P. v. >Richardson>

 

 

 

 

 

 

Filed 6/4/13  P. v. Richardson CA1/5

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 

 
>

>THE PEOPLE, >            Plaintiff and Respondent, >v. >EUGENE RICHARDSON, >            Defendant and Appellant.

A134783         (Alameda County       Super. Ct. No. C164916B)

 

            Eugene
Richardson appeals from his conviction of first
degree felony murder.  (Pen. Code,
§§ 187, subd. (a), 189.)href="#_ftn1"
name="_ftnref1" title="">[1]  The killing resulted from an href="http://www.mcmillanlaw.com/">armed robbery in which Richardson, then
aged 16, participated and during which he personally used a firearm.  Upon conviction, Richardson was sentenced to
35 years to life in prison.

            In
this court, he raises constitutional challenges to both his conviction and his
sentence.  Richardson claims his
conviction offends the due process clause of the Fourteenth Amendment, because
as a minor, he lacked the cognitive ability to form the necessary intent.  Similarly, he argues that his sentence
violates the Eighth Amendment’s ban on cruel
and unusual punishments, because it is based on the presumption he harbored
the same intent as an adult offender.

            We
find neither of Richardson’s arguments persuasive.  Accordingly, we will affirm the judgment.

Factual and
Procedural Background

            Because
of the limited nature of Richardson’s claims on appeal, a detailed discussion
of the evidence presented at trial is unnecessary.  We therefore set forth only those facts
necessary to a proper understanding of the issues on appeal.

            On
the evening of October 15, 2009, Wayl Al Junaidi’s mother gave him $20 and
sent him to buy milk at a Walgreen’s near their residence.  When he left home, he had a brown trifold
wallet and a diamond ring.  Later that
evening, a police officer responding to a report discovered the wounded Al
Junaidi in a parking lot on Foothill Boulevard in Oakland.  Al Junaidi later died at Highland Hospital,
and a forensic pathologist testified that the cause of death was a gunshot
wound.  No money, wallet, or jewelry were
recovered from the location at which the victim was found.

            At
Richardson’s trial, Rodrigo Campos testified that on the night of
October 15, 2009, he was cleaning up in the parking lot when he saw a red
van pull up.  Three men got out of the
van and ran past him.  Campos saw the
victim walking along Foothill Boulevard and then heard a loud pop.  He saw the victim fall, and then the three
men ran back to the red van.  One man
carried a silver pistol about six to eight inches in length.  The red van then drove away.  Campos approached the victim, who was bloody
but still alive.  The entire incident
lasted only three to five minutes.

            Campos
later repeated his story to a police investigator.  He told the investigator he saw three men
come out of a red van parked on 34th Avenue and walk past him as he was
cleaning up the parking lot.  Campos
identified Richardson and another suspect from photo lineups.  Campos had identified the same two suspects
at the preliminary examination.  He said
Richardson stood over the victim and was carrying the gun when the men returned
to the van. 

            Margarita
Arreola’s bedroom window looked out over the parking lot.  She was home on October 15, 2009 before
11:00 p.m., and when she looked out at her car in the parking lot, she saw the
tops of three men’s heads.  She heard a
loud bang and looked out the window again. 
Arreola saw one man running away toward the red van, one man standing by
a dumpster, and a third man struggling and arguing with the victim.  The man struggling with the victim was trying
to “put his hands into the victim’s sides” and “was putting his hand in one
area and another as if he were looking for something[.]”  The man was bent over the victim, and it
looked as though he was trying to take something from him.  The man with the victim wore dark pants and a
dark jacket and had shoulder-length braids. 
After about a minute the man with the victim and the man near the
dumpster ran to the red van where the third man had the engine running.  Arreola saw the victim take a step and then
fall to the ground.

            Arreola
later identified Richardson as the man struggling with the victim.  At trial she remembered his face although his
hairstyle was different from the braids he had worn on the night of the
murder.  Her identification was based on
Richardson’s face, which she had seen clearly when he passed by her
window. 

