P. v. Sanchez
Filed 6/25/13 P. v. Sanchez CA2/2
Opinion following remand from Supreme Court
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS SANCHEZ,
Defendant and Appellant.
B230260
(Los Angeles
County
Super. Ct.
No. BA342179)
APPEAL from
a judgment of the Superior Court
of
County. Lance A.
Ito, Judge. Affirmed with directions.
Allen G.
Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
This case
is before us on remand from the California Supreme Court. Pursuant to the Supreme Court’s instructions,
we have vacated our previous opinion in this case and reconsidered the cause in
light of Miller v. Alabama (2012) 567
U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller). We conclude that the outcome remains the
same.
INTRODUCTION
Appellant Marcos Sanchez appeals
from the judgment following a trial by jury in which he was convicted of
Code section 187, subdivision (a)
name="_ftnref1" title="">[1] (count 1), and conspiracy to commit murder in
violation of section 182, subdivision (a) (count 2). The jury found true the firearm allegations
that a principal personally used a firearm (§ 12022.53, subds. (b), (e)),
personally and intentionally discharged a firearm (§ 12022.53, subds. (c),
(e)), and did so causing death (§ 12022.53, subds. (d), (e)). The jury also found true the
186.22, subd. (b)(1)). The trial court
sentenced appellant to a mandatory term of 50 years to life in state prison,
calculated as 25 years to life on count 1, plus a consecutive term of 25 years
to life for the firearm allegation that a principal personally and intentionally
discharged a firearm causing death. The
court imposed the same sentence on count 2, which was stayed pursuant to
section 654. The court also imposed a
10-year sentence on the gang finding, but stayed the sentence in order to
impose the increased sentence on the firearm enhancement. The court awarded appellant 998 days of
actual custody credit and ordered him to pay $6,382.17 to the California Victim
Compensation and Government Claims Board jointly and severally with his
codefendant.
Appellant
contends (1) there was insufficient
evidence to support his conviction for conspiracy to commit murder, (2) his
sentence was cruel and unusual in light of his young age of 16 years and eight
days, and (3) modifications must be made to the abstract of judgment. We previously agreed that modifications must
be made to the abstract of judgment, but otherwise affirmed the judgment. On reconsideration of appellant’s case in
light of Miller, we affirm the
judgment. The opinion we now file
presents a revised analysis of the second issue (cruel and unusual punishment),
but is generally the same as our original opinion regarding the remaining
issues and the factual summary.
FACTS
Prosecution Evidence
On the
evening of March 13, 2008,
Jorge G. (Jorge) and some friends were standing outside his apartment on 80th
Street in Los Angeles
when Jorge saw appellant, whom he recognized as a student at his high
school. Jorge had once seen appellant
fighting at school and heard him claim to be a member of the “Southgate Bay 13â€
gang. Appellant approached the group
with a much shorter male, who was later identified as Pedro R. (Pedro). Both appellant and Pedro were wearing hooded
sweatshirts and Jorge testified they had the hoods over their heads. Jorge heard Pedro say that he and appellant
“were about to do something†and “about [to] kill somebody.â€
right hand, and had a gun in his waistband.
Appellant held the gun “once in awhile.â€
When a car passed by, appellant put his hand on the gun. Pedro’s hands were concealed. Jorge and his friends eventually went inside the
apartment and heard a “shot.†They went
back outside and saw a body lying on the ground near Towne
Avenue.
When the
police first interviewed Jorge six months later on November 6, 2008, he did not identify appellant or Pedro
from photographic six-packs. Jorge did
identify appellant at the preliminary hearing on November 13, 2008.
Angie R.,
who was standing outside with Jorge on the night of the murder, identified
appellant at a field show up later that night.
She also identified appellant from a photographic six-pack, and
identified him in court. Angie R.
confirmed that appellant was wearing a plastic “doctor’s†glove. She admitted testifying at the preliminary
hearing that she saw appellant and Pedro walking up and down the street,
looking at the victim’s house. While she
could not recall having testified at the preliminary hearing that appellant
said he was “waiting for the other guy to come out so he could shoot him,†in
her recorded police interview played for the jury she stated that appellant
“started talking to me, you know, about that he was going to shoot him
. . . .â€
Crystal C.,
who was also standing outside on the night of the murder, identified appellant
in court, and said she had “seen him around†and at school. Her cousin Danny and appellant were friends,
and she and Pedro were friends. On the
night of the murder, Crystal C. saw appellant and Pedro walking on 80th
Street. She
identified appellant and Pedro in photographic six-packs shown to her by the
police. With respect to appellant’s
photograph, Crystal C. wrote, “I seen him on the day they kill that man. That he was taking a log [
had written was not true, she admitted telling the police that appellant said
he was going to shoot the victim, “that guy from the corner,†and it was taking
a long time for him to come outside.
