (Section 190.3, subd. (a).) Defendants crimes demonstrated a high degree of callousness (rule 4.421(a)(1)), and defendant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1); section 190.3, subd. (b)). Further, defendant was the shooter who killed both victims, and Daniel told the police that it was defendants idea to go to Washington Park. Even though Jorge told defendant to shoot Naftali, it appears that defendant occupied a position of leadership in committing the murders (rule 4.421(a)(4)). Neither victim instigated or participated in any violence toward defendant or his companions ( 190.3(e)).

Aside from defendants age (discussed post), the only mitigating fact arguably supported by the record is that defendants criminal history was relatively minor, consisting of juvenile sustained petitions for misdemeanor vandalism and possession of marijuana. (See rule 4.23(b)(1).) Given the substantial factors in aggravation, this one mitigating factor likely was insufficient to overcome the presumption in favor of LWOP expressed in section 190.5, subdivision (b). [S]ection 190.5 was amended specifically to make youthful offenders, who committed what would have been a death-eligible crime for an adult, subject to special circumstances and LWOP. The fact that a court might grant leniency in some cases, in recognition that some youthful . . . murderers might warrant more lenient treatment, does not detract from the generally mandatory imposition of LWOP as the punishment for a youthful special circumstance murderer. (Guinn, supra, 28 Cal.App.4th at p. 1142.)

We reject defendants argument that his age should be considered per se a mitigating factor for purposes section 190.5, subdivision (b). Subdivision (b) applies only to 16- and 17-year-old offenders. In enacting that provision, the People of the State of California . . . made a legislative choice that some 16- and 17-year-olds . . . are presumptively to be punished with LWOP. (Guinn, supra, 28 Cal.App.4th at 1147.) Defendant was less than four months shy of his seventeenth birthday when he murdered the victims, and there is no evidence that he was developmentally delayed. There is also no evidence to support defendants contentions that he acted under duress (section 190.3, subd. (g); rule 4.423(a)(4)) or that defendant was induced to murder by others (rule 4.423(a)(5)). Although Jorge may have told defendant to shoot Naftali, there is not indication defendant had any hesitancy in pulling the trigger. There is no evidence that anyone urged defendant to shoot Anthony. As noted above, defendant took a leadership role in committing the murders, along with Jorge, by directing Daniel to go to Washington Park, where defendant shot Naftali, and to stop the Honda on San Antonio Avenue, where defendant shot Anthony. On the record before us, therefore, we reject defendants claim of ineffective assistance of counsel.

3. Defendants Sentence Does Not Constitute Cruel and Unusual Punishment

Defendant contends, for the first time on appeal, that his sentence constitutes cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, 17.) Because defendant did not raise this claim below, he forfeited it. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Nevertheless, in order to forestall a subsequent claim of ineffectiveness of counsel [citation], we will consider the issue. (Ibid.; People v. Norman (2003) 109 Cal. App. 4th 221, 230; see People v. Demirdjian (2006) 144 Cal.App.4th 10, 14 (Demirdjian).)

Defendant argues that the U.S. Supreme Courts decision in Roper v. Simmons (2005) 543 U.S. 551 (Roper), in which the Court held that the Eighth Amendment[13]prohibited imposition of the death penalty for crimes committed when the offender was under 18, drastically changed the jurisprudence on juvenile offenders, and should be extended to prohibit imposition of LWOP on youthful offenders. In Roper, the Court overruled its prior decision in Stanford v. Kentucky (1989) 492 U.S. 361, which had held that the Eighth Amendment did not proscribe the execution of juvenile offenders over 15 but under 18. (Roper, supra, 543 U.S. at p. 562.) The Court in Roper based its decision on two primary factors. First, the Court held that, in the years since the decision in Stanford, evidence of a national consensus against the death penalty for juveniles (id. at p. 565) had developed sufficient for the Court to conclude that today our society views juveniles . . . as categorically less culpable than the average criminal. [Citation.] (Id. at pp. 567.) Thirty states had prohibited the death penalty for juveniles, 12 of which prohibited the death penalty altogether. Of those 30 states, five had implemented the prohibition subsequent to the decision in Stanford. Furthermore, even in those states that permitted juvenile executions, the practice [was] infrequent. (Id. at pp. 564-565.)

Second, the Court held that [t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders, for whom capital punishment must be reserved. (Id. at p. 569.) Those differences, according to scientific and sociological studies, are that (1) juveniles tend to lack maturity and have an underdeveloped sense of responsibility; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and (3) the character of juveniles is not as well formed as that of adults. (Id. at pp. 569-570.) Because of these differences, the Court concluded, the retributive and deterrent justifications for capital punishment apply to [juveniles] with lesser force than to adults. (Id. at p. 571.) Accordingly, the Court stated, [w]hen a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. (Id. at pp. 573-574.)