            Star
Rollins testified she knew Richardson for about two months because he was
dating her sister.  She could not
identify Richardson in court, but she had identified him earlier from a police
photograph.  Rollins said Richardson had
showed her a large man’s ring with multiple diamonds on it and had asked her
opinion about its value.  He told Rollins
he had gotten the ring in a robbery when he killed “an Arabian boy.”

            On
November 9, 2010, the Alameda County District Attorney filed an
information accusing Richardson of murder in violation of section 187,
subdivision (a), a serious felony under section 1192.7,
subdivision (c), and a violent felony under section 667.5,
subdivision (c).  The information
further alleged that Richardson:  (1)
personally and intentionally discharged a firearm and caused great bodily
injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d));
(2) personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)); and (3) personally used a firearm (§ 12022.53,
subd. (b).)  A codefendant, Davone
Young, was also charged in the information, but he later accepted the People’s
plea offer and only Richardson proceeded to trial.href="#_ftn2" name="_ftnref2" title="">>[2]


            At
trial, the court instructed the jury on the law of felony murder using CALJIC
No. 8.21, stating, “The unlawful killing of a human being, whether
intentional, unintentional, or accidental, which occurs during the commission
or attempted commission of the crime of robbery, is murder of the first degree
when the perpetrator had the specific intent to commit that crime.  [¶] The specific intent to commit
robbery and the commission or attempted commission of that crime must be proved
beyond a reasonable doubt.  [¶]  In
law, a killing occurs during the commission or attempted commission of a
felony, so long as the fatal blow is struck during its course, even if death
does not then result.” 

            The
court did not initially instruct the jury on the law of aiding and abetting
because neither party requested those instructions.  In fact, the prosecutor withdrew his request
for instructions on the theory of aiding and abetting, which had been “added
when both defendants were in the case.” 
The prosecutor told the court that “the evidence suggests that this is
clearly more of a felony murder.”  In his
closing statement, the prosecutor argued to the jury, “This . . . is
a felony murder.”  He did not argue that
Richardson had aided and abetted the robbery of Al Junaidi, nor did he claim
that the victim’s death was a natural and probable consequence of that crime.

            During
deliberations, the jury made a request of the court, stating, “Need instruction
from judge on felony murder, specifically if an individual is part of a robbery
— but not necessarily the shooter — can they be convicted of felony murder?”  After discussing the request with counsel and
obtaining their agreement, the court read to the jury CALJIC Nos. 3.00
(“Principals—Defined”), 3.01 (“Aiding and Abetting—Defined”), 3.02
(“Principals—Liability for Natural and Probable Consequences”), and 3.03
(“Termination of Liability of Aider and Abettor”).

            On
January 12, 2012, the jury found Richardson guilty of first degree murder
and found true the allegation that he had personally used a firearm.  It found untrue the allegations that he had
“personally and intentionally discharged a firearm and caused great bodily
injury or death to WAYL AL JUNAIDI” and that he had “personally and
intentionally discharged a firearm.”

            Richardson,
who was 16 years old at the time of the offense, was sentenced on
February 17, 2012, to state prison for a term of 35 years to life.  The term consisted of 25 years to life for
first degree murder and an additional consecutive 10-year sentence for the
firearm use enhancement.  Richardson
filed a notice of appeal on February 21, 2012.

Discussion

            Richardson’s
appeal challenges both his conviction and his sentence.  He first contends his murder conviction
violates the due process clause of the Fourteenth Amendment because it depends
on the application of the natural and probable consequences doctrine.  In Richardson’s view, this doctrine cannot
properly be applied to a 16-year-old defendant, because it infers that a
juvenile’s intent meets the objective standard of a normal adult, even though a
minor’s neurological capacity cannot meet that of an adult brain.

            On
related grounds, Richardson argues that his sentence violates the Eighth
Amendment’s prohibition on cruel and unusual punishment because it is based on
the erroneous presumption that he harbored the same intent as an adult
offender.  Under this argument heading,
Richardson makes a number of claims, all of which are based on the premise that
as a juvenile, he was necessarily less culpable than an adult offender.  He claims his sentence is invalid because it
failed to account in any way for his age.

