P. v. Rojas
Filed 8/14/13 P. v. Rojas CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANGEL CHRISTOPHER ROJAS,
Defendant and Appellant.
B240973
(Los Angeles
County
Super. Ct.
No. VA102116)
APPEAL from a judgment of the Superior
Court of
County, Dewey Lawes Falcone, Judge. Affirmed with modifications.
Donna L.
Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Michael C. Keller and David A.
Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Angel Christopher Rojas was convicted,
following a jury trial, of first degree
murder in violation of Penal Code
occupied motor vehicle in violation of section 246, actively participating in a
street gang in violation of section 186.22, subdivision (a), and possession of
a firearm in violation of section 12021, subdivision (d)(1). The jury found true the allegations that
appellant committed the murder, shooting and firearm possession for the benefit
of a criminal street gang within the meaning of section 186.22, subdivision
(a). The jury also found true the
allegations that a principal personally and intentionally discharged a firearm
within the meaning of section 12022.53 subdivisions (d) and (e)(1) and that
appellant personally and intentionally discharged a firearm within the meaning
of section 12022.53, subdivisions (c) and (d).
The trial court sentenced appellant to a total term of 50 years to life
in state prison, consisting of 25 years to life for murder plus 25 years to life
for personally discharging a firearm.
Sentence for the section 246 conviction and other enhancements was
stayed pursuant to section 654. Sentence
on the active participation and firearm activity convictions was imposed
concurrently. Appellant
contends the trial court’s modification of CALJIC No 5.17 precluded the jury
from considering his defense of an actual but unreasonable belief in the need
to defend another. He asserts and the
court’s instruction on active participation in a street gang permitted the jury
to convict him based on acts he committed alone or aiding in misdemeanor
conduct, and the resulting conviction for active participation was not
supported by substantial evidence.
Appellant also argues the trial court erred in admitting prejudicial and
irrelevant gang evidence. Finally,
appellant maintains the concurrent sentences must be stayed pursuant to section
654 and his sentence of 50 years to life constitutes
hold the sentence for actively participating in a street gang should have been
stayed but affirm the judgment in all other respects.
I. Facts
A. Prosecution
1. Maria Hicks is shot while attempting to stop
the spray-painting of gang graffiti
In the
evening of August 10, 2007,
sixteen-year-old appellant, Richard Rolon, Jennifer Tafolla, Cesar Lopez,
fourteen-year-old David Carrillo, twelve-year-old Daniel Carrillo and Christian
Lechuga gathered at Tafolla’s house in Whittier.
gang. David was not a member of a gang,
but later became a member of Brown Authority.
Everyone else was a member of the Brown Authority gang. At some point, all seven went for a drive.
As the
group drove past a wall near the intersection of San
Gabriel River Parkway and Woodford
Street in Pico Rivera,
members of the group noticed Brown Authority graffiti on the wall had been
painted over with “YN X3,†the initials of another gang. According to Lopez, appellant became “hyped
up†and “very animated.†He said he
wanted to cross out the new graffiti.
Rolon said Lopez should scratch out the graffiti because “he could go
over there and do it and get out of there.â€
Lopez did not want to cross out the graffiti. Lopez believed graffiti writing carried a
risk of violence. Lechuga shared that
belief. Rolon insisted Lopez scratch out
the graffiti. Appellant was “pretty
drunk and acting the fool.â€
While Lopez
was spray-painting on the wall, a Honda Element drove up behind him and put its
high beams on Lopez. Lopez kept on
writing. The Honda came closer to Lopez
and honked at him. Lopez started walking
away. The Honda followed him.
According
to Lechuga, appellant got out of Tafolla’s car and fired at the Honda. Lopez ran away. Appellant got back into Tafolla’s car, and
Tafolla drove off, stopping briefly to pick up Lopez. Lopez was upset with appellant and kept
asking him what he had done. Rolon and
Tafolla were upset and yelling at appellant.
They said he was “stupid†and an “idiot.â€
It was
later determined the driver of the Honda was Maria Hicks, a 57-year-old woman
who lived in the neighborhood. Hicks
died from a gunshot wound to the head.
a. The shooting is witnessed by two individuals
who knew appellant
The
shooting was witnessed by Miriam Villanueva and Eric Pena. Villanueva saw a man writing on a wall and
also saw the Honda flashing its lights and honking. As the “tagger†moved away from the wall,
Villanueva saw appellant exit a parked car and fire a handgun. Villanueva had lived on the same street as
appellant, and seen him many times.