The reasoning of the Court in Roper, supra, 543 U.S. 551 does not extend to the present case. First, Roper was a death penalty case. Although LWOP is a severe penalty, the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. (Gregg v. Georgia (1976) 428 U.S. 153, 188 (lead opn. of Stewart, J.).) Justice Kennedys majority opinion in Roper implicitly recognizes the distinction between the death penalty and LWOP when applied to youthful offenders. The judgment of the Missouri Supreme Court affirmed in Roper had set aside Simmons death sentence and resentenced him to life imprisonment without eligibility for probation, parole, or release except by act of the Governor. (Roper, supra, 543 U.S. at p. 560.) There is no suggestion in the opinion that the sentence of LWOP might itself be unconstitutional. Further, the Court indicated that the death penalty is unconstitutionally disproportionate when applied to juveniles, at least in part, because whatever deterrent effect it had could be achieved by imposing LWOP instead. The Court said, To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. (Id. at p. 572.)

Second, unlike Roper, supra, 543 U.S. at pp. 564-567, defendant has failed to present evidence of a national consensus against the imposition of LWOP on youthful offenders for crimes such as special-circumstance murder. To the extent evidence is available, it militates against finding any such consensus. According to one authority, as of September 2006, 42 of the 50 states permitted the imposition of LWOP on juvenile offenders. (Note, Disposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roper (2006) 46 B.C. L. Rev. 1083, 1089-1090.)In 27 of those states, the sentence was mandatory for certain enumerated crimes. (Id. at p. 1090.) Further, other states do not limit imposition of LWOP for youthful offenders to crimes as severe as special-circumstance murder: some states impose LWOP on youthful offenders for crimes such as robbery, aggravated assault and rape. (Ibid.) Nor is the imposition of LWOP on youthful offenders in those states that permit it unusual. According to one study published in October 2005, over 2200 juveniles were serving LWOP sentences in the United States. (Human Rights Watch/Amnesty International, The Rest of their Lives: Life Without Parole for Child Offenders in the United States (2005) pp. 123-124 < http://hrw.org/reports/2005/us1005/> [as of August 6, 2007].) The Eighth Amendment considerations involved here are thus different than those in Roper.

Defendant has cited no authority extending the reasoning of Roper, supra, 543 U.S. 551, to LWOP. Other states have rejected challenges to LWOP sentences based on Roper. (State v. Rideout (Vt. 2007) __ A.2d __ [2007 Vt. LEXIS 164]; State v. Eggers (Ariz. App. 2007) 160 P.3d 1230, 1247-1249; State v. Craig (La. App. 2006) 944 So.2d 660, 662.) Further, Division Four of this court has rejected the argument that the reasoning in Roper should be extended to proscribe two consecutive terms of 25 years to life imposed on a defendant who was 15 when he committed special-circumstance murder. (Demirdjian, supra, 144 Cal.App.4th at pp. 13-16; see also Guinn, supra, 28 Cal.App.4th at pp. 1145-1147 [pre-Roper case holding that sentence of LWOP under section 190.5, subdivision (b) is not cruel and unusual punishment as applied to 17-year-old offender]; Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 583-584 [pre-Roper case holding imposition of mandatory LWOP sentence on 15-year-old offender under Washington law does not violate Eighth Amendment].) We therefore conclude that Roper does not support a constitutional prohibition against imposing LWOP on youthful offenders.

Defendant also argues that his sentence violates the ban on cruel and unusual punishment because it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478.) In reviewing whether a sentence is unconstitutionally disproportionate, we examine the nature of the offense and of the defendant, with particular regard to the degree of danger both present to society. (Id. at p. 479.) In assessing the nature of the offense, we consider the circumstances of the particular crime, such as the defendants motive, the way the crime was committed, the extent of defendants involvement and the consequences of defendants acts. (Ibid.) In assessing the nature of the defendant, we consider defendants age, prior criminality, personal characteristics, and state of mind. (Ibid.) Only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, do the courts denounce it as unusual. [Citation.] (People v. Lewis (1993) 21 Cal. App. 4th 243, 251.)

