P. v. Givens
Filed 5/20/13 P. v. Givens 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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,
Plaintiff and Respondent,
v.
ISAAC MARINO GIVENS,
Defendant and Appellant.
C070625
(Super. Ct. No. 10F07850)
THE PEOPLE,
Plaintiff and Respondent,
v.
CESAR SANTANA,
Defendant and Appellant.
C070924
(Super.Ct.No.
10F07850)
For their
part in a continuing violent rivalry between subsets of the Norteño gang,
defendants Cesar Santana and Isaac Givens were found guilty by jury of
Code,
§ 246) for the benefit of a criminal
street gang (§ 186.22, subd. (b)(4)).
Both were sentenced to 15 years to life in state prison. On appeal, Santana contends the trial court
abused its discretion in denying him probation because his was an unusual case,
and his sentence of 15 years to life is cruel or unusual. Givens joins the second contention and also
contends the trial court violated the ex post facto prohibition by imposing a
$240 restitution fine when the applicable minimum was $200. Disagreeing, we shall affirm.
FACTS
Most
Hispanic gang violence in Sacramento,
a predominately Norteño city, is between various subsets of Norteños as the
subsets seek to establish the pecking order.
Among the Norteño subsets are the Varrio Diamonds, the 14th
Avenue Norteños, and the Fruitridge Vista. The 14th Avenue
and Fruitridge Vista subsets are aligned.
Santana is a member of the 14th Avenue
Norteños and Givens is a member of the Fruitridge Vista subset.
A rivalry
between the Varrio Diamonds and the 14th Avenue
subsets began in 2005 when a 14th Avenue
gang member shot and killed a Varrio Diamond gang member. The rivalry was dormant for a number of
years, but began again in 2009 with drive-by shootings. It continued on December 3, 2010, when three men, Givens, Perez, and
Garay, entered a convenience store and encountered two Varrio Diamonds. One of the Varrio Diamonds, Andrew Martin,
shot Garay
On December
8, 2010, gang detectives were conducting surveillance of 7432 17th Avenue, the
home of Martin’s grandmother, looking for Martin. The detective closest to the house saw a
silver car slow as it approached 7432 and then pull to the curb. Santana, the passenger, got out and walked to
7432. There, he pulled a handgun from
his waistband, pointed it at the house, and fired five or six times. Santana put the gun back in his waistband,
looked around the ground and picked up items (presumably shell casings) and
walked quickly back to the car and got in.
Givens, in the driver’s seat, drove away.
There were
six adults and a toddler in the house.
No one was injured. There were
bullet holes in the front window and front gutter. The residents found a bullet in the house and
turned it over to the police.
As the
silver car pulled out, the detective alerted the other members of the
surveillance team. Various officers
followed the car on a high-speed pursuit.
The car crashed into a tree as it tried to turn left. Givens was immediately detained, but Santana
fled on foot. He was finally captured in
a garage.
A backpack
found in the car contained two loaded nine-millimeter handguns. One of the guns could have been the gun
involved in the shooting. Particles of
gunshot residue were found on gloves that Santana wore; this finding was
consistent with his firing a gun.
A gang
detective testified to defendants’ gang membership. Given a hypothetical based on the facts of
this case, he opined the shooting was for the benefit of a gang.
DISCUSSION
I
Denial of Probation
Santana
contends the trial court abused its discretion in denying him probation. He recognizes he was ineligible for probation
under section 1203, subdivision (e)(2) unless the court found unusual
circumstances, but argues such circumstances are present here. He stresses his youth, pointing out that he
was 19 at the time of the shooting, and his insignificant criminal record--he
had only a misdemeanor conviction for possession of a counterfeit item--and
adds that no one was injured and there was no documented monetary loss, and
that he had a supportive family and was working towards his GED.
“Except in
unusual cases where the interests of
justice would best be served if the person is granted probation, probation
shall not be granted to . . . [a]ny person who used, or attempted to use, a
deadly weapon upon a human being in connection with the perpetration of the
crime of which he or she has been convicted.â€
(§ 1203, subd. (e)(2).)
California Rules of Court, rule 4.413(c) sets forth the facts which may
indicate an “unusual case†in which probation may be granted. The only fact that arguably applies to
Santana is “The defendant is youthful or aged, and has no significant record of
prior criminal offenses.†(Cal. Rules of
Court, rule 4.413 (c)(2)(C).)
The trial
court’s findings as to whether there are unusual circumstances, as with the
court’s decision to grant or deny probation, is reviewed for an abuse of
discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (
v. Cazares (1987) 190 Cal.App.3d 833, 837.)
“‘An order denying probation will not be reversed in the absence of a
clear abuse of discretion.
[Citation.] In reviewing the
matter on appeal, a trial court is presumed to have acted to achieve legitimate
sentencing objectives in the absence of a clear showing the sentencing decision
was irrational or arbitrary.