The victim,
18-year-old Ricardo R. (Ricardo), was a member of the Kansas
Street gang.
On the night of the murder, his sister Kelley R. (Kelley) was standing
outside her house with a friend and Ricardo.
She saw appellant and Pedro passing in front of her house “over and
over.†She identified appellant in court
and testified that she had seen him the day before the murder. She recognized Pedro because he had fought
with her brother two days earlier. At
some point, appellant and Pedro stopped walking and stood next to a tree near
the corner of the street. Ricardo was
leaning against a brick wall when “out of nowhere,†he got shot in the
head. Kelley identified appellant in a
field show up later that night and was “sure†it was him. While she could not identify appellant in a
photographic six-pack shown to her some time after the murder, she did identify
appellant at the preliminary hearing.
She also identified Pedro from a photographic six-pack.
Ricardo’s autopsy results showed that
he suffered a “through and through†gunshot to his head. According to the medical examiner, a bullet
shot from a short distance has a better chance of exiting the victim’s
body. The medical examiner opined that a
.357 Magnum could propel a bullet through someone’s head if the range of fire
was not far away.
The day after the murder the police
searched Pedro’s house and recovered a .357-caliber revolver in the bedroom, a
yellow notebook with gang writing on it, and a latex glove in the waste
basket. The gun had a six-round
capacity, and had five live rounds and one expended round. Appellant lived next door to Pedro. His house was also searched and the police
recovered a shoebox with gang writing on it and numerous papers with writing
consistent with the Southgate Bay 13 gang.
Los Angeles Police Department
Detective Eric Crosson, who responded to the crime scene, was at the field show
up involving Angie R. and confirmed that she identified appellant. Detective Crosson visited the crime scene
numerous times. Approximately four days
after the murder, he found a latex glove on the sidewalk of the 7900 block of
Towne Avenue. The glove he found was
smaller than the one found in Pedro’s bedroom.
Detective Crosson taped some of the
interviews he conducted during his investigation of the shooting. In general, he did not inform witnesses they
were being taped. When he interviewed
Crystal C., she stated “multiple times†that appellant said what she had
written, i.e., that it was taking the victim a long time to come outside to
shoot him.
When appellant was arrested, he did
not have any tattoos on his hand. He
later had “Bay†tattooed on his hand.
Detective Derek O’Malley of the
Southgate Police Department testified as a gang expert. He was familiar with the Southgate Bay 13
gang, which had approximately 14 members and was a rival of the Kansas
Street gang. Detective O’Malley knew
Pedro, whose moniker was “Demon.†Pedro
had admitted to the detective that he was a member of the Southgate Bay 13
gang. The notebook recovered from
Pedro’s house was filled with gang writing and gang monikers. According to Detective O’Malley, “Bay†stands
for “Bad Ass Youngsters,†or “Barrio Ardmore Youngsters.†Detective O’Malley opined that Pedro was an
active member of the Southgate Bay 13 gang, and that appellant was also a
member of the gang. Detective O’Malley
testified that the “y†in the “Bay†tattoo on appellant’s hand was written in a
manner associated with the gang.
According to Detective O’Malley, it was not uncommon for a gang member
to let other people know that he was planning to commit a crime. Based on a hypothetical using the facts of
the case, Detective O’Malley opined that Ricardo’s murder was committed for the
benefit of, at the direction of, and in association with a criminal street
gang.
Defense Case
Mitchell
Eisen, who has a PhD in psychology and is an expert on eyewitness memory,
testified about the limitations of human memory and the factors that tend to
lead to inaccurate witness identification and testimony.
Marie Rodriguez, a defense
investigator, interviewed Crystal C. on April 29, 2009. Crystal C. told her that she could not
identify appellant because he had been wearing a
hooded sweatshirt, and that Jorge informed her of
appellant’s identity.
According
to a DNA expert, the gun recovered by the police contained the DNA of at least
four different people, and the presence of appellant’s and Pedro’s DNA was
inconclusive. The latex glove found at
Pedro’s house contained DNA from at least three sources, including appellant
and Pedro. And the latex glove found
near the crime scene did not contain DNA from appellant or Pedro.
