P. v. Gomez

Filed 7/30/07 P. v. Gomez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Quisteen Shum and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Edgar Omar Gomez appeals from a judgment after a jury convicted him of second degree murder and street terrorism and found true he was a gang member who vicariously discharged a firearm causing death and he committed the murder for the benefit of a criminal street gang. Gomez argues there were instructional, evidentiary, and sentencing errors. None of his contentions have merit, and we affirm the judgment.

FACTS

Robin Whitten was standing on his front porch when he saw a group of five young men. Four of the men were facing the other man, later identified as Alvaro Candelo. Whitten saw Candelo had his hands out facing forward at about waist level; he did not have a weapon in his hands. One of the men facing Candelo turned to his left, got a gun from his waistband with his right hand, and fired the gun at Candelo four or five times. Candelo bent over, held his stomach, and ran across the street. Whitten went into his house, grabbed the cordless telephone, went outside, and called 911. Three of the four men ran past Whittens house, but returned to help the fourth man who appeared to have a leg injury. Candelo staggered and eventually fell to the ground. Whitten, who was still on the telephone with emergency services, went to Candelo and directed traffic around him. Whitten later identified the person who he thought looked similar to the shooter, Luis Gutierrez, Chubbs. Near where Candelo was shot, there was a street sign with LPS painted on the sign.

Joanna O., who was approximately 10 years old, was at school playing handball when she saw seven or eight men yelling and fighting across the street next to a house. One of the men was facing a group of men. Someone in the group of men took out a gun and shot the lone man two or three times. She was scared and hid. She later identified the man, Gutierrez, she thought fired the gun.

The next day, officers interviewed Gomez, who was 15 years old, at the police station. When shown photographs, Gomez identified Gutierrez, Alfonso Sanchez Minor, Ricardo Malaga Rambo, and Daniel Espinoza Teddy. Gomez said he associated with Lopers gang members and his moniker was Felon. Gomez initially said he was walking down the street when he heard gunshots and saw his friend Malaga and another male lying on the ground with gunshot wounds. He helped put Malaga into a vehicle to be taken to the hospital. But, he then changed his story. Gomez said he was walking down the street with Malaga, Espinoza, and another person, when Candelo walked by them. Gomez knew Espinoza was armed with a gun. They followed and hit up (asked what gang he belonged to) Candelo. Candelo responded, Perros. Candelo walked away from them, and they followed him. Gomez followed Candelo because he was going to back up his friends. Gomezs group confronted Candelo, and Espinoza pulled out a gun and pointed it at Candelo. Candelo slapped Espinozas hand, which caused the gun to fire and shoot Malaga in the foot. Espinoza raised the gun and shot Candelo two or three times.[1] Candelo ran, staggered, and crossed the street. Gomez helped Malaga down the street and helped him get into a vehicle, where he was taken to a hospital. Gomez said he was going to back up his friends and did not think Espinoza was going to shoot Candelo. When they stopped in the middle of the street, Gomez thought Espinoza was going to shoot him.

An information charged Gomez with murder (Pen. Code,  187, subd. (a))[2] (count 1) and street terrorism ( 186.22, subd. (a)) (count 2). The information alleged

Gomez was a gang member who vicariously discharged a firearm causing death

( 12022.53, subds. (d), & (e)(1)), and he committed the murder for the benefit of a criminal street gang.

At trial, the district attorney offered the testimony of Officer Richard Ashby, a gang expert. After detailing his training and experience, Ashby explained the meaning of various gang-related terms. He stated, [c]laiming is a term that gang members use for claiming membership in a gang or claiming a neighborhood. A gang gun is a gun that belongs to the gang and is available to any gang member. Gang members typically know who has the gun. A hit up is when a gang member asks another gang member what neighborhood he is from and the gang member responds by identifying where he is from. Ashby said a hit up usually results in a violent confrontation. He also explained gang members are more likely to hit up someone in their own neighborhood because gang members view themselves as protectors of their neighborhood.