            We
will first address the challenge to Richardson’s murder conviction and then
turn to the arguments regarding his sentence.

I.          Because
Richardson Was Convicted of First Degree Felony Murder, Lack of Intent to Kill
Was Irrelevant.

            Richardson
first contends his conviction violates the due process clause of the Fourteenth
Amendment because it depended upon the application of the natural and probable
consequences doctrine.  In Richardson’s
view, the natural and probable consequences doctrine improperly infers that the
intent of a 16-year-old defendant can meet the same objective standard of that
of a normal adult, when in fact a minor’s neurological capacity is less.  Relying principally on the United States
Supreme Court’s decision in Miller v.
Alabama (2012) 132 S.Ct. 2455 (Miller),
he argues that the natural and probable consequences doctrine cannot
constitutionally be applied to juveniles “as it does not comport with modern
understanding of brain development.”  As
we explain, because Richardson concedes he was convicted on a felony murder
theory, the natural and probable consequences doctrine is not relevant to our
analysis.

            As
Richardson notes in his opening brief,
in the court below, “[t]he prosecution relied upon the felony murder doctrine
in this case which did not require that [it] prove any mental state [other]
than the commission of the underlying felony.” 
Richardson also agrees that “[t]he jury’s verdict rested upon this felony murder rule but not before they asked
questions about it.”  (Italics
added.)  Despite his recognition that the
jury’s verdict was based upon the felony murder rule, Richardson nevertheless argues
that he was improperly convicted as an aider and abettor under the natural and
probable consequences doctrine.href="#_ftn3"
name="_ftnref3" title="">[3]  He claims that “the application of the
natural and probable consequences doctrine to infer the intent of a juvenile
offender violates the due process clause of the Fourteenth Amendment.”  He contends that as a minor, he was too young
to have been able to foresee that “a robbery is likely to become a killing” and
thus was unable to understand the possible consequences of his actions.  Because he was incapable of understanding
those consequences in the way an adult would, he asserts that one cannot infer
his intent to kill from his mere participation in a robbery.

A.        >Aiding and Abetting and Felony Murder Are
Distinct Theories of Liability.

            Richardson’s
argument is fundamentally flawed because he fails “to distinguish between
felony murder and aiding and abetting theories of murder, which comprise two
separate doctrines. . . . 
[¶] [¶] Aiding and abetting is a distinct theory of homicide.  Unlike the felony-murder theory, the question
of guilt as an aider and abettor is one of legal causation.  ‘Thus, the ultimate factual question is
whether the perpetrator’s criminal act, upon which the aider and abettor’s
derivative criminal liability is based, was ‘ â€œreasonably
foreseeable” â€™ or the probable and natural consequence of a criminal act
encouraged or facilitated by the aider and abettor.’  [Citation.]” 
(People v. Escobar (1996) 48
Cal.App.4th 999, 1018-1019 (Escobar),
overruled on another point in People v.
Mendoza (2000) 23 Cal.4th 896, 923-924.)

            Liability
for first degree felony murder, on the other hand, requires no such
foreseeability.  “ ‘All murder
. . . which is committed in the perpetration of, or attempt to
perpetrate [certain enumerated felonies including robbery and burglary]
. . . is murder of the first degree.’ ”  (Pen. Code, § 189.)  The mental state required is simply the
specific intent to commit the underlying felony [citation], since only those
felonies that are inherently dangerous to life or pose a significant prospect
of violence are enumerated in the statute. 
[Citations.]  ‘Once a person has
embarked upon a course of conduct for one of the enumerated felonious purposes,
he comes directly within a clear legislative warning—if a death results from
his commission of that felony it will be first degree murder, regardless of the
circumstances.’  [Citation.]”  [¶]  The purpose of the felony-murder
rule is to deter those who commit the enumerated felonies from killing by
holding them strictly responsible for any killing committed by a cofelon,
whether intentional, negligent, or accidental, during the perpetration or
attempted perpetration of the felony. 
[Citation.]  ‘The Legislature has
said in effect that this deterrent purpose outweighs the normal legislative
policy of examining the individual state of mind of each person causing an
unlawful killing to determine whether the killing was with or without malice,
deliberate or accidental, and calibrating our treatment of the person
accordingly.  Once a person perpetrates
or attempts to perpetrate one of the enumerated felonies, then in the judgment
of the Legislature, he is no longer entitled to such fine judicial calibration,
but will be deemed guilty of first degree murder for any homicide committed in
the course thereof.’  [Citation.]”  (People
v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).)