Stipulations
The parties entered into several
stipulations, including that if Brenda German had been called as a witness she
would have testified to the following:
“Brenda was present on March 13, 2008, in the driveway where [Ricardo]
was shot. Prior to the shooting, Brenda
saw two males walking back and forth on 80th Street. One male was taller than the other. The taller one was wearing a hooded
sweatshirt and kept the hood pulled up, preventing Brenda from seeing his
face. [¶] The two males went to the corner of Towne
Avenue and 80th Street and crouched down.
It looked like the shorter male was trying to aim. Brenda and Ricardo went inside the house for
about 30 minutes, and then went back outside for about 30 minutes, at which
time he was shot. [¶] Ricardo was leaning against the wall when he
was shot. Brenda was on his left, and
[Kelley] was in front of him. Brenda
heard a single gunshot, and Ricardo fell to the ground. Brenda did not see who shot or where the shot
came from.â€
DISCUSSION
I. Substantial Evidence Supports Appellant’s
Conviction for Conspiracy to Commit Murder.
Appellant contends that his
conviction for conspiracy to commit murder must be reversed because there was
insufficient evidence to prove that he had agreed with anyone to commit
murder. We disagree.
When determining whether the
evidence is sufficient to sustain a conviction, “our role on appeal is a
limited one.†(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We review the entire record in the light most
favorable to the judgment to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. (Ibid.) We presume in support of the judgment the
existence of every fact that a trier of fact could reasonably deduce from the
evidence. This standard applies whether
direct or circumstantial evidence is
involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.) “[I]t is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.†(People
v. Maury (2003) 30 Cal.4th 342, 403.)
Even when there is a significant amount of countervailing evidence, the
testimony of a single witness can be sufficient to uphold a conviction. (People
v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
So long as the circumstances reasonably justify the trier of fact’s
finding, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant reversal of
the judgment. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears
that “‘upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’
[Citation.]†(
331.)
A conspiracy is an agreement by two
or more persons to commit an offense with the specific intent to commit the
elements of the offense, coupled with an overt act by one or more of the
conspirators in furtherance of the conspiracy.
(§§ 182, subd. (a)(1), 184; People
v. Jurado (2006) 38 Cal.4th 72, 130; People
v. Russo (2001) 25 Cal.4th 1124, 1131.)
“To prove an agreement, it is not necessary to establish the parties met
and expressly agreed†to commit the target offense. (People
v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
Rather, “‘a criminal conspiracy may be shown by direct or circumstantial
evidence that the parties positively or tacitly came to a mutual understanding
to accomplish the act and unlawful design.’â€
(Ibid., quoting
623, 628.) Thus, “‘a conspiracy may be
inferred from the conduct, relationship, interests, and activities of the
alleged conspirators before and during the alleged conspiracy. [Citations.]’†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1135; People v. Herrera (2000) 83 Cal.App.4th 46, 64.)
We reject
appellant’s argument that there was insufficient evidence to show that he
agreed with Pedro to commit murder. The
evidence established that on the night of the murder appellant and Pedro were
seen together, walking back and forth in front of Ricardo’s house several
times. Pedro had been in a fight with
Ricardo a few days prior to the murder.
Appellant and Pedro were members of the same gang, and Ricardo was a
member of a rival gang. Appellant and
Pedro talked with the group of people standing outside on 80th Street before
the murder, and either appellant or Pedro told them they were planning to shoot
someone and that it was taking this person a long time to come outside. Appellant was wearing a latex glove on his
right hand, and kept touching a gun that was in his waistband. At some point, appellant and Pedro walked to
the corner of Towne Avenue and 80th Street and crouched down. It appeared that Pedro was trying to take
aim. The police recovered a .357-caliber
gun and a latex glove from Pedro’s house.
One expended cartridge was found in the gun. Ricardo was shot by a single bullet to the
head that may have been fired with a .357 Magnum. Moreover, in the gang expert’s opinion, the
crime was gang-related. Based on these
circumstances, the jury could easily infer that appellant and Pedro had a
mutual agreement and intent to kill Ricardo.
Accordingly, appellant’s conviction for conspiracy to commit murder was
supported by substantial evidence.
II. Appellant’s Sentence is Not Cruel and
Unusual.
Appellant, who
was 16 years eight days at the time of the murder, argues that his sentence of
50 years to life constitutes cruel and unusual punishment in violation of the
federal and state Constitutions. Specifically,
he argues that “his sentence of 50 years to life coupled with the fact that,
had he been just 8 days younger, his case could not have been directly filed in
adult court, and he may well have been treated as a juvenile, shocks the
conscience, is grossly disproportionate to his crime, and violated the Eighth
Amendment to the United States Constitution and the prohibition against cruel
or unusual punishment under article I, section 17 of the California
Constitution.†We disagree.