Ashby stated respect plays a very important role in gangs. He explained criminal street gangs and gang members earn respect through fear and intimidation. Gangs instill fear and intimidation in their neighborhoods and gang members instill fear and intimidation in fellow gang members, rivals, and community members. When a rival gang member goes into another gangs territory, it is viewed as a sign of disrespect and typically there will be a violent confrontation. Retaliation of equal or greater measure is required or the disrespected gang member will lose respect within the gang community and his own gang. Gang members know who their rival gangs are.

Ashby stated he had extensive experience investigating Lopershe investigated numerous gang-related crimes, wrote search warrants, and conducted numerous probation searches. Lopers are a large, territorial, traditional Hispanic street gang with numerous factions in the City of Santa Ana. Their territory is Fifth Street in the north and Edinger Avenue in the south. Lopers began in the late 1970s and had approximately 20 members at the time of trial. Their moniker is LPS, and their colors were black and gray. Lopers was a criminal street gang that committed assaults with a firearm and auto thefts.

Ashby opined that based on police reports, field identification cards, gang notices, and Gomezs admission of his involvement in the incident, Gomez was a

self-admitted member of Lopers at the time of the incident. He also opined Sanchez, Malaga, Gutierrez, and Espinoza were members of Lopers on the date of the incident. Ashby stated Candelo was a member of the Dogs criminal street gang, his moniker was Joker, and he had various gang-related tattoos. He opined the shooting was committed in Lopers claimed territory.

Based on a hypothetical mirroring the facts of this case, Ashby opined the murder of Candelo benefited Lopers. He also opined the murder was committed in association with the Lopers criminal street gang[.]

Gomez testified in his own defense.He said that at the time of the shooting, he was 14 years old and a member of Lopers with the moniker Felon.Gomez said he was with four of his homeboys when the saw Candelo with a tattoo on the back of his head walk through Lopers territory. They follow[ed] him to hit him up. Candelo shouted he was from the Dogs gang[]and moved his hands in a confrontational manner. They yelled the name of their gang. Candelo started throwing punches, and he threw Malaga to the ground. One of Gomezs homeboys yelled, I think he has a strap[]a gun. One of Gomezs homeboys pulled out a gun, Candelo slapped his hand, the gun fired and hit Malaga, and his homeboy shot Gomez.

On cross-examination, Gomez testified he was with Malaga, Espinoza, Sanchez, and Gutierrez when they first saw Candelo. They had never seen him before, and he looked like a gang member. He admitted that if a gang member hits up another gang member, there was going to be a fight. He said they did not want a rival gang member in their territory, and he had to back up his fellow gang members. Gomez said it was disrespectful for a rival gang member to be in their territory. Gomez explained that after they followed Candelo for a couple blocks, he turned around, and they hit him up. Candelo yelled, Perros[,] and they yelled, Lopers. Gomez did not see a gun in Candelos hand. When Candelo slapped the gun, it shot one of his homeboys in the leg, and then Candelo got shot. Gomez admitted he knew Espinoza had a gun before they confronted Candelo. Gomez said he told the police Espinoza was holding the gun when Candelo slapped his hand. On redirect examination, Gomez said he realized someone would shoot Candelo when Candelo started throwing punches.

The jury convicted Gomez of count 1 (second degree murder) and count 2 and found true both enhancements. The trial court sentenced Gomez to a total state prison term of 40 years: 15 years to life on count 1, a concurrent two year term on count 2, and 25 years to life on the firearm enhancement; the court struck the punishment on the street terrorism enhancement as required by section 12022.53, subdivision (e)(1).

DISCUSSION

I. Aider and Abettor

Gomez argues the trial court erroneously failed to instruct the jury that an aider and abettor could be guilty of a lesser crime than the perpetrator or other aiders and abettors. He also contends, the jury was not informed that it could find [him] guilty of any lesser crimes than those charged. Neither of his contentions have merit.

