P. v. Yoakum

Filed 7/31/07 P. v. Yoakum CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant and the codefendant, Alton Lionell Sterling, committed a series of armed robberies at small, family-operated stores. Sterling is not a party to the appeal. During one of the incidents, appellant and Sterling both shot at Jose Chitay, who died from a bullet fired by Sterling. Appellant and Sterling both made confessions to a police detective. Appellant admitted that he committed about nine robberies, and fired the first shot at Chitay. He turned 14 years old, two months before the crimes. Sterling was 19 years old when the crimes were committed.

Appellant and Sterling were tried jointly in the criminal division of the superior court (the criminal court). The charges against appellant were filed directly in the criminal court, without a fitness hearing in the juvenile court, based on allegations under Welfare and Institutions Code section 707, subdivision (d)(2)(A) and (B), that were later found to be true.[1] Those allegations were that he was at least 14 years of age at the time of the crime, and he committed a crime that was punishable by death or life imprisonment, or that involved personal use of a firearm.

Sterling had a jury trial. Appellant waived a jury. The trial court found him guilty of one count of first degree murder (count 1), 10 counts of second degree robbery (counts 7 - 14, 17 & 19), one count of attempted robbery (count 2), and one count of assault with a firearm (count 18), plus firearms discharge enhancements. It also found true one special circumstance allegation, murder during a robbery. It sentenced appellant to state prison for a determinate term of 65 years, consecutive to an indeterminate term of 50 years to life.

Appellant contends: (1) The case must be remanded for resentencing under section 731, because the trial court erroneously believed that it lacked discretion to impose a lesser sentence, based on the facts and circumstances of the case, that would make appellant eligible for the California Youth Authority (CYA). (2) He was deprived of due process of law because certain provisions of section 602, subdivision (b) are vague and uncertain. (3) Imposition of a sentence of 115 years to life on a 14-year-old offender constitutes cruel and unusual punishment.

Based on the facts of the crimes and the applicable law, we find no error, and affirm.

FACTS

1. Counts 1 and 2 (the Murder and Attempted Robbery of Chitay)

Around 10:30 a.m. on September 10, 2002, police officers arrived at a small store on South Normandie Avenue in Los Angeles.[2] Chitay was lying on the floor behind the cash register, bloody and nonresponsive. The drawer of the cash register was open, and there was money in it. More money was strewn about on the floor.

Chitay died from a bullet that entered through the left forehead and exited behind the left ear. The bullet was fired from a distance of more than two or three feet. A second gunshot wound left a bullet in his left shoulder. Only that bullet was recovered. From the path of the gunshot through the head, it was possible that the same bullet caused the wounds to the head and shoulder. A third gunshot wound came from a bullet that passed through the left thigh. The gunshots to the shoulder and thigh were not life threatening.

A surveillance camera made a videotape of appellant and Sterling committing the crime, which the jury watched at the trial.

Appellant described the crime to a detective following his arrest two days later, on September 14. He said that he and Sterling entered the store around 10:00 a.m. He went behind the counter, displaying a pistol. He told the man to give him the money. The man opened the cash register and put some money into a plastic bag. When the man lifted the tray, appellant saw more money there. He told the man to put the money from under the tray into the bag. The man hesitated and put the tray down again. He started to hand appellant the bag, but simultaneously tried to grab appellants gun. Appellant fired at the man once. He thought he shot him, but was not sure if he shot him, or where the shot might have hit him. The man squatted down after the shot was fired. He then tried to grab Sterlings gun. As appellant ran from the store, he heard Sterling fire a shot. Appellant and Sterling drove away together.[3]

When appellant and Sterling were arrested on September 14, the police recovered a .25-caliber pistol and a nine-millimeter pistol. Appellant told the detective that he used the .25-caliber pistol and Sterling used the nine-millimeter pistol. Tests showed that the .25-caliber pistol fired an expended bullet and a shell casing that were recovered at the crime scene. The nine-millimeter pistol fired the bullet that was removed from Chitays shoulder, and also fired two nine-millimeter cartridge cases that were found at the scene.