As discussed above, defendant committed two particularly callous murders, taking the lives of two young men for no reasons other than gang loyalties and, in the trial courts words, defendants own distorted amusement. Defendant committed two special-circumstance murders, the most serious crime recognized by California law. Had he been only sixteen months older, defendants crimes would have been punishable by death. There is no indication in the record that defendant ever admitted his involvement or expressed remorse for his crimes. Defendants sentence is not unconstitutionally disproportionate to his crime. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1004-1005 (conc. op. of Kennedy, J.) [LWOP not disproportionate to crime of possession of 1.5 pounds of cocaine]; Harris v. Wright, supra, 93 F.3d at p. 585 [Like any other prison sentence, [LWOP] raises no inference of disproportionality when imposed on a [15-year-old] murderer]; Guinn, supra, 28 Cal.App. 4th at pp. 1146-1148 [LWOP not disproportionate punishment for 17-year-old with a limited prior record who committed first-degree murder during robbery]; People v. Thompson (1994) 24 Cal.App.4th 299, 304-307 [LWOP not disproportionate to crime of recklessly killing a child by throwing a Molotov cocktail in the victims house, where defendants youth was a mitigating factor].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] All statutory references are to the Penal Code.

[2] Some of the perpetrators, victims and witnesses share the same surname. For ease of reference, we refer to the participants in this case by their first names.

[3] Some witnesses describe the car as belonging to Daniels uncle. Apparently, Daniels uncle held title, but the car was used by both him and Daniels father.

[4] Defendant did not testify or put on any witnesses. The sole piece of affirmative evidence offered by defendant and admitted into evidence was a photograph of defendant, offered during defendants cross examination of Carlos.

[5] Defendant does not challenge his conviction on Count 1 for murdering Naftali.

[6] The trial court instructed the jury that Daniels testimony and out-of-court statements should be viewed with caution and that the jury could rely on them only if: [] 1. [Daniels] out-of-court statement or testimony is supported by other evidence that you [the jury] believe; [] 2. The supporting evidence is independent of the accomplices out-of-court statement or testimony; and [] 3. The supporting evidence tends to connect the defendant to the commission of the crimes. Defendant does not challenge the propriety of the jury instruction.

[7] Defendants contention that Leticias testimony lacked credibility is unavailing whatever impact Leticias purported bias or prior inconsistent statements to police might have had on her credibility was for the jury to determine. It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)

[8] All rule references are to the California Rules of Court.

[9] Defendant did not object to his sentence in the trial court, nor did he argue for a reduced sentence of 25-years-to-life. The People do not argue that defendant has forfeited the issue, however, and there is authority that error premised on the trial courts complete[] fail[ure] to exercise its discretion is not forfeited by a defendants failure to raise the issue in the trial court. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) Because we affirm on other grounds, we need not determine whether defendant forfeited the asserted error.

[10] Section 186.22(b)(5) provides, Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served. A sentence of 25-years-to-life is also a life sentence within the meaning of section 186.22(b)(5). (People v. Montes (2003) 31 Cal.4th 350, 358, fn. 10.) Defense counsels statement would thus be true regardless of which sentence the trial court imposed under section 195, subdivision (b), and therefore does not necessarily indicate that defense counsel erroneously believed that LWOP was the only permissible sentence.

[11] This is not the only reasonable inference. Defense counsels statement might also reasonably be understood as a tacit acknowledgement that, based on the evidence in the case, LWOP was the inevitable sentence.

[12] In its order granting review in Ybarra, supra, 149 Cal.App.4th 1175, review granted August 15, 2007, S152984, the Supreme Court ordered that [f]urther action in this matter is deferred pending consideration and disposition of a related issue in People v. Gonzalez, S149898, People v. Sloan, S132605, and People v. Izaguirre, S132980 (See Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. (People v. Ybarra (Aug. 15, 2007, S152984) __ Cal.4th __ [2007 Cal. LEXIS 8727].) The Supreme Courts decisions in People v. Sloan and People v. Izaguirre were subsequently issued on August 16, 2007, and have no bearing on this case. (See People v. Sloan (August 16, 2007, S132605) __ Cal.4th __ [2007 Cal. LEXIS 8704] [enhancement allegations may not be considered for purposes of the multiple conviction rule]; People v. Izaguirre (August 16, 2007, S132980) __ Cal.4th __ [2007 Cal. LEXIS 8705] [enhancements were not elements of offense for determining lesser included offenses].) The issue in People v. Gonzalez, S149898, also is not relevant here. That case concerns whether, when separate firearm enhancements under section 12022.5 and subdivisions (b), (c), and/or (d) of section 12022.53 are found true and the longest enhancement is imposed, the lesser enhancements should be stricken, stayed or simply not imposed at all. It thus appears that the Supreme Courts resolution of Ybarra will have no impact on our resolution of defendants appeal.

[13] Defendant makes no specific argument under the California Constitution.