Preliminarily, the Attorney General argues Gomez forfeited appellate review of his claims because he did not object to the jury instructions at trial. Gomez concedes he did not object to Judicial Council of California Criminal Jury Instructions (2007) CALCRIM Nos. 400, 401, or 403, but contends he has not waived appellate review of this issue because the instructions affected his substantial rights. ( 1259.) We agree with Gomez and will address the merits of his claim. (People v. Flood (1998)

18 Cal.4th 470, 479-482, fn. 7.)

Gomez is correct the trial courts duty to instruct the jury sua sponte on all material issues presented by the evidence extends to . . . lesser included offenses[.] (People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman).) We also agree an aider and abettor may be convicted of a lesser crime than the principal (People v. Woods (1992) 8 Cal.App.4th 1570, 1577 (Woods)), or of a greater crime than the principal (People v. McCoy (2001) 25 Cal.4th 1111, 1120-1121 (McCoy)). The issue here is whether the trial court had a sua sponte duty to instruct the jury an aider and abettor may be convicted of a lesser offense than the principal or of other aiders and abettors. In making our determination, we consider the entire charge to the jury. (People v. Holt (1997) 15 Cal.4th 619, 677.)

The trial court instructed the jury on aiding and abetting and the natural and probable consequences doctrine as follows. CALCRIM No. 400, Aiding and Abetting: General Principles, stated: A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the perpetrator. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.

CALCRIM No. 401, Aiding and Abetting: Intended Crimes, provided: To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [] 1. The perpetrator committed the crime; [] 2. The defendant knew that the perpetrator intended to commit the crime; [] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; AND [] 4. The defendants words or conduct did in fact aid and abet the perpetrators commission of the crime. [] Someone aids and abets a crime if he or she knows of the perpetrators unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrators commission of that crime. [] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.

CALCRIM No. 403, Natural and Probable Consequences (Only

Non-Target Offense Charged), stated: To prove that the defendant is guilty of murder, voluntary manslaughter, or involuntary manslaughter under the natural and probable consequences doctrine of aiding and abetting law, the People must prove that: []

1. The defendant is guilty of disturbing the peace; [] 2. During the commission of disturbing the peace, the crime of murder, voluntary manslaughter[,] or involuntary manslaughter[,] was committed; [] AND [] 3. Under all of the circumstances, a reasonable person in the defendants position would have known that the commission of the murder, voluntary manslaughter[,] or involuntary manslaughter was a natural and probable consequence of the commission of disturbing the peace. [] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder, voluntary manslaughter[,] or involuntary manslaughter was committed for a reason independent of the common plan to commit disturbing the peace, then the commission of murder, voluntary manslaughter[,] or involuntary manslaughter was not a natural and probable consequence of disturbing the peace. [] To decide whether crime of murder, voluntary manslaughter[,] or involuntary manslaughter was committed, please refer to the separate instructions that I will give you on those crimes. The court instructed the jury on the elements of disturbing the peace. The trial court also instructed the jury on the elements of murder, voluntary manslaughter, and involuntary manslaughter.

We begin by noting the trial court granted Gomezs motion to sever, and therefore, he was not tried with Espinoza, Malaga, or Sanchez. Although the jury had to determine whether Espinoza committed murder, it did not decide his guilt.

Gomez provides no direct authority to support his proposition the trial court must instruct the jury sua sponte an aider and abettor could be guilty of a lesser crime than the perpetrator or the other aiders and abettors. And, the cases he does rely on, McCoy, supra, 25 Cal.4th 1111, and Breverman, supra, 19 Cal.4th 142, do not support his claim. In McCoy, supra, 25 Cal.4th at page 1120, the California Supreme Court held an aider and abettor may be found guilty of a greater offense than the direct perpetrator. In Breverman, supra, 19 Cal.4th at page 157, the California Supreme Court held the trial court must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence.

Although Gomez does not cite to it, People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), suggests the trial court might have such a duty. In Woods, the trial court responded to a jury question by telling the jury an aider and abettor could not be found guilty of second degree murder if it found the direct perpetrator guilty of first degree murder. The court reversed defendants conviction, concluding the trial court should have told the jurors they could convict the aider and abettor of the lesser included offense even if they found the direct perpetrator guilty of first degree murder because second degree murder was a reasonably foreseeable consequence of the armed assaults. (Id. at pp. 1577-1578.)