B.        Conviction
of Felony Murder Required No Proof of Richardson’s Intent to Kill the Victim.

            In
People v. Dillon (1983) 34 Cal.3d 441
(Dillon), a case involving a juvenile
defendant, our state Supreme Court explained that the two kinds of first degree
murder in California “differ in a fundamental respect:  in the case of deliberate and premeditated
murder with malice aforethought, the defendant’s state of mind with respect to
the homicide is all-important and must be proved beyond a reasonable doubt; >in the case of first degree felony murder it
is entirely irrelevant and need not be proved at all.”  (Id.
at pp. 476-477, italics added, fn. omitted.)  A consequence of this distinction is “that
first degree felony murder encompasses a far wider range of individual
culpability than deliberate and premeditated murder.  It includes not only the latter, but also a
variety of unintended homicides resulting from reckless behavior, or ordinary
negligence, or pure accident; it
embraces both calculated conduct and acts committed in panic or rage, or under
the dominion of mental illness, drugs, or alcohol; and it condemns alike
consequences that are highly probable, conceivably possible, or >wholly unforeseeable.”  (Id.
at p. 477, italics added.)

            Thus,
Dillon forecloses Richardson’s
intent-based argument.  Under >Dillon, Richardson’s intent was
irrelevant in determining whether he had committed the crime of first degree
felony murder.href="#_ftn4" name="_ftnref4"
title="">[4]  (Dillon,
supra, 34 Cal.3d at pp. 476-477.) 
“Indeed, the felony-murder rule is intended to eliminate the need to
plumb the parties’ peculiar intent with respect to a killing committed during
the perpetration of the felony.”  (>Cavitt, supra, 33 Cal.4th at
pp. 197-198.)  For this reason, “it
is no defense to felony murder that the nonkiller did not intend to kill,
forbade his associates to kill, or was himself unarmed.”  (Id.
at p. 198, fn. 2.)

            Similarly,
Richardson’s claimed inability to foresee the natural and probable consequences
of his actions also makes no difference, because first degree felony murder
encompasses crimes that are “wholly unforeseeable.”  (Dillon,
supra, 34 Cal.3d at p. 477.) 
Where, as in this case, the killing occurred during the course of an
independent felony (robbery), Richardson’s participation in the commission of
that crime made him liable for the murder committed during the course of the
robbery, even if the killing was not
a natural, reasonable, or probable consequence of that crime.  (See People
v. Anderson (1991) 233 Cal.App.3d 1646, 1658 (Anderson) [appellants, who aided and abetted robbery, could be held
liable for felony murder; instruction on natural and probable consequences
properly refused].)  “Thus, >Anderson makes clear that accomplices
are liable for felony murder even if the killing was not a natural and probable
consequence.  This rule is in accord with
the general principle that felons are liable for felony murder without any
strict causal relation and even if accidental or ‘wholly unforeseeable.’ ”  (Escobar,
supra, 48 Cal.App.4th at p. 1019.) 
The cited cases compel us to reject Richardson’s argument.

C.        Richardson
Was Not Merely an Aider and Abettor, so the Natural and Probable Consequences
Doctrine Does Not Apply.