Pena, who was driving, heard gunshots, turned his head and saw appellant
standing in the street with his arms extended and a gun in his hand. Pena’s grandparents lived across the street
from appellant, and Pena had known appellant since appellant was small
boy.
b. Sheriff’s deputies investigate the shooting
About 9:50
p.m., Los Angeles County Deputy Sheriff Tim Lopez went to the intersection of
San Gabriel River Parkway and Woodford in response to a report of shots
fired. He saw a Honda Element with
bullet holes in its rear window. Maria
Hicks was inside the Element, slumped
over the wheel with a gunshot wound to her head.
Sergeant
Jeffrey Cochran investigated the shooting.
He saw white graffiti reading “BXA†which had been crossed out with red
graffiti reading “YN†and “X3.†He found
a spray paint can near the Honda.
Sergeant Cochran spoke with Pena, who told him the shooter was Pena’s
neighbor “Angel.†Pena also knew the
shooter as “Scrappy†from Brown Authority.
Appellant
was arrested on August 14, 2007. That
same day, Detective Weireter interviewed David Carillo. Carillo stated Lopez got out of the car to
“tag.†A car started honking at
Lopez. Appellant got out of the car
carrying a handgun. David heard three or
four shots fired. The next day,
Detective Weireter interviewed Daniel Carillo.
Daniel also told the detective someone was “tagging†when a “box carâ€
started honking. Appellant got out of
the car and ran toward the box car with a gun.
He shot at it four or five times.
Daniel added that after appellant got back into the car, everyone told
appellant he “shouldn’t have shot at that lady.â€
Sergeant
Kevin Lloyd interviewed Lechuga on August 16, 2007. Lechuga admitted he was a member of the
Eastside Treece gang. Lechuga knew
Rolon, who worked for Lechuga’s father.
Lechuga stated that as the group was driving around, they stopped at
some point so that someone could “write†graffiti. Lechuga saw the Honda Element, but did not
see the car’s lights flashing or hear its horn honking. He saw Lopez walking away. Appellant then got out of the car and stood
with his arms outstretched toward the Honda.
Lechuga heard two shots being fired.
Appellant got back in the car and the group drove away. Lechuga agreed that it would be disrespectful
for one gang to cross out another gang’s graffiti.
c. Gang culture
Detective
Hank Ortega testified at trial as an expert on gang culture. Brown Authority, also known as Brown
Assassins, began as a tagging crew in 1995 and evolved into a gang around
2001-2003. As Brown Authority became a
gang, they began feuding with Pico Viejo, an older gang. There were numerous shootings between the
gangs.
By 2007, Brown
Authority had approximately 40 to 50 members.
Appellant, Rolon and Tafolla were known to Detective Ortega to be
members of Brown Authority in 2007. The
gang’s primary activities included vandalism, robbery, possession of firearms
and narcotics. Brown Authority claimed a
territory in Pico Rivera. The southern
boundary of the territory, which was near Woodford, was disputed with Pico
Viejo. Detective Ortega would not expect
a member of either Brown Authority or Pico Viejo to travel through the area of
Woodford and the San Gabriel Parkway unarmed.
This was particularly true if the gang member were planning to write
graffiti. In gang culture, crossing out
another gang’s graffiti shows “complete disrespect to the gang†and “creates
hostile feelings.â€
In response
to a hypothetical based on the facts of this case, Detective Ortega opined that
the shooting was committed for the benefit of and in association with the Brown
Authority street gang. The crime would
enhance the gang’s reputation among its rivals and inhibit people in the
community from reporting gang crimes.
The detective further opined the shooting was a foreseeable result of
crossing out gang graffiti. Detective
Ortega knew of incidents where gang members were shot or killed while writing
graffiti.
B. Defense
Dr. Timothy
Collister, a licensed psychologist, evaluated appellant in January, 2009. Dr. Collister administered a number of tests
and concluded appellant was mildly retarded.
Appellant’s ability to reason abstractly was that of a nine-year
old. Appellant had been in special
education classes since he was seven years old.
Dr.
Collister also opined that appellant had Attention Deficit Hyperactivity
Disorder (“ADHDâ€). This condition
causes impulsivity. Collister did not
expect appellant to process danger or risk the same way as a normal person who
did not have ADHD. A person with ADHD
typically has an impulsive response to the first thing that captures their
attention rather than thinking about the consequences of their actions.
Dr.
Collister acknowledged reviewing a 2008 evaluation of appellant prepared by Dr.
Douglas Allen. Dr. Allen concluded
appellant was feigning cognitive deficits.
Dr.
Collister was also familiar with a 2009 evaluation of appellant prepared by Dr.
Gerald Plotkin. Dr. Plotkin opined that
appellant was malingering during his evaluation by Dr. Collister.
II. DISCUSSION
1. Defense of Another Instruction
Appellant
contends the trial court erred by omitting the last paragraph of CALJIC No.
