P. v. Salinas

Filed 8/22/07 P. v. Salinas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick N. Wapner, Judge. Affirmed.

Jonathan P. Milberg, 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, Lance E. Winters Tasha G. Timbadia and Collen Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Luis Miguel Salinas appeals from a judgment entered upon his conviction by jury of attempted murder (Pen. Code, 664/187, subd. (a)).^[1] The jury also found to be true the firearm use allegations within the meaning of section 12022.53, subdivisions (b) through (d) and the allegation that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The trial court sentenced appellant to the upper term of nine years in prison for the attempted murder conviction, plus 10 years for the gang enhancement and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). Appellant contends that (1) the trial court prejudicially erred and deprived him of due process by instructing the jury that he could be guilty of attempted murder on an aiding and abetting theory, and (2) the sentence of 25 years to life authorized by section 12022.53 is unconstitutional as a cruel and unusual punishment.

We affirm.

FACTUAL BACKGROUND

The prosecutions evidence

On January 29, 2005, at approximately 3:00 a.m., William Tovar (Tovar) was outside his home at 420 South Witmer Street, helping a friend, Angel Ramos (Ramos), park Ramoss truck, when they were approached by two men. According to Tovar, one of the men asked, Where you from, gang terminology asking with which gang was he affiliated. Tovar responded, Mara Salva Trucha. The questioner then said, Fuck Mara, pulled a gun and shot Tovar,^[2]who suffered two serious gunshot wounds but managed to drive away.

At the time of the shooting, Los Angeles Police Officer Miguel Dominguez was nearby with his partner, Officer Cisco, and two other officers, Officer Richard Platzer and his partner, Officer Abner. They heard two gunshots, entered their patrol cars and drove to where they thought the shots had been fired.Forty to 45 seconds later, Officer Dominguez spotted a dark brown Cadillac being driven by appellant with its lights off. Officer Dominguez did not see any other vehicles moving or pedestrians on the street.

The Cadillac pulled over, and appellant turned to look at the officers and then drove away slowly. He accelerated, commencing a high-speed pursuit during which he ignored the patrol cars red light and siren. He drove through residential neighborhoods at speeds up to 60 miles per hour, running numerous stop signs and a couple of red lights, finally losing control of his car and crashing into a light pole. The officers ordered appellant and the other occupant, Hector Cuellar (Cuellar), to put their hands out of the window and not to move.^[3] Cuellar complied. Appellant exited the car and began removing his clothing. He was told to put his hands in the air and turn around, but did not comply. He yelled, Fuck you. Fuck you dog and took a combative position. The officers had to forcibly take him into custody.

Officers Platzer and Abner, driving their patrol car, spotted Tovar in a white truck, stopped him and helped him out of the truck. The officers found a bullet fragment on the floor board of the truck and a spent round in the door panel. When paramedics arrived, they placed Tovar on a gurney and into the back of the ambulance.

After Tovar was read a field admonition, appellant was brought to where the ambulance was located and shown to Tovar. Tovar immediately identified appellant, stating, [T]hats him, thats him. Thats the motherfucker that shot me. When the identification was made, Tovar was sitting upright on the gurney inside the ambulance, 20 feet from appellant. The area was well lit, and the officers were shining their flashlights on appellant. But Tovar failed to identify appellant at a live lineup two months later or in court. At trial, he denied being shown anyone when he was in the ambulance, denied identifying appellant, and denied making the statement about appellant that was attributed to him. He also denied telling police officers the day after the shooting, at the hospital, Hey, I already identified the guy, I dont want to be involved in this anymore. I already identified the guy who shot me when I was in the back of the ambulance.

Investigating Detective Danny Arrona spoke with Tovar at the hospital two days after the shooting. Tovar told him that he had identified the suspect in the ambulance and did not want anything more to do with the case. On February 9, 2005, Detective Arrona had another conversation with Tovar in which Tovar provided him with a clothing description of his attackers that Tovar had received from Ramos. He also reported an incident where gang members came to the front of his residence and were pointing at his apartment, saying, Thats where he lives, and talking about breaking down the door.