Assuming Woods is a correct statement of the law, we do not read it to require any type of modification to CALCRIM Nos. 400, 401, or 403. The Woods court did not address the validity of aiding and abetting instructions in conjunction with the instruction on the natural and probable consequences. Rather, the error occurred when the trial court specifically prohibited the jurors from finding the aider and abettor guilty of second degree murder if they found the direct perpetrator guilty of first degree murder. Here, no such error occurred.

In fact, as we explain above, the trial court instructed the jury on aiding and abetting, natural and probable consequences, first degree murder, second degree murder, and voluntary and involuntary manslaughter. CALCRIM No. 403 stated: To prove that the defendant is guilty of murder, voluntary manslaughter, or involuntary manslaughter under the natural and probable consequences doctrine of aiding and abetting law . . . . (Italics added.) CALCRIM No. 500, Homicide: General Principles, stated, Manslaughter is a lesser offense to murder. Additionally, CALCRIM Nos. 570, and 571 state in their titles that voluntary manslaughter is a lesser included offense. And, CALCRIM No. 580 states in its title involuntary manslaughter is a lesser included offense. Finally, CALCRIM No. 640, Procedure for Completion of Verdict Forms: With Stone Instruction, states the district attorney had the burden to prove Gomez committed first degree murder rather than the lesser offense, murder rather than the lesser offense, or murder or voluntary manslaughter rather than the lesser offense. Simply put, had the jury believed the facts supported a conviction of a lesser crime, it had the necessary instructions to render such a verdict. Indeed, the jury convicted Gomez of second degree murder, not first degree murder.

To the extent Gomez argues the district attorneys statement during closing argument that Gomez stood in the same shoes as Espinoza compounded the alleged instructional error, we are not persuaded. As we explain above, CALCRIM Nos. 400, 401, and 403 properly instructed the jury it had to find Gomezs guilt was based on the combined actus reus of the participants and his own mens rea.

Finally, Gomez claims the jurors mistakenly believed they could convict him of murder, voluntary manslaughter, or involuntary manslaughter, or acquit him. He accurately states the options the jury had. If there were other lesser included offenses it was incumbent on Gomez to bring them to the courts attention. The information charged Gomez with murder. When the trial court reviewed the jury instructions with counsel, defense counsel agreed the court should instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. Gomez did not request the court instruct the jury on any other offenses. Therefore, the trial court properly instructed the jury on aiding and abetting under the natural and probable consequences doctrine and the agreed upon offenses supported by the evidence.

II. Expert Testimony

Relying on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), and People v. Torres (1995) 33 Cal.App.4th 37 (Torres), Gomez contends the trial court erroneously allowed Ashby, the gang expert, to testify concerning an ultimate issue in the casewhether the shooting was committed for the benefit of a criminal street gang. We disagree.

An expert witness is a person who has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject of his or her testimony. (Evid. Code,  720, subd. (a).) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the jury. (Evid. Code,  801, subd. (a).) The opinion testimony must [b]e based on matter . . . perceived by or personally known . . . or made known to the witness before or at the hearing and is of a type that reasonably may be relied upon . . . in forming an opinion upon the subject of his or her testimony. (Evid. Code,  801,

subd. (b).) It is well established, [t]he subject matter of the culture and habits of criminal street gangs[] is the proper subject of expert testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)

Expert testimony is admissible even though it encompasses the ultimate issue in the case. (Evid. Code,  805; Killebrew, supra, 103 Cal.App.4th at p. 651.) This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.] Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided . . . . [Citation.] (Ibid.) There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved[.] (Id.at

pp. 651-652.)

As a general rule, a trial court has wide discretion to admit or exclude expert testimony. An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.] (People v. Valdez (1997)

58 Cal.App.4th 494, 506, citations omitted.)

Here, defense counsel while in chambers objected to the district attorney asking Ashby improper hypothetical questions concerning ultimate issues in the case. The trial court overruled the objection and explained it is well settled an expert witness may be asked a hypothetical question rooted in the facts of the case.