Thus, the evidence showed that appellant fired the first shot, Sterling thereafter fired twice, and it was one of Sterlings shots that killed Chitay.

2. The Remaining Counts

We summarize the incidents in chronological order, using the generic term cashier for the different victims at the cash registers.

Count 7: About 10:25 a.m. on September 1, three young African-American men entered a liquor store together. One of them went behind the counter, pointed a gun at the cashiers temple, and demanded the money from the cash register. The cashier gave the man the money and the men left. The cashier was unable to make an identification, but a surveillance camera made a videotape of the crime. Appellant confessed he was the gunman, when he was shown photos of himself that were derived from the videotape.

Count 11: Around 8:00 a.m. on September 5, two young African-American men walked into a minimarket. The cashier and her mother were at work behind the counter. One of them said that this was a robbery, and pulled out a handgun. He put the gun behind the back of the cashiers mother and demanded all of the money. The cashier gave the money from the cash register to the other man, who stood in front of the counter. The two men then ran from the store. From a photo lineup and at the trial, the cashier identified appellant as the gunman and Sterling as the man to whom she gave the money.

Count 8: Around 9:00 a.m. on September 5, one young African-American male entered another market, while another stayed in a car parked outside. The young man who entered pointed a gun at the cashier and said he wanted the money. The cashier handed over all of the money from the cash register. The man returned to the car, which left. When shown a photo lineup, the cashier identified appellant as the gunman. At the trial, he was not positive of that fact, but he said that appellant look[ed] familiar, and look[ed] like the same person.[4]

Counts 9 and 10: Between 9:00 and 9:30 a.m. on September 5, two young African-American men entered a combined minimarket and restaurant. One of them threatened the minimarkets cashier with a gun. He then pointed his gun at the cashiers son-in-law, who was working in the restaurant portion of the business. He forced the son-in-law to lie on the ground, and took the money from the restaurant. Meanwhile, the other man displayed a gun to the cashier, and forced her to give him the money from the cash register. In the courtroom, both of the victims identified appellant as the gunman who made the son-in-law lie on the ground and Sterling as the gunman who took the money from the cashier.

As previously indicated, Chitay was killed on September 10. Appellant and Sterling committed other crimes that same morning.

Counts 12 and 13: About 8:40 a.m. on September 10, two young African-American men entered a store. One of them pointed his gun at the cashier and demanded cash. The other one pointed his gun at the cashiers daughter-in-law and demanded bandannas. The victims complied and the men left. From photo lineups and at the trial, both of the victims identified appellant and Sterling as the gunmen.

Count 14: About 10:15 a.m. on September 10, two young African-American men entered another market and pulled out guns. One of them pointed his gun at the cashier and demanded money. The other one grabbed some cigars. The cashier put the money into a bag and handed it over. One of the men fired once towards the ceiling. Then both men left. From a photographic lineup and at the trial, the cashier identified appellant as the gunman who demanded money and fired the shot, and Sterling as the gunman who took the cigars.

Counts 17 and 18: Around 8:30 a.m. on September 12, two young African-American men entered a tool store. One of them pointed a gun at the cashier. The other one pointed his gun at the cashiers husband. The gunman who was close to the cashier told her to give him the money from the cash register. The cashiers husband told her to give the men the money box. The cashier did so, but the gunman pushed the box away. He repeatedly ordered the cashier to open the cash register, and said he was going to shoot her if she did not do so. She opened the cash register and handed over the money from it. The men ran out of the store and entered a van. As the van pulled away, the cashiers husband threw a stick at it and the man in the passengers seat shot at him. The bullet missed. From a photo lineup, the cashier identified appellant as the gunman who threatened to shoot her. She did not make an identification in the courtroom. When interviewed, appellant admitted the crime, and recalled that, as he drove the van away, the man threw something at it. However, appellant denied that a gunshot was fired from the van.

Count 19: Around 8:45 a.m. on September 12, two young African-American men entered a different market. One of them stayed by the door. The other one pointed a gun at the cashier, and forced her to give him the money from the cash register. Then the men left. The cashier identified appellant as the gunman from the photo lineup, but did not repeat that identification in the courtroom.