[Citations.]’ [Citation.]†(People
v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.)
Here, the
trial court noted Santana’s relative youth and insignificant criminal history
(he was on informal probation for his misdemeanor conviction), but noted that
unlike many cases where the defendant had no positive role model, Santana had a
mother and older brother who cared about him.
This crime was not an isolated incident or his initiation to gang
life. Santana had a lengthy history of
gang involvement; he was the shooter and was armed as an assassin. There was testimony at trial that Santana had
been present a year earlier at a similar drive-by shooting in the same
area. The court found the nature,
seriousness, and circumstances of the crime warranted a prison commitment.
Santana
contends the trial court ignored factors affecting probation that were in his
favor. “‘A trial court may minimize or
even entirely disregard mitigating factors without stating its reasons.’ [Citation.]
Further, unless the record affirmatively reflects otherwise, the trial
court will be deemed to have considered the relevant criteria, such as
mitigating circumstances, enumerated in the sentencing rules. [Citation.]â€
(People v. Zamora (1991) 230
Cal.App.3d 1627, 1637.) The trial court
could reasonably downplay Santana’s stated willingness to comply with probation
considering he was on informal probation when he fired at least five bullets
into an occupied house. In denying
Santana probation, the trial court clearly stated its reasons, properly
focusing on the seriousness of Santana’s offense and finding that he was a
danger to others. (Cal. Rules of Court,
rule 4.414(a)(1), (b)(8).) “We will not
interfere with the trial court’s exercise of discretion ‘when it has considered
all facts bearing on the offense and the defendant to be sentenced.’ [Citation .]â€
(People v. Downey (2000) 82
Cal.App.4th 899, 910.)
Defendant
relies on Du, supra, 5 Cal.App.4th
822, where a woman convicted of voluntary manslaughter with a firearm received
probation, and argues the facts of his conviction are much less egregious. But the facts of Du are readily distinguishable.
Further, exercise of discretion by its very nature suggests that
different courts may reasonably arrive at different decisions, even on the same
facts. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1771;
906, 911, fn. 7.) Here, the trial court
did not abuse its discretion in declining to grant defendant a probationary
sentence.
II
Cruel or Unusual Punishment
Santana
contends his sentence of 15 years to life where he was relatively young and no
one was injured by his actions amounts to cruel or unusual punishment. He contends his counsel was deficient in
failing to object to the unconstitutional sentence. Givens joins in this contention. He argues a sentence of 15 years to life for
aiding and abetting a crime where no one was injured is cruel and unusual. He does not rely on his youth; he was 27
years old at the time of the crime.
A. The Law
The Eighth
Amendment of the
States Constitution prohibits imposition of a sentence that is “grossly
disproportionate†to the severity of the crime.
(Ewing v. California (2003)
538 U.S. 11, 20-21 [155 L.Ed.2d 108, 118] (Ewing);
People v. Carmony (2005) 127
Cal.App.4th 1066, 1076 (Carmony).) Successful proportionality challenges are
“exceedingly rare†in noncapital cases.
(Ewing, supra, 538 U.S. at pp.
20-21 [155 L.Ed.2d 108, 118] [sentence of 25 years to life for felony theft of
golf clubs under California’s three strikes law, with prior felonies of robbery
and burglary, did not violate federal prohibition on cruel and unusual
punishment].)
Whereas the
federal Constitution prohibits cruel “and†unusual punishment, California
affords greater protection to criminal defendants by prohibiting cruel “orâ€
unusual punishment. (
prohibition against cruel or unusual punishment is broader than the United
States Constitution’s prohibition, we analyze defendants’ contention under the
California standard only. In California,
a punishment may be cruel or unusual if “it is so disproportionate to the crime
for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.†(
omitted.) “The main technique of
analysis under California law is to consider the nature both of the offense and
of the offender. [Citation.] The nature of the offense is viewed both in
the abstract and in the totality of circumstances surrounding its actual
commission; the nature of the offender focuses on the particular person before
the court, the inquiry being whether the punishment is grossly disproportionate
to the defendant’s individual culpability, as shown by such factors as age,
prior criminality, personal characteristics, and state of mind.†(People
v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).) In conducting
our analysis, we pay particular attention to the degree of danger that the
offense and the particular offenders present to society. (People
v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) And we accord great deference to the
Legislature, which has been given the role to define crimes and prescribe
punishments. (Dillon, supra, 34 Cal.3d at p. 477.)
“Preliminarily,
we note this is not [Dillon] [
]. This was not the impulsive act of a
frightened teenager against an armed criminal.