In the presence of the jury, the following colloquy occurred:

[District attorney]: [Ashby], Im going to give you a hypothetical, all right. [] You have five people. All five are active participants of Lopers criminal street gang. Theyre hanging out in Lopers gang territory. One [of] them has a loaded gun. They see a male Hispanic walking through their territory who has a shaved head and has P.R.S. tattooed on the back of his head. [] The group of five Lopers approach the male and hit him up. The lone male replies Perros to the hit-up. The group of five Lopers continue to follow the lone male up the street, at which point --

[Defense counsel]: Your honor, Im going to object. Theres no evidence that they followed him.

[Trial court]: Overruled.

[Defense counsel]: Thank you.

[District attorney]: Q at which point an altercation takes place. [] During this altercation, one of the Lopers gang members points the weapon at the Perros gang member. The Perros gang member slaps at the gun, which results in the Lopers gang member shooting accidentally his fellow Lopers gang member. After doing that, he again raises the gun and fires at the Perros gang member at least two more times, ultimately killing him. All five Lopers then flee the scene. [] Based on that hypothetical, does the crime -- does the crime that was committed, the crime of murder, benefit the Lopers gang?

[Ashby]: Yes.

Ashby went on to explain how the murder benefited the Lopers. The following colloquy then occurred:

[District attorney]: Using the same facts of that same hypothetical, do you have an opinion as to whether or not that particular crime was committed in association with the Lopers criminal street gang?

[Ashby]: Yes. Ashby explained how the murder was committed in association with and promoted Lopers.

In response to a hypothetical question mirroring the facts of this case, Ashby testified the shooting was done for the benefit of Lopers, in association with Lopers, and to promote Lopers. This testimony was admissible even though it encompassed an ultimate issue in the case. (Killebrew, supra, 103 Cal.App.4th at

pp. 651, 657-658; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1125.) Ashby did not testify as to how he thought the case should be decided, whether Gomez had specific knowledge or possessed a specific intent, or whether he thought Gomez was guilty. His testimony provided evidence for the jury to determine whether Gomez aided and abetted the murder for the benefit of Lopers. The jury was free to reject his testimony.

To the extent Gomez argues the trial court should have excluded Ashbys testimony pursuant to Evidence Code section 352 because its probative value was outweighed by its prejudicial effect or it was cumulative, we again are not persuaded. First, it does not appear Gomez objected to the testimony on this ground. He argued the district attorneys hypothetical questions were improper as they concerned an ultimate issue in the case and were not supported by the evidence. Second, as we explain above, an expert witness may testify concerning gang culture and habits. (Gardeley, supra,

14 Cal.4th at p. 617.) Ashbys testimony was not unduly prejudicial or cumulative to other testimony.

Finally, Gomezs reliance on Killebrew, supra, 103 Cal.App.4th 644, and Torres, supra, 33 Cal.App.4th 37, is misplaced. In Killebrew, supra, 103 Cal.App.4th at page 652, the gang expert testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Fn. omitted.) The court opined an expert may not testify a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) In Torres, supra,

33 Cal.App.4th at pages 45-48, the expert defined the robbery and extortion and opined defendant committed robberies. The court concluded that was impermissible expert testimony because the expert essentially opined defendant was guilty of robbery and first degree felony murder. As we explain above, Ashby did not testify as to Gomezs intent or guilt. Thus, the trial court properly allowed Ashbys expert testimony on the culture and habits of criminal street gangs.

III. Cruel and Unusual Punishment

Gomez raises both an as applied challenge to his 25-year-to-life sentence for vicariously discharging a firearm causing death in violation of section 12022.53,

subdivisions (d), and (e)(1), pursuant to the federal[3] and California[4] Constitutions prohibitions on cruel and unusual punishment and a facial challenge based on the California Constitution. None of his contentions have merit.

Recognizing Gomez objected to his sentence on state constitutional grounds, the Attorney General contends Gomez waived appellate review of the other two claims because he did not object on these grounds below. We agree, but we will address his contention on the merits in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim. (People v. Norman (2003) 109 Cal.App.4th 221,

229-230.)