3. The Arrests

Later in the morning of September 12, around 10:00 or 10:30 a.m., a police officer in a patrol car heard a radio broadcast about robberies in the area. The broadcast mentioned two male African-Americans, about 15 to 19 years of age. It also described a van. The officer saw an empty, crashed van that matched the description. Two or three blocks from the van, he made eye contact with a male African-American of the specified age, who was walking on the sidewalk. The young man, later identified as Alonso Billups, walked to a phone booth, picked up the handset, and began talking into it without putting in any change. The patrol car executed a U-turn. The officer and his partner asked Billups to stop. Billups ran away, holding a hand at his waistband. As he entered the back of an apartment building, he pulled out a semiautomatic weapon. The officers broadcast for assistance and set up a perimeter. A large number of officers cordoned off the area.

Billups was taken into custody around 12:00 noon. A detective arrived around that time. He asked that the perimeter continue as he had information about possible robbery suspects at that location. About 5:00 p.m., appellant and Sterling came out. By that time, the officers had obtained a search warrant. They found the nine-millimeter pistol inside the location and the .25-caliber pistol in bushes nearby.

DISCUSSION

1. The Section 731 Issue

Prior to the sentencing hearing, appellant filed a motion for a juvenile fitness study, based on People v. Thomas (2005) 35 Cal.4th 635 (Thomas) and Penal Code sections 1170.17 and 1170.19. He argued that he was entitled to such a hearing upon request, if a CYA commitment was possible, and such a commitment was possible, because section 731 permitted the trial court to set a maximum sentence that could be served before appellant was 25 years old. He further maintained that denial of his motion would violate his right to federal due process under the Fifth and Fourteenth Amendments of the United States Constitution. Those arguments have been renewed on appeal, with one additional argument, that the trial court should have computed appellants maximum confinement time at CYA pursuant to section 731.

We reject appellants arguments because the cited authorities do not support his position, and he was ineligible for a CYA commitment.

The issue requires consideration of numerous provisions of the Penal Code and Welfare and Institutions Code, many of which were discussed in Thomas, supra, 35 Cal.4th 635.

Subdivision (a) of section 731 permits various dispositions, including a commitment to CYA, if a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, . . . It should be noted that appellant was not made a ward of the court under section 602. Rather, he was tried and convicted in the criminal court.

The second sentence of section 731, subdivision (b) ( 731(b)) provides that physical confinement at CYA cannot exceed the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, . . . Appellant reads that sentence to mean that the facts and circumstances of the matter can be used to cut down the sentence of a minor who is statutorily ineligible for CYA, in order to make him eligible for CYA. We do not so construe it, for these reasons:

When a minor who is 14 years of age or older is charged with specified offenses, the prosecutor can file the charges directly in the criminal court, pursuant to either subdivision (d) of section 707 ( 707(d)) or subdivision (b) of section 602 ( 602(b)). (Thomas, supra, 35 Cal.4th at p. 637.)

Here, the direct filing of the accusatory pleading in criminal court was based on allegations under subdivision (d)(2)(A) and (B) of section 707. Those provisions state: Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court ofcriminal jurisdiction in any case in which any one or more of the following circumstances apply: [] (A) Theminor is alleged to have committed an offense which if committed by an adult would be punishable by death or imprisonment in the state prison for life. [] (B) The minor is alleged to have personally used a firearm during the commission or attempted commission of a felony, as described in Section 12022.5 of the Penal Code.

Because the charge was initially filed in criminal court, the next pertinent statute is Penal Code section 1170.17, subdivision (a). It states, in pertinent part: When a person is prosecuted for a criminal offense committed while he or she was under the age of 18 years and the prosecution is lawfully initiated in a court of criminal jurisdiction without a prior finding that the person is not a fit and proper subject to be dealt with under the juvenile court law, upon subsequent conviction for any criminal offense, the person shall be subject to the same sentence as an adult convicted of the identical offense, in accordance with the provisions set forth in subdivision (a) of Section 1170.19, . . .