            Richardson’s
contentions also cannot be reconciled with his admitted role in commission of
the offense.  He does not dispute that he
was a participant in the robbery that
led to Al Junaidi’s death, and the jury specifically found that Richardson had
personally used a firearm.  Thus, as the Attorney
General points out, Richardson was not merely an aider and abettor of the >robbery, even though the jury apparently
was not convinced he fired the fatal shot. 
Since Richardson was an actual perpetrator of the underlying felony and
not an aider and abettor, the natural and probable consequences doctrine does
not apply.  (See People v. Beeman (1984) 35 Cal.3d 547, 554-555 [term

“ ‘aider and abettor’ ” refers to
“principals other than the perpetrator”],
italics added; People v. Prettyman
(1996) 14 Cal.4th 248, 254, 259-261 [explaining that aider and abettor is
liable as accomplice to actual perpetrator and is thus responsible under
natural and probable consequences doctrine].) 
By committing robbery, a felony the Legislature has deemed inherently
dangerous to human life, Richardson became strictly liable for any killing
committed by a cofelon, even if the killing was entirely accidental.  (Cavitt,
supra, 33 Cal.4th at p. 197; Dillon,
supra, 34 Cal.3d at p. 477.)

            Finally,
even if the natural and probable consequences doctrine were somehow relevant
here, it still would not assist Richardson.href="#_ftn5" name="_ftnref5" title="">>[5]  It is difficult to understand how the
victim’s death “could have been an unnatural or improbable consequence” of
Richardson’s acts.  (Anderson, supra, 233 Cal.App.3d at p. 1662 [assuming nonkiller
did no more than tell gunmen about the location of drug dealer victims and
instruct gunmen in how to attack and rob them, victims’ death was natural and
probable consequence of nonkiller’s actions].) 
Even at age 16, “[a]ppellant had to be aware use of a gun to effect the
robbery presented a grave risk of death.” 
(People v. Hodgson (2003) 111
Cal.App.4th 566, 580 [referring to minor who was 16 years old when crime was
committed].)  Even if we were to indulge
the counterfactual assumption that Richardson did no more than aid and abet the
robbery, he could still be held liable for Al Junaidi’s murder under the
natural and probable consequences doctrine. 
(People v. Em (2009) 171
Cal.App.4th 964, 969-971, 976 [defendant who was 15 years and 9 months old at
time of offense liable under natural and probable consequences doctrine for
felony murder occurring during commission of armed robbery].)

II.         >Richardson’s Sentence Does Not Violate the
Eighth Amendment.

            Richardson
next contends his sentence of 35 years to life violates the Eighth Amendment
because it is based on the presumption he harbored the same intent as an adult
offender.  He argues that his sentence is
unconstitutional because he was 16 years old when he committed the offense, but
he was tried and punished as an adult without any finding he had a specific
intent to kill.href="#_ftn6" name="_ftnref6"
title="">[6]  Although his argument is not a model of
clarity, his essential claim is that his sentence is unconstitutional because
of his youth, his allegedly lessened culpability for the offense, the fact that
the jury was not convinced he was the shooter, and because the sentence is
disproportionate to his role in the crime.href="#_ftn7" name="_ftnref7" title="">>[7]


A.        >Forfeiture

            The
Attorney General argues Richardson has forfeited any claim that his sentence
represents a cruel and unusual punishment by failing to raise this objection in
the court below.  (See, e.g., >People v. Burgener (2003) 29 Cal.4th
833, 886 [cruel and unusual punishment claim forfeited by failure to object in
trial court].)  Richardson responds by
asserting that the forfeiture doctrine does not apply here because the “legal
foundations” for his argument did not exist at the time he was sentenced.  As he relies on case law that post-dates his
sentencing, we will consider his claim on the merits.

B.        Because
Richardson Was Not Sentenced to Life Without Parole or its Functional
Equivalent, His Sentence Is Not Cruel and Unusual.

            Richardson
relies on a number of United States Supreme Court cases for the proposition
that the imposition of punishment on offenders who were juveniles at the time
their crimes were committed requires what he calls “special analysis.”href="#_ftn8" name="_ftnref8" title="">[8]  All of these cases are distinguishable from
the one before us, however, because they involved juveniles whose sentences
were either:  (1) death (>Roper, supra, 543 U.S. at
pp. 578-579), (2) life without possibility of parole (LWOP) (>Miller, supra, 132 S.Ct. at
p. 2460; Graham, 130 S.Ct. at
p. 2020), or (3) a term of years so long as to be the functional
equivalent of LWOP (Caballero, supra,
55 Cal.4th at p. 268.)  As the
Fourth District recently explained, the cases dealing with the permissible
length of a juvenile offender’s sentence “follow a remarkably consistent
pattern.  There is a bright line between
LWOPs and long sentences with
eligibility for parole if there is
some meaningful life expectancy left when the offender becomes eligible for
parole.  We are aware of—and have been
cited to—no case which has used the Roper–>Graham–Miller–Caballero line of
jurisprudence to strike down as cruel and unusual any sentence against anyone
under the age of 18 where the perpetrator still has substantial life expectancy
left at the time of eligibility for parole.” 
(People v. Perez (2013) 214
Cal.App.4th 49, 57, fn. omitted (Perez).) 