This was a coldly premeditated crime where the participants had plenty
of time to reflect on the consequences of their actions.†(People
v. Ortiz (1997) 57 Cal.App.4th 480, 486 [sentence of 26 years to life with
possibility of parole after 15 years for 14 year old not cruel and
unusual].) Here, as in
planned a violent attack upon an unknown number of persons purely for revenge
and to assert the dominance of their gang.
The public-safety parameter strongly favors the conclusion that the
punishment here was not disproportionate to the crime.
Defendants
stress that no one was injured in this case, but that happy fact appears to
have been purely fortuitous. There is no
evidence that Santana deliberately took steps to avoid injuring anyone, or that
he or Givens had any concern for the consequences of their violent
actions. Instead, the evidence shows
Santana fired through the front window of a house while several people,
including a small child, were inside.
Although
their argument is not entirely clear, it appears defendants are arguing that
the life sentence resulting from application of the gang enhancement
constitutes cruel or unusual punishment.
We disagree.
Courts have
rejected the argument that the firearm enhancement of section 12022.53
constitutes cruel or unusual punishment.
(Martinez, supra, 76
Cal.App.4th at pp. 494-496 [25 years to life on attempted murder];
1183, 1212-1215 [25 years to life on murder].)
“Section 12022.53 as a whole represents a careful gradation by the
Legislature of the consequences of gun use in the commission of serious
crimes. The section is limited, in the
first place, to convictions of certain very serious felonies.†(Martinez,
supra, at p. 495.) “The ease with
which a victim of one of the enumerated felonies could be killed or injured if
a firearm is involved clearly supports a legislative distinction treating
firearm offenses more harshly than the same crimes committed by other means, in
order to deter the use of firearms and save lives. [Citations.]â€
(Id. at pp. 497-498.) We find the reasoning of these cases
compelling and applicable to the Legislature’s decision to punish gang-related
shootings into inhabited homes harshly to deter violent crime. We find no constitutional infirmity in
section 186.22, subdivision (b)(4).
Santana
relies on cases holding sentencing a juvenile to life in prison without the
possibility of parole (or its factual equivalent) is cruel or unusual
punishment. (Graham v. Florida (2010) __ U.S. __ [176 L.Ed.2d 825];
47.) These cases are easily
distinguishable from this case because here, neither defendant is a juvenile,
nor is the sentence life without the possibility of parole. After defendants have served 85 percent of
the 15-year determinate portion of the sentence, they will be eligible for
parole. The sentence imposed on
defendants was neither cruel nor unusual.
Because we
have found the 15 years to life sentences for each defendant were not cruel or
unusual, their counsel were not ineffective in failing to challenge the
constitutionality of the sentences.
III
Restitution Fine
The trial
court imposed a $240 restitution fine (§ 1202.4, subd. (b)(1)) and $240 parole
revocation fine (§ 1202.45) on each defendant.
Givens contends these fines violated the prohibition against ex post
facto laws. Santana joins this
contention. In 2010, when this crime was
committed, the minimum amount of these fines was $200, but the minimum amount
was raised to $240 effective in 2012.
(Stats. 2011, ch. 358, § 1.) Givens
contends the trial court “intended to impose the minimum fine
permissible.†He contends the fines are
unauthorized and may be corrected at any time, despite the lack of an
objection. We disagree.
The ex post
facto clauses of both the federal and state constitutions prohibit any statute
which makes more burdensome the punishment for a crime after its
commission. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, 295.) “A restitution fine qualifies as punishment
for purposes of the prohibition against ex post facto laws. [Citation.]â€
(People v. Saelee (1995) 35
Cal.App.4th 27, 30.)
The flaw in
Givens’s argument is that in 2010 nothing prohibited a restitution fine of
$240. Indeed, the probation reports for
both defendants recommended a restitution fine of $10,000. “Although the cases are varied, a sentence is
generally ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case.
Appellate courts are willing to intervene in the first instance because
such error is ‘clear and correctable’ independent of any factual issues
presented by the record at sentencing.
[Citation.]†(
354 (Scott).) The $240 fines could be lawfully imposed in
2010 and were not unauthorized.
Because the
fines were not unauthorized, Givens forfeited any claim that the trial court
mistakenly imposed more than the minimum fine by not raising it at the
sentencing hearing. “Although the court
is required to impose sentence in a lawful manner, counsel is charged with
understanding, advocating, and clarifying permissible sentencing choices at the
hearing. Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s
attention. As in other waiver cases, we
hope to reduce the number of errors committed in the first instance and
preserve the judicial resources otherwise used to correct them.†(Scott,
supra, 9 Cal.4th at p. 353.) Here, had Givens raised the 2010 minimum fine
amount below, the trial court could have corrected any error in the amount of
the fine. Because he did not, he may not
challenge the fine on appeal.
The
judgment is affirmed.
DUARTE , J.
We concur:
RAYE , P. J.
BUTZ , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