The applicable language in subdivision (a) of Penal Code section 1170.19 states: Notwithstanding any other provision of law, the following shall apply to a person sentenced pursuant to Section 1170.17. [] (1) The person may be committed to the Youth Authority only to the extent the person meets the eligibility criteria set forth in Section 1732.6 of the Welfare and Institutions Code.

Section 1732.6 states, in pertinent part: (a) No minor shall be committed to the Youth Authority when he or she is convicted in a criminal action for an offense described in subdivision (c) of Section 667.5 [a violent felony] or subdivision (c) of Section 1192.7 of the Penal Code [a serious felony] and is sentenced to incarceration for life, an indeterminate period to life, or a determinate period of years such that the maximum number of years of potential confinement when added to the minors age would exceed 25 years. Except as specified in subdivision (b), in all other cases in which the minor has been convicted in a criminal action, the court shall retain discretion to sentence the minor to the Department of Corrections or to commit the minor to the Youth Authority. [] (b)  No minor shall be committed to the Youth Authority when he or she is convicted in a criminal action for: [] . . . [] (2) An offense described in paragraphs (1), (2), or (3) of subdivision (d) of Section 707, if the circumstances enumerated in those paragraphs are found to be true by the trier of fact.

Many of the previously quoted statutes were discussed in Thomas, supra, 35 Cal.4th 635. The case involved a 15-year-old minor who was charged directly in the criminal court, based on allegations that he attempted a robbery while using a handgun. He entered into a negotiated plea agreement under which he could not be sentenced to more than 13 years in prison. Thomas held that the trial court did not have discretion under Penal Code section 1170.19, subdivision (a) to commit the minor to CYA, because the minor did not meet the eligibility requirements of section 1732.6, as his sentence, when added to his age, would exceed 25 years. (Thomas, supra, 35 Cal.4th at pp. 642-644.)

Here, appellant was 14 years old when he committed the offenses. He was convicted of murder and robbery, which are violent and serious felonies. He was sentenced to a determinate term of 65 years, consecutive to an indeterminate term of 50 years to life. Under Thomas, he was ineligible for a CYA commitment, as his sentence, when added to his age, exceeded 25 years.

Appellant points out that Thomas did not discuss the second sentence of section 731(b), which became effective on January 1, 2004 (Stats. 2003, ch. 4, 52). That sentence requires the court to consider the facts and circumstances of the matter or matters when setting the maximum term of physical confinement at CYA. However, nothing in Thomas supports appellants attempt to use section 731(b) to avoid the sentencing criteria of section 1732.6. Indeed, Thomas forebade use of another statute, section 1385, for the purpose of avoiding section 1732.6s statutory limits on sentencing. (Thomas, supra, 35 Cal.4th at p. 644.)

Moreover, the true findings on the section 707(d) allegations provide a separate reason why appellant was ineligible for a CYA commitment, since subdivision (b) of section 1732.6 precludes a CYA commitment if an allegation under section 707(d) is found true by the trier of fact.

Appellant also relies on cases that involve use of the facts and circumstances of the matter to set the maximum term of confinement for minors who are committed to CYA from the juvenile court. They are inapposite here, since appellant was sentenced by the criminal court, and was ineligible for CYA.

2. The Section 602 Issue

As previously indicated, if a minor is at least 14 years of age and the charges involve certain specified offenses, the case can be filed directly in the criminal court, pursuant to either section 707(d) or section 602(b). The direct filing here was based on allegations under section 707, subdivision (d)(2)(A) and (B). Since section 602(b) is not involved in this case, we need not address appellants constitutional attack on certain provisions of that statute.

Respondent argues that section 602(b) is constitutional, and applies to this case, because it mandates original filing in the criminal court if the minor was at least 14 years of age, and the charge was [m]urder, as described in Section 187 of the Penal Code, if one of the circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is alleged by the prosecutor, and the prosecutor alleges that the minor personally killed the victim. ( 602, subd. (b)(1).) Respondent overlooks the fact that there was no allegation under section 602(b), probably because it was Sterling, and not appellant, who fired the fatal bullet.