Officer James Muniz and his partner, Officer Kristine Shanahan, searched the Cadillac appellant was driving. They found numerous loose bullets strewn about the trunk and the interior of the car and two boxes of Remington .44 magnum bullets. This ammunition was consistent with a shell casing found at the crime scene and one of the bullet fragments found in the truck Tovar was driving. Criminalists determined from the casing and bullet fragments that one of the fragments was from a .44-caliber bullet fired from a semiautomatic weapon and the other was from a .38-caliber bullet fired from a revolver. It therefore appeared that Tovar was shot with two different weapons. The shell casing was for the same caliber gun, and made by the same manufacturer, as the bullets in the ammunition boxes found in appellants car. No gun was ever recovered.

Officer Todd Turner, a gang expert, testified that appellant was an admitted member of the Rockwood gang and Tovar, of the rival Mara Salva Trucha gang. Tovar lived and was shot in Rockwood gang territory. The Rockwood gang extorted vendors and apartment owners in its territory, uttered threats and committed homicides and other violent crimes, including violent assaults against rival gang members found in its territory. Officer Turner testified that it is important for gangs to protect their territory in order to avoid showing weakness, and that he would expect a confrontation if a rival gang member was found in Rockwood gang territory.

Officer Turner further testified that in gang culture the worst thing you can be is a snitch. A snitch is subject to acts of violence and, if in prison, a green light is given to the Mexican Mafia to take you out.

Shortly before trial, another deputy district attorney was present at a conversation between Tovar and the trial prosecutor. The deputy district attorney heard Tovar say that he had been approached by Rockwood gang members on two occasions while he was incarcerated on an unrelated matter. The first time, he was asked if he was the victim of the shooting of which appellant was accused. On the second occasion, Tovar received a written message delivered to his cell from appellant. Tovar said that he could never identify appellant in court because he would be labeled a snitch, and his life would be in danger.

The defenses evidence

Ramos testified that on the night of the shooting, Tovar was helping to park Ramoss car. Ramos was standing in the middle of the street, outside his truck, telling Tovar how to park. He saw two men approach, and Tovar was shot. He could not see who shot Tovar because it was very dark. He did not hear anyone say anything to Tovar. Ramos took off running home. He was unable to identify the perpetrators from a photographic six-pack.

Criminalist Kevin Holloman analyzed particles taken from appellant and Cuellars hands. He was unable to detect gunshot residue on either man, but gunshot residue is detected only 5 to 10 percent of the time.

DISCUSSION

I. The trial court committed harmless error in instructing on aiding and abetting.

The trial court instructed the jury without objection on attempted murder as a direct perpetrator and as an aider and abettor in accordance with CALCRIM Nos. 400 and 401. During closing, the thrust of the prosecutors argument was that appellant personally shot Tovar. However, he added, And so either way, if you look at this, if any of you have some thoughts in your mind, maybe it wasnt the defendant who shot, maybe it was Mr. Cuellar, maybe hes really the one, well, we know that they both shot. And even if you thought for a second, well, were not sure about that, well, the defendant was the one driving the car, [it] makes him an aider and abettor. As you heard the instructions, aid, encourage, facilitate, hes the getaway driver. So even at that, even if you get to that point, the defendant is guilty in this crime.

Appellant contends that the trial court erred in instructing the jury on aiding and abetting in accordance with CALCRIM Nos. 400 and 401, thereby depriving him of due process. He argues that the prosecutions theory in this matter was that appellant shot Tovar and that there was never anytestimony offered by either the prosecution or the defense that either . . . Cuellar or some other member of the Rockwood gang was the actual shooter whereas [appellant] was merely an accomplice or aider and abettor. Consequently, he asserts, it was error to instruct on a theory for which there was no evidence and which was not the theory of the case. We agree that it was error to instruct the jury on aiding and abetting, but find that error to have been nonprejudicial.