            In
Perez, the court rejected an href="http://www.fearnotlaw.com/">Eighth Amendment challenge by a
16-year-old defendant who had been sentenced to a term of 30 years to life in
prison.  (Perez, supra, 214
Cal.App.4th at pp. 51, 57-58.)  The
court acknowledged that “[h]ow much
life expectancy must remain at the time of eligibility for parole of course
remains a matter for future judicial development,” but because the defendant in
that case would be eligible for parole when he reached age 47, it held “there is
plenty of time left for Perez to demonstrate, as the Graham court put it, ‘some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’  [Citation.]” 
(Id. at pp. 57-58.)  Because the defendant’s sentence could not be
considered a “ ‘functional’ ” or “ ‘de facto’ ” LWOP, neither >Miller, Graham, nor Caballero applied, and Roper
did not apply because it was a death penalty case.  (Id.
at p. 58.)

            This
case is similar to Perez.  Richardson, who was 16 at the time of his offense,
was sentenced to a total of 35 years to life and was given 911 days of credit
for time served.  He will become eligible
for parole long before the end of his life expectancy.  Like the juvenile defendant in >Perez, Richardson will have ample time to
obtain release based on demonstrated maturity and rehabilitation.  (Perez,
supra, 214 Cal.App.4th at pp. 57-58.) 
Thus, for the reasons stated in Perez,
we conclude that the Roper–>Graham–Miller–Caballero line of
cases does not assist Richardson.href="#_ftn9"
name="_ftnref9" title="">[9] 

            Richardson
also argues that his sentence violates the Eighth Amendment simply because it
failed to account in any way for the fact that he was a juvenile at the time of
the offense.  This argument is again
based on the Roper–>Graham–Miller–Caballero line of
cases and their recognition of the diminished culpability that results from
minors’ immaturity.  And here again, we
find Perez, supra, 214 Cal.App.4th 49
instructive.  The defendant in that case
contended that “California’s one strike law is unconstitutional as applied to
minors because it deprives trial courts of the discretion to take into account
what the Miller and >Roper majorities described as the ‘what
“any parent knows” ’ factor.”href="#_ftn10"
name="_ftnref10" title="">[10]  (Id.
at p. 58.)  The Perez court rejected the argument because the Roper–Graham–>Miller line of cases concerned juvenile
“offenders [who] had been exposed to the ‘harshest’ available sentence.”  (Id.
at p. 59.)  Unlike >Roper, Graham, and Miller, Perez was not an
LWOP case and the state’s most severe penalties were not at stake.  (Ibid.)  The Perez
court refused to fashion “a judicially imposed rule of mandatory discretion,
namely that no matter how heinous the crime— or how mild the penalty otherwise imposed on adults—the federal and
state cruel and unusual punishment clauses require states to hold out some
possibility of discretionary reduction in that
penalty to take into account an offender’s youth.”  (Ibid.)  It went on to note that “at the moment at
least, no high court has articulated a rule that all minors who commit adult crimes and who would otherwise be
sentenced as adults must have the
opportunity for some discretionary reduction in their sentence by the trial
court to account for their youth. 
Perez’s sentence, albeit long, still leaves plenty of time for him to be
eligible for parole.  It passes
constitutional muster.”  (>Ibid., fn. omitted.)