Section 12022.53, subdivision (d), states: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in

subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

A. Federal Constitution

Eighth Amendment analysis requires a finding of gross disproportionality between the offense and the offender and the punishment. (United States v. Bajakajian (1998) 524 U.S. 321, 327-334; People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38 (Dillon); People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.) In Harmelin v. Michigan (1991) 501 U.S. 957, 994-996, 1002-1004, the United States Supreme Court concluded life without parole not to be disproportionate for possession of a large quantity of drugs. In Rummel v. Estelle (1980) 445 U.S. 263, 265-266, a life sentence for a nonviolent recidivist was upheld. (See People v. Riva (2003) 112 Cal.App.4th 981, 986 (Riva) [30 years to life is not cruel and unusual punishment for . . . shooting at an occupied vehicle and causing great bodily harm].)

Because a sentence of life without parole is not cruel and unusual punishment for certain nonviolent offenses, then Gomezs sentence of 40 years to life, including the 25-years-to-life consecutive sentence for the firearm enhancement, is not cruel and unusual punishment for second degree murder and vicariously discharging a firearm causing death.

B. State Constitution

A punishment also may violate the California Constitution 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. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) Lynch suggests three areas of focus: (1) the nature of the offense and the offender; (2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.) Disproportionality need not be established in all three areas. (Dillon, supra, 34 Cal.3d at p. 487, fn. 38.) Gomez focuses on the first Lynch element, and we will limit our discussion accordingly.

Here, in assessing the nature of the offense and the offender, we look to Gomezs individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Dillon, supra, 34 Cal.3d at p. 479.) Gomez was convicted of second degree murder. Although he did not fire the gun, he acted as a back up with his fellow Lopers gang members to confront another gang member, Candelo, who was in Lopers claimed territory. Gomez knew the confrontation could end in violence. He also knew Espinoza had a gun and he previously told officers he knew Espinoza was going to shoot him.

As to Gomezs individual culpability, we acknowledge he was 14 years old when he committed the offenses. But, it cannot be ignored Gomez was an active member of Lopers, a criminal street gang that habitually committed violent offenses. And, he had prior juvenile adjudications for battery ( 242) and being a minor in possession of a firearm ( 12101, subd. (a)(1)). Gomez, relying on friends statements, claims he was a good student, but school records indicate otherwise. He was performing below average, and was a discipline problem, who was extremely disruptive, defiant, and aggressive. Based on the seriousness of the offense and Gomezs individual culpability, we cannot conclude Gomezs age rendered his punishment grossly disproportionate.

Finally, as to Gomezs claim section 12022.53, subdivisions (d), and (e)(1), are facially unconstitutional pursuant to the California Constitution, we are not persuaded. Courts have uniformly upheld the firearm enhancements under section 12022.53 when attacked as imposing cruel and/or unusual punishment. (See, e.g., Riva, supra, 112 Cal.App.4th at p. 1003 [25-year-to-life term for the section 12022.53, subdivision (d), enhancement not unconstitutional, facially or as applied, under either California or federal Constitutions]; People v. Zepeda (2001) 87 Cal.App.4th 1183,

1212-1216 [same]; People v. Martinez (1999) 76 Cal.App.4th 489, 493-498 [same].) Gomez offers no authority, and we found none, to support the contention vicarious liability pursuant to section 12022.53, subdivision (e)(1),[5] somehow renders the statute unconstitutional. (People v. Garcia (2002) 28 Cal.4th 1166, 1176 [in enacting section 12022.53, subdivision (e)(1), Legislature recognized serious threats posed by gang members using firearms]; see People v. Hernandez (2005) 134 Cal.App.4th 474, 483 [section 12022.53, subdivisions (d), and (e)(1), upheld against equal protection/due process challenges].) Therefore, the trial court properly sentenced Gomez to a consecutive 25-year-to-life term for vicariously discharging a firearm causing death in violation of section 12022.53, subdivisions (d), and (e)(1).

DISPOSITION

The judgment is affirmed.

OLEARY, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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[1] A videotape of the interview was played for and transcript of the videotape was provided to the jury.

[2] All further statutory references are to the Penal Code, unless otherwise indicated.

[3] The Eight Amendment to the United States Constitution.

[4] Article I, section 17 of the California Constitution.

[5] Section 12022.53, subdivision (e)(1), provides: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A) The person violated subdivision (b) of [s]ection 186.22. [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).