In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The trial court is charged with instructing upon every theory of the case supported by substantial evidence . . . . (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Substantial evidence is evidence that is reasonable, credible and of solid value. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1165; People v Crew (2003) 31 Cal.4th 822, 835.) The trial court has the correlative duty to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is error to give an instruction that correctly states a principle of law that is inapplicable to the facts of the case. (People v. Eggers (1947) 30 Cal.2d 676, 687; People v. Anderson (1965) 63 Cal.2d 351, 360.)

Section 31 provides that [a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed. A person aids and abets in the commission of a crime if he or she act[s] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.)

Here, there was no reasonable, credible and solid evidence that appellant was an aider and abettor. At the scene of the shooting, Tovar identified appellant as the shooter, stating immediately upon seeing him, [T]hats him, thats him. Thats the motherfucker that shot me. While at trial he denied making that identification, there was substantial evidence that he had received threats by rival gang members that there would be dire consequences if he testified against appellant. Forensic evidence also supported that appellant was a shooter, as it suggested that the two shots fired came from different guns, most likely indicating that each of the two attackers was a shooter, although leaving open the unlikely possibility that one shooter carried and shot two guns almost simultaneously. There was no evidence that only Cuellar did the shooting.

While there was evidence from which one could arguably draw the inference that appellant was not the shooter, we find that evidence to be insufficient. Tovar testified that two men approached him and the man who questioned him shot him. At trial, he did not identify which of the two men did the questioning or the shooting, leaving open the possibility that it was not appellant. While the officer to whom Tovar reported the incident understood Tovar to suggest that both shots were fired by the same person, there was no evidence that Tovar said that. Tovar did not testify that only one person shot him, but merely that he saw the person who questioned him shoot him. He did not testify that both of the bullets came from the same gun or that appellant did not do the shooting. In short, there was no credible evidence that appellant was not, at least, one of the shooters. Hence, there was insufficient evidence to justify the aiding and abetting theory.^[4]

The error in instructing on aiding and abetting was harmless even under the stringent beyond-a-reasonable-doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.) When it is impossible to determine whether a verdict was reached based on admissible evidence submitted under proper instructions or on an erroneous determination of questions improperly submitted to the jury, reversal is required. (People v. Houts (1978) 86 Cal.App.3d 1012, 1019; see also People v. Robinson (1964) 61 Cal.2d 373, 406 [where it cannot be determined if the jury reached its verdict in reliance on admissible or inadmissible evidence improperly received it must find the error prejudicial].) But [i]f on the record it appears beyond a reasonable doubt that the jury based its verdict on the theory supported by admissible evidence submitted under correct instructions--there is no miscarriage of justice and the judgment must be affirmed. (People v. Houts, supra, 86 Cal.App.3d at p. 1019; People v. Cantrell (1973) 8 Cal.3d 672, 686, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12; People v. Wetmore (1978) 22 Cal.3d 318, 325, fn. 5.)^[5]

Here, CALCRIM No. 3149 instructed the jury on the firearm enhancement in section 12022.53, subdivision (d), in part, as follows, If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing (great bodily injury). [] To prove this allegation, the People must prove that: [] 1. The defendant personally discharged a firearm during the commission of that crime; [] 2. The defendant intended to discharge the firearm; AND [] 3. The defendants act caused (great bodily injury to) a person who was not an accomplice to the crime. (Italics added.)

The jury verdict stated: We further find the special allegation that said defendant, LUIS MIGUEL SALINAS, personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury to WILLIAM TOVAR within the meaning of Penal Code section 12022.53(d) to be true. (Italics added.) The jury could not have made this finding without concluding that appellant was the shooter and not merely an aider and abettor. Consequently, the record makes clear that the jury did not rely on the aiding and abetting instructions in reaching its verdict.