A sentence constitutes cruel and
unusual punishment under the Eighth
Amendment if it is grossly disproportionate to the severity of the
crime. (Ewing v. California (2003) 538 U.S. 11, 20; Rummel v. Estelle (1980) 445 U.S. 263, 271.) Similarly, a sentence is cruel or unusual
under California law if it is so disproportionate to the crime as to shock the
conscience and offend fundamental notions of dignity. (In re
Lynch (1972) 8 Cal.3d 410, 424; People
v. Norman (2003) 109 Cal.App.4th 221, 230.) The Lynch Court suggested a three-part analysis in which the court
examines the nature of the offense and the defendant, the punishment for more
serious offenses within the jurisdiction, and the punishment for similar
offenses in other jurisdictions. (
431, 436.) Disproportionality of any one
of these three factors can be sufficient to demonstrate that a particular
punishment is cruel and unusual. (
487, fn. 38.) Here, appellant
discusses only the first factor.
In arguing that his sentence is
disproportionate to his culpability, appellant primarily relies on
47, in which this court held that a sentence of 84 years to life imposed on a
defendant who was 16 when he committed several nonhomicide crimes was
unconstitutional as constituting a de facto sentence of life without parole
(LWOP), which provided no meaningful opportunity for release. In reaching our conclusion, we relied on the
United States Supreme Court’s decision in Graham
v. Florida (2010) 560 U.S. 48 (Graham),
in which the Supreme Court held that a sentence of LWOP for any juvenile
offender who did not commit a homicide was categorically cruel and unusual
under the Eighth Amendment. Following Graham,
our Supreme Court held that “sentencing a juvenile offender for a nonhomicide
offense to a term of years with a parole eligibility date that falls outside
the juvenile offender’s natural life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment.†(People
v. Caballero (2012) 55 Cal.4th 262, 268 [reversing 110-year-to-life
sentence imposed on 16-year-old convicted of three gang-related attempted
murders].)
The United States Supreme Court
recently held in Miller, supra, 132
S.Ct. 2455 that a mandatory LWOP sentence for those under the age of 18 at the
time of their crimes is cruel and unusual under the Eighth Amendment. (132 S.Ct. at p. 2460.) There, two 14-year-old offenders were
convicted of murder and sentenced to LWOP.
In neither case did the sentencer have any discretion to impose a
different punishment. (
Relying on Graham and
the Miller court concluded that such
a mandatory LWOP sentencing scheme for minors was unconstitutional because it
failed to consider the “foundational principle†that children are different
from adults (Miller, supra, at
p. 2465); they have “diminished culpability and greater prospects for
reform†(id. at p. 2464).
Miller
is distinguishable because appellant did not receive an LWOP sentence. Rather, he was sentenced to a mandatory term
of 50 years to life (25 years to life for homicide plus 25 years to life for
the firearm enhancement). Appellant
nevertheless argues that given his youth, this mandatory sentence constitutes
an unconstitutional de facto LWOP sentence.
Citing various statistical sources, he asserts that his life expectancy
is somewhere between 64 to 76 years of age, without accounting for the impact
of incarceration. Taking into account
the harsh realities of prison, he argues it is reasonable to assume that he
will actually live less than 50 years from the time he was sentenced, thus
precluding any meaningful prospect of ever facing parole or release.
But we cannot necessarily conclude
that a mandatory sentence of 50 years to life imposed on a juvenile offender
who was 16 when he committed homicide constitutes de facto LWOP. It is entirely possible that appellant will
become eligible for parole or release during his lifetime.
We are satisfied that under the
circumstances here, appellant’s murder sentence is not unconstitutional. The evidence showed that prior to the murder,
appellant and fellow gang member Pedro bragged to some people in the neighborhood
that they were going to shoot someone, and appellant was holding a gun while
wearing a latex glove on his hand.
Appellant and Pedro laid in wait, walking back and forth in front of
Ricardo’s house until he came out. They
crouched down and either appellant or Pedro shot Ricardo point blank in the
head with one bullet while Ricardo was standing with his sister and a
friend. Appellant’s actions demonstrated
a complete lack of mercy and disregard for human life, and a lack of concern
whether others might also be shot.
Appellant attempts to minimize the
seriousness of his conduct by pointing out there was no evidence or jury
finding that he was the actual shooter.
But had the jury made a finding that appellant personally discharged the
firearm causing death, he would have received a mandatory 10-year increase in
his sentence. (§§ 186.22, subd.
(b)(1)(C), 12022.53, subd. (e)(2).)
Appellant also points to his
limited criminal record, which consists of a single offense of vehicle theft
committed when he was 15 years old for which he received home probation and
jurisdiction was terminated 10 months later.