3. Cruel and Unusual Punishment

Finally, appellant contends that imposition of a sentence of 115 years to life on a 14-year-old offender constitutes cruel and/or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, 17.) As this issue was not raised below, there is a question of whether it is cognizable on appeal. We will assume the issue was not forfeited. However, based on the nature of the crimes committed by appellant, we find no merit in it.

We are not cited to United States Supreme Court or California authority holding that life imprisonment is constitutionally excessive, irrespective of other circumstances, where special circumstance murder is committed by a juvenile. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 15.)

Certain facts about appellants background are set forth in his statement to the police and in the probation report.

Appellant told the detective that he was about to start ninth grade, and lived at an apartment with his mother and siblings. He later said that he had spent the previous night at the location where he was arrested. He admitted committing numerous robberies, during which he went behind the counters, pointed his gun at the cashiers, and demanded money, while Sterling stayed in front of the counters. He tried to explain why he did the crimes. He said that he had formerly lived with his grandmother but she died. After that he lived with his aunt and his mother, but his mother tended to leave. The last time, she left him at home by himself for seven months. He decided to go[] out there to get something of [his] own. He used $100 that his mother had given him to purchase the .25-caliber pistol.

The probation report furnished additional facts. The deputy probation officer who interviewed appellant found him to be cooperative, intelligent, polite, and articulate. Appellant admitted that he had been a member of the Four Trey Gangster Crips since 2000. His moniker was Young Dopey. He explained that his life had changed when his grandmother died when he was six years old, as she had been a stable influence. He knew from the time he was seven years old that his mother was a drug addict. He had never had a relationship with his father. He had taken care of himself since he was nine years old. He regretted the life choices he had made, and wished he could turn back the hands of time and do things differently.

The probation report further showed that appellant had two prior court cases. When he was nine years old, he and other juveniles burglarized an elementary school. When he was 11 years old, he stole a belt and a wallet from a department store. Both of those cases resulted in a disposition of home on probation.

Finally, the probation report stated that appellant had continued his education while he was incarcerated on this case. Appellant said he only needed five more credits to graduate high school. An older report card of his, from the seventh grade, showed that he had excellent grades at that time.

It appears to us that appellant is an intelligent young man who may well have suffered from inadequate parental care as a child. Even so, it was his choice to belong to a criminal street gang, and to misuse his significant potential for the purpose of committing violent crimes.

As the trial court recognized, the evidence of appellants guilt was overwhelming.

Contrary to appellants suggestion, he does not resemble the defendant in People v. Dillon (1983) 34 Cal.3d 441, who behaved like an unusually immature youth. (Id. at p. 488.) The evidence showed appellant to be a sophisticated 14 year old, who played the lead role in numerous armed robberies. Sterling, his accomplice, was five years older, but generally played a lesser role in the crimes. It was appellant who approached the cashiers behind the counters, pointed his gun at them, and demanded the money. During the various robberies, his acts included pointing his gun at a victims head, sticking his gun in a victims back, making a victim lie on the floor, and firing a shot into the ceiling. He also had no hesitation about firing the first shot at Chitay.

Having considered all of the circumstances, we hold that the sentence imposed by the trial court was not constitutionally excessive.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P.J. BOLAND, J.

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[1] Further code references are to the Welfare and Institutions Code unless otherwise stated.

[2] All subsequent events occurred in 2002 unless otherwise stated.

[3] As indicated, the defendants were tried simultaneously, but appellant waived a jury. Sterlings jury heard his statement to the detective. He said he walked behind the counter after appellant fired the first shot, to see what had happened. The man was leaning down on the floor in a balled up position. When he saw Sterling behind the counter, he partially raised himself, and tried to grab Sterlings gun. Sterling shot him. Later that day, Sterling told a friend that he might have shot [the man] in the head.

[4] Several of the witnesses mentioned that appellants hair was much longer at trial than at the time of the crimes.