II. Section 12022.53, subdivision (d) is not cruel and unusual punishment.

Appellant was convicted of attempted murder. The jury also found the gang enhancement and the firearm use enhancements under section 12022.53, subdivisions (b) through (d) to be true. The trial court sentenced appellant to an upper term of nine years in prison on his attempted murder conviction, plus 10 years for the gang enhancement and 25 years to life for the firearm discharge enhancement under section 12022.53, subdivision (d).

Appellant contends that the firearm enhancement of 25 years to life under section 12022.53, subdivision (d) is cruel and unusual punishment, violating the state and federal Constitutions. He argues that it is disproportionate to the one additional year given to offenders who use other deadly weapons and to the shorter firearm enhancements imposed in virtually every other state. Consequently, he asserts, at the very least, the sentence should be reduced and modified. The People contend that appellant waived this claim.^[6]We agree with the People that the claim has been forfeited, and in any event we find it to be without merit.

The California Supreme Court has repeatedly held that constitutional objections, like other objections, must be raised in the trial court in order to preserve them for appeal. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250 [forfeiture of First, Eighth and Fourteenth Amendment rights]; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10 [forfeiture of rights under Fifth, Eighth and Fourteenth Amendments, respectively, self-incrimination, cruel and unusual punishment, and due process claims]; see also People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [forfeiture of claim of cruel and unusual punishment].)

Even if this claim had not been forfeited, we would reject it. [I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments . . . . (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. (Id. at p. 423.) Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. (Solem v. Helm (1983) 463 U.S. 277, 290, fn. omitted; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214 [rejecting cruel and unusual punishment challenge to  12022.53, subd. (d)]; see also Lynch, supra, 8 Cal.3d at p. 414.) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).)

Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. [Citation.] (People v. Ingram (1995) 40 Cal.App.4th 1397, 1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547.) Similarly, under the federal Constitution punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendments prohibition against cruel and unusual punishment if it is grossly out of proportion to the severity of [his] crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173; Harmelin v. Michigan (1991) 501 U.S. 957.)

Lynch articulates the relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution. Itrequires consideration of the nature of the offender and the offense (Lynch, supra, 8 Cal.3d at p. 425), comparison of the punishment with the penalty for more serious crimes in the same jurisdiction (id. at p. 426), and comparison of the punishment to the penalty for the same offense in different jurisdictions (id. at p. 427).

We do not find appellants challenge to section 12022.53, subdivision (d) to be one of those rare cases in which the Legislature has overstepped its bounds and imposed a penalty that is cruel and unusual. Appellant does not, and cannot, argue that the sentence imposed on him is disproportionate to the heinousness of his crime. He approached a vehicle in which Tovar was seated and at point-blank range shot him simply because he was a rival gang member in appellants gang territory.

Instead, appellant argues that imposition of the firearm enhancement of 25 years to life was disproportionate to the punishments he would receive for using other weapons in a killing. Our colleagues in Division Four rejected a similar claim in Martinez, supra, 76 Cal.App.4th 489. The defendant in that case argued that the punishment for firearm use under section 12022.53 was disproportionate in comparison to the punishment for use of a knife under sections 12022, subdivision (b) and 12022.7, subdivision (a). (Martinez, supra, at p. 497.) The Court of Appeal explained: [T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime. The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.] (Martinez, supra, at pp. 497-498.) A firearm gives a perpetrator a strong advantage over the victim and effectively deters the victims escape. A firearm is particularly lethal to the victim of the underlying crime as well as others in the vicinity; and a firearm allows the perpetrator to effortlessly and instantaneously execute an intent to kill once it is formed. (People v. Zepeda, supra, 87 Cal.App.4th at p. 1215; see also People v. Aguilar (1973) 32 Cal.App.3d 478, 486.)

We agree with Martinez that the legislative determination regarding firearm use is reasonable, as the decision to use a gun is an appropriate factor in substantially increasing the length of a sentence.