Based on the facts here, we find that appellant’s youth and minor
criminal record were “substantially outweighed by the seriousness of the crime[s]
and the circumstances surrounding [their] commission
. . . .†(
1, 17.)
As appellant acknowledges,
successful challenges to sentences on the grounds of cruel and unusual
punishment are rare. (
735; Rummel v. Estelle, supra, 445
U.S. at p. 272.) Indeed, as the
People note, appellant’s sentence compares favorably with those in other cases
rejecting cruel and unusual punishment claims involving serious crimes
committed by young defendants with limited prior criminal records. (See, e.g., People v. Em (2009) 171 Cal.App.4th 964, 972–977 [upholding
sentence of 50 years to life for 15-year-old gang member who committed murder
during a robbery and whose prior record was not extensive];
10, 14–16 [15-year-old’s sentence of two consecutive terms of 25 years to life
for two special circumstance murders did not violate state or federal
Constitutions]; People v. Villegas
(2001) 92 Cal.App.4th 1217, 1230–1231 [upholding sentence of 40 years to life
for 17-year-old gang member who committed attempted murder with a firearm];
Cal.App.4th at p. 17 [upholding sentence of 50 years to life for
14-year-old gang member who committed murder].)
Appellant is a great danger to society.
This is not one of the rare cases in which the sentence imposed should
be reduced as cruel and unusual.
III. Appellant Should be Awarded One Additional
Day of Actual Custody Credit.
Appellant contends, and the People
concede, that he is entitled to one additional day of actual custody credit.
Pursuant to section 2900.5,
subdivision (a), a defendant convicted of a felony is entitled to credit
against a state prison term for
actual time spent in custody before commencement of the prison sentence,
including the day of sentencing. (§
2900.5, subd. (a); People v. Smith
(1989) 211 Cal.App.3d 523, 526.)
Generally, an appellant may not appeal an error in the calculation of
presentence custody credit unless the claim is first presented in the trial
court, which did not occur here. (§
1237.1.) However, the Court of Appeal
may address a presentence custody credit issue if other claims are also raised
on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100–1101;
411, 420–421.)
As a general rule, the time
credited includes the date of arrest, the date of sentencing, and every day in
between. (People v. Smith, supra, 211 Cal.App.3d at p. 526 [“Since
section 2900.5 speaks in terms of ‘days’ instead of ‘hours,’ it is presumed the
Legislature intended to treat any partial day as a whole dayâ€].) The probation report states that appellant
was arrested on March 17, 2008, and he
was sentenced on December 10, 2010.
This time span is 999 days.
Because the trial court only awarded appellant 998 days of custody
credit, the abstract of judgment must be amended to reflect 999 days of actual
custody credit.
IV. The Abstract of Judgment Must be Corrected
Regarding the Payment of Restitution.
Appellant contends, and the People
concede, that the abstract of judgment must be corrected because it does not
reflect that he and Pedro are jointly and severally liable to pay $6,382.17 in
restitution, and it improperly states that such restitution is to be paid to
the “victim(s),†rather than to the State Victim Compensation Board.
At the sentencing hearing, the
trial court ordered that appellant and Pedro are jointly and severally liable
to pay restitution, and that such restitution should be paid to the “Victim
Compensation Government Claims Board.â€
Because the oral pronouncement of judgment by the sentencing judge is
the judicial act which constitutes the rendition of judgment, it controls over
any conflicting written court documents. (People
v. Mesa (1975) 14 Cal.3d 466, 471; People
v. Hartsell (1973) 34 Cal.App.3d 8, 13; People
v. Hong (1998) 64 Cal.App.4th 1071, 1075.)
If an abstract of judgment fails to reflect the judgment pronounced by
the trial court, the error is clerical and the abstract can be corrected at any
time to make it reflect the true facts.
(People v. Mitchell (2001) 26
Cal.4th 181, 185; People v. Williams
(1992) 10 Cal.App.4th 827, 830, fn. 3; People
v. Jack (1989) 213 Cal.App.3d 913, 915; People
v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Mesa, supra, at p. 471;
In re Candelario (1970) 3 Cal.3d 702,
705.) Accordingly, the abstract of
judgment must be corrected here.
DISPOSITION
The trial court is directed to
amend the abstract of judgment to reflect 999 days of actual custody credit and
to reflect that appellant is jointly and severally liable for $6,382.17 in
restitution to be paid to the California Victim Compensation and Government
Claims Board, and to forward the amended abstract to the Department of
Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
cross-examination, Jorge testified Pedro said he was “going to blast someone.â€
