P. v. Banich

Filed 3/11/10 P. v. Banich CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John David Lord, Judge. Affirmed.

Janice Wellborn, 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, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Rocco Banich, appeals the judgment entered following his conviction, by jury trial, for attempted premeditated murder of a police officer, attempted voluntary manslaughter (2 counts), shooting at an unoccupied vehicle, and shooting at an occupied building, with firearm use enhancements (Pen. Code,  664/187, 664/192, 247, 246, 12022.53).[1] He was sentenced to state prison for a term of 55 years and 10 months to life.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

On August 30, 2007, Marilyn Keller was working at the Til 2 Club, a bar located behind defendant Banichs home in Long Beach. As Keller and a customer, Richard Blake, walked through the kitchen toward the back door, they heard gunshots. Keller opened the back door and saw Banich standing in his backyard firing a rifle at the bar. Keller went inside and called 911.

Officers from the Long Beach Police Department responded to Kellers 911 call. They arrived at Banichs house just after 6:00 p.m. and ordered him to come outside. Banich ignored the officers. The Long Beach SWAT team was called in and they fired tear gas canisters into Banichs house.

Around 11:00 p.m., Banich emerged from his house with a rifle and fired several shots at Officer Greg Woodruff and two other SWAT team members, Carlos Nava and Jesus Fragoso. One bullet hit Woodruff in the shoulder, but he was protected by body armor. Nava and Fragoso were not hit, but bullets landed near them. Banich was ultimately shot by an officer and taken into custody.

A .22-caliber rifle was recovered from the ground outside Banichs house and ten .22-caliber shell casings were found in his backyard. All the casings came from Banichs gun, which could hold up to 15 bullets. There were seven bullets in the rifle when it was recovered, which meant Banich had reloaded his gun at some point.

Banich had an ongoing conflict with the Til 2 Club. He would walk through the bars parking lot and write down the license plate numbers of the customers cars. He took photographs of people at the bar and threatened them. He threatened to kill one of the bars owners. Banich had left flyers on Blakes truck referring to him as a narc, a cop, and a drug dealer. Banich had recorded a song which included the lyric, And Rick the narc, 6R9506. Blake testified 6R9506 was the license number of his truck. On the night of the shooting, Blakes truck was parked directly across from the back door of the Til 2 Club.

Banich also had a history of conflict with the Long Beach Police Department. A CD he had recorded included a song entitled Open Season, which contained references to pizza narc from the Til 2, and ruin their cars in the lot, paint the building red hot. The same song contained the line, Open season is the reason to come to Long Beach and to kill some narcs.

About a week before the shooting, Banich left threatening phone messages[2] for Vasant Sharma, a Long Beach building inspector and code enforcement officer. In response to a complaint about trash and debris on Banichs property, Sharma had issued him a citation in 2005. Sharma contacted the police, and an officer called Banich and told him to stop making abusive calls to the code enforcement office. Banich cursed at the officer and dared her to come arrest him.

Banich, who represented himself at trial, did not put on any defense evidence.

CONTENTION

Banichs sentence must be reversed because it constitutes cruel and unusual punishment.

DISCUSSION

Banich contends his sentence, 55 years 10 months to life, constitutes cruel and unusual punishment in violation of both the federal and state Constitutions. This claim is meritless.

A punishment is excessive under the Eighth Amendment if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173 [96 S.Ct. 2909, 2925 . . . ].) A punishment may violate article I, section 17 of 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.) [] In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291 [103 S.Ct. 3001, 3009-3010 . . . ]; In re Lynch, supra, 8 Cal.3d at pp. 425-427.) (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.)

Banich claims his sentence is disproportionate to the nature of his crimes and the degree of his culpability. Neither claim is sustainable.

Our Supreme Court has emphasized the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.] While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned unless their unconstitutionality clearly, positively, and unmistakably appears. [Citation.] (Peoplev. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.) Federal law is to the same effect. (See Harmelinv. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836] [mandatory sentence of life without possibility of parole for possessing 672 grams of cocaine did not violate Eighth Amendment].)

The mere length of Banichs sentence, or the fact that because he is 55 years old the sentence is effectively one for life without possibility of parole, does not render it unconstitutional. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [sentence of 115 years plus 444 years to life is not unconstitutional]; accord People v. Ayon (1996) 46 Cal.App.4th 385, 396, disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 [240 years to life]; accord People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283 years]; accord People v. Huber (1986) 181 Cal.App.3d 601, 633-635 [106 years]; accord People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [129 years].)

As the Attorney General argues, Banichs offenses warranted a significant period of incarceration. He first fired several shots at the bar and the bars parking lot, placing individuals in the vicinity in great danger. Appellant then barricaded himself inside his house and ignored repeated police commands to exit the house. He ultimately opened fire on several police officers, striking one officer in his protective vest and narrowly missing two others. The jury found that appellants act of attempting to kill Officer Woodruff was premeditated and deliberated. It was extremely fortuitous that appellant did not kill or seriously injure several people.

Banich cites Justice Mosks concurring opinion in People v. Deloza, supra, 18 Cal.4th at pages 600-601, which concluded: A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution. (Ibid.)

But, as People v. Byrd, supra, 89 Cal.App.4th at page 1383, explained:  [N]o opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.] [Citations.] Because no other justice on our Supreme Court joined in Justice Mosks concurring opinion [in Deloza], it has no precedential value. [] In any event, we respectfully disagree with Justice Mosks analysis. In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. (Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680 . . . ] [sentence of life without possibility of parole not cruel and unusual for possession of 672 grams of cocaine].)

Banich also argues his sentence is unlawful because he is seriously mentally disabled. He asserts his mental illness manifested itself in a long-standing hatred of [the] Long Beach Police Department and the Til 2 Club. However, as Banich himself acknowledges, this issue was not explored in the court below due to the fact that appellant was permitted to represent himself at trial. Indeed, not only was there no medical evidence presented at trial, but Banich even objected to the jury being instructed on how to evaluate a bar employees lay opinion that Banich had a mental problem.[3]

Banich has not demonstrated his sentence constituted cruel and unusual punishment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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

[2] The phone messages identified Banich as the Massiah and included such threats as: Cursed, cursed to damnation, your children will be raped and murdered, your elderly will die, and you will die, do not come here anymore.

[3] In her 911 call, Keller referred to Banich as a paranoid schizophrenic [sic] or whatever you want to call it. On cross-examination, the following colloquy occurred: [Banich:] [I]n this tape you said that Im paranoid schizophrenic? [] [Keller:] Yes, thats my opinion. [] [Banich:] How do you know this? [] [Keller:] Well, from just observing you going through the parking lot, taking down everybodys license plates. At the jury instruction discussions, the prosecutor suggested this testimony warranted instructing on lay opinion testimony. After the trial court opined there was insufficient foundation for the opinion, Banich objected to giving it and the instruction was not given.