            Richardson
likewise offers no case authority holding that all minors must have the
opportunity for a discretionary reduction in their sentences based on their
youth.  Current law contains no such
requirement, and it seems to us that creation of such a requirement is a matter
best left to the Legislature.  (>Perez, supra, 214 Cal.App.4th at
p. 59; see Caballero, supra, 55
Cal.4th at p. 269, fn. 5 [urging Legislature to establish parole
eligibility mechanism for defendants serving de facto LWOP sentences for
nonhomicide crimes committed as juveniles].) 
Like the defendant in Perez,
Richardson’s sentence, while long, leaves him ample time to be eligible for
parole.  We therefore disagree with
Richardson that his sentence offends the Eighth Amendment.  (See Perez,
supra, 214 Cal.App.4th at p. 59.)

C.        >Richardson’s Sentence Is Not
Disproportionate to His Culpability.

            Although
he does not make the argument under a separate heading, Richardson’s opening
brief states at various points that his sentence is disproportionate to his
culpability.  As the argument is not
presented under a separate heading, we may deem it forfeited.  (People
v. Roscoe (2008) 169 Cal.App.4th 829, 840.) 
Despite this defect, we will address the contention briefly.

            The
basic test of a cruel or unusual punishment under the California Constitution
is whether it is so disproportionate to the crime as to shock the conscience
and offend fundamental notions of human
dignity.  (Dillon, supra, 34 Cal.3d at p. 478; In re Lynch (1972) 8 Cal.3d 410, 424.)  The focus of the analysis is on the nature of
the offense and the nature of the offender. 
(Dillon, supra, at p.
479.)  The court must consider both the
nature of the offense in the abstract and the facts of the crime in the
particular case, including factors such as its motive, the way it was
committed, the extent of the defendant’s involvement, and the consequences.  (Ibid.)  With respect to the nature of the offender,
the question is whether the punishment is “grossly disproportionate to the
defendant’s individual culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.”  (Ibid.)  The record must be viewed in the light most
favorable to the sentence (People v.
Martinez (1999) 76 Cal.App.4th 489, 496), and defendant must overcome a
considerable burden in convincing us that his sentence is
disproportionate.  (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)

            Looking
at the offense in the abstract, it is obvious that armed robbery presents a
grave risk of death, a risk of which Richardson was certainly aware.  (People
v. Hodgson, supra, 111 Cal.App.4th at p. 580.)  Furthermore, the facts of this particular
case are that Richardson used a firearm to commit the crime, a factor that
justifies a more severe punishment.  (See
People v. Martinez, supra, 76
Cal.App.4th at pp. 497-498.)  In
addition, as the probation officer’s report notes, the manner in which the
crime was carried out indicates planning. 
(Cal. Rules of Court, rule 4.421(a)(8).)  Beyond his use of a firearm, Richardson’s
role in the offense was anything but trivial, since he was identified as the
man who took Al Junaidi’s possessions. 
And obviously, most significant in our evaluation of the seriousness of
the offense must be the fact that the consequence of the crime was the victim’s
death.

            Turning
to the nature of the offender, Richardson asks us to give principal consideration
to his youth.  But here, unlike >Dillon, there was no evidence that
Richardson was especially immature for his age. 
(Dillon, supra, 34 Cal.3d at
p. 483.)  While it is true he had no
prior criminal record, he used a deadly weapon in committing the robbery.  He also argues there was no finding he
harbored specific intent, because he was convicted under the natural and
probable consequences doctrine.  We have
explained in part I, ante, that
Richardson was not convicted based on this doctrine, and thus this argument is
erroneous.  Contrary to his contention,
he did possess a specific criminal intent, as the jury was required to find
that he harbored the specific intent to commit robbery.  The intent to commit that offense was all
that was required for conviction of felony murder.  (Cavitt,
supra, 33 Cal.4th at p. 197.) 

            In
these circumstances, we cannot conclude that the sentence in Richardson’s case
is the type of “exquisite rarity” that will support a successful
proportionality challenge.  (>People v. Weddle, supra, 1 Cal.App.4th
at p. 1196.)

Disposition

            The
judgment is affirmed.

 

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We
concur:

 

_________________________

Needham,
J.

 

_________________________

Bruiniers,
J.