Appellant also argues that the firearm enhancement of 25 years to life in section 12022.53 is disproportionate to the enhancements meted out in other jurisdictions. He includes as an appendix to his opening brief a survey of the gun use enhancements in the other states. We have reviewed appellants list and find that a straight comparison of the number of years imposed by California for firearm use and that imposed by other states is like comparing apples and oranges. California employs a graduated scheme of punishment based upon the extent of the gun use in the commission of the crime; consisting of 10 years for using a gun, 20 years for discharging it and 25 years to life for discharging it and causing death or great bodily injury. ( 12022.53, subds. (b), (c) & (d), respectively.) Some other states with lower sentences impose the lower sentence regardless of the extent of the gun use and do not appear to have a graduated gun-use penalty. (i.e., Okl. Stat., Ch. 21,  1287 [punishes possession of gun during commission of a felony]; S. Car., Code, tit. 16,  16-23-490 [punishes carrying or displaying a gun]; Vt. Stat. tit. 13, 4005 [carrying deadly or dangerous weapon].)

Oklahoma is illustrative of how the many different variables in assessing the severity of a punishment make comparison difficult. Oklahoma makes possession of a gun during the commission of a felony a separate felony from the underlying offense, subject to a penalty of two to 10 years for the first gun possession offense and 10 to 30 years for any subsequent gun possession offenses. (Okl. Stat., ch. 21, 1287.) The punishment appears to be the same whether the gun is carried, discharged or discharged and kills or seriously injures someone. Its sentence of two to 10 years for mere possession is comparable to Californias 10-year sentence for using a gun without discharging it. Further, its sentence of 10 to 30 years for subsequent convictions of possessing a gun during a felony is potentially greater than Californias penalty of 25 years to life for discharging a gun and killing someone.

Moreover, to the extent that Californias punishment may be viewed as greater than all other states, it need not tailor its sentencing to be in lockstep with other jurisdictions. There will always be one state with a sentence greater than the rest. That fact alone does not render the punishment disproportionate and cruel and unusual.

Our review also convinces us that Californias firearm enhancement under section 12022.53, subdivision (d) is not substantially greater than many other jurisdictions, some of which provide the trial court with discretion to impose a sentence greater than that imposed in California for gun use. For example, Nebraska provides that the use of a firearm to commit any felony is an additional offense punishable between one and 50 years in prison. (Neb. Stats. 28-1205(1), 28-1205(2)(b) & 28-105(1).)

Finally, there is nothing before us to indicate whether the severity of the gun-use problem in California is comparable to that in other states. The greater the severity of the problem, the greater is the justification for a lengthier punishment.

For the foregoing reasons, we conclude that section 12022.53, subdivision (d) does not violate the cruel and unusual punishment clause. This conclusion is consistent with other appellate courts that have considered the question. (See Martinez, supra, 76 Cal.App.4th at p. 489; People v. Zepeda, supra, 87 Cal.App.4th 1183; People v. Gonzales (2001) 87 Cal.App.4th 1, 16.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, P. J.

BOREN We concur:

______________________, J. _______________________, J.

ASHMANN-GERST CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] At no time during his testimony did Tovar identify who questioned and shot him.

^[3] Cuellar is not a party to this appeal.

^[4] Given this conclusion, we need not decide if aiding and abetting was a theory of the prosecutions case.

^[5]People v. Guiton (1993) 4 Cal.4th 1116, 1129, indicates that a less stringent standard of review than articulated in these cases may be applicable. It states: If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. Because we conclude that there was no prejudice under even the more stringent standard, we need not decide which standard applies.

^[6] While the People use the term waiver in reference to defendants failure to preserve this claim for appeal because he did not raise the question in the court below, the correct term which we use in this opinion is forfeiture. Waiver is the express relinquishment of a known right whereas forfeiture is the failure to object or to invoke a right. (In re Sheena K. (2007)40 Cal.4th 875, 880, fn. 1.)