5.17, the jury instruction explaining the defense of an actual but unreasonable
belief in the need to defend, and the error abridged his federal
determine every material issue presented by the evidence.
omission.
CALJIC No.
5.17 was given to the jury as follows:
“A person
who kills another person in the actual but unreasonable belief in the necessity
to defend against imminent peril to life or great bodily injury, kills
unlawfully but does not harbor malice aforethought and is not guilty of
murder. This would be so even though a
reasonable person in the same situation seeing and knowing the same facts would
not have had the same belief. Such an
actual but unreasonable belief is not a defense to the crime of [voluntary]
manslaughter.â€
“As used in
this instruction, an ‘imminent’ [peril] [or] [danger] means one that is
apparent, present, immediate and must be instantly dealt with, or must so
appear at the time to the slayer.â€
The
standard version of CALJIC No. 5.17 contains two additional optional
paragraphs, both of which were omitted in this case. Appellant’s claim of error involves only the
omission of the last paragraph, which states:
“[This principle applies equally to a person who kills in purported
self-defense or purported defense of another person.]†Appellant contends the average juror would
have been familiar with the concept of self-defense and unfamiliar with the
concept of defense of another and so would have understood the modified version
of CALJIC No. 5.17 as applying only to self-defense.
As
appellant implicitly acknowledges, the instruction was not expressly limited to
self-defense. At most, the instruction
was ambiguous. In reviewing an ambiguous
instruction, the test is “whether there is a ‘reasonable likelihood’ the jury
misunderstood and misapplied the instruction.â€
(People v. Avena (1996) 13
Cal.4th 394, 417; Boyde
(1990) 494 U.S. 370, 380-381.) Here,
there is no reasonable likelihood the jury misunderstood the trial court’s
instruction on an actual but unreasonable belief in the need to defend in the
manner argued by appellant, and thus no federal constitutional error occurred.
The
instruction referred to the need to defend “against imminent peril to life or
great bodily injury.†This phrase could
have applied equally to the life of the defendant or to the life of
another. Arguments by the prosecutor and
defense counsel recognized defense of another was an issue in the case. Tafolla’s counsel argued: “Unreasonable belief in defense of
another. Again, it’s another jury
instruction.†The issue of self-defense
was not raised by the evidence or arguments of counsel. (See People
v. Avena, supra, 13 Cal.4th
at p. 417 [jury would not have misunderstood instruction in part because
arguments of counsel did not mislead jury].)
In this context, jurors could not reasonably have understood CALJIC No.
5.17 to apply only to self-defense.
There was no violation of appellant’s constitutional rights.
2. Active participation in a criminal street
gang
Appellant
contends the trial court erred by instructing the jury he could be convicted of
active participation in a criminal street gang based on (1) acts he committed
alone or (2) aiding and abetting misdemeanor vandalism. He also contends there was insufficient
evidence to support his conviction for this offense. The claims are inter-related and we consider
them together.
In enacting
section 186.22, subdivision (a), the “Legislature . . . sought to avoid
punishing mere gang membership . . . by
requiring that a person commit an underlying felony with at least one other gang member.†(People
v. Rodriguez (2012) 55 Cal.4th 1125, 1134, italics added.) “The plain meaning of section 186.22(a)
requires that felonious criminal conduct be committed by at least two gang
members, one of whom can include the defendant if he is a gang member.†(
a. Vandalism instruction
The trial
court instructed the jury that the predicate offense to a section 186.22,
subdivision (a) violation was the commission of “the crime of vandalism, murder
or shooting at an occupied motor vehicle.â€
The court instructed the jury on the elements of “misdemeanor†vandalism, as follows:
Every
person who maliciously defaces with graffiti or other inscribed material [or]
damages or destroys any real or personal property not his own is guilty of
vandalism in violation of section 594, subdivision (a).
In order to
prove this crime, each of the following elements must be proved:
1. A person defaced with graffiti or other
inscribed material damaged [or] damaged or destroyed any real or personal
property belonging to another person; and
2. The person acted maliciously in doing
so.
The plain
language of section 186.22, subdivision (a) requires felonious conduct. (See People
v. Rodriguez, supra, 55 Cal.4th at pp. 1132, 1134.) The trial court erred by instructing the jury
appellant could be convicted of active participation for aiding and abetting
vandalism, and then instructing the jury on misdemeanor vandalism.
b. Active participation instruction
The trial
court used CALJIC No. 6.50 to instruct the jury on the requirements of active
participation in a street gang, modified only by inserting the names of
specific alleged crimes. The instruction
read as follows:
“Every
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang activity,
and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, is guilty of a violation of Penal Code section
186.22, subdivision (a), a crime.â€
[¶] [¶]
[¶]
“In order
to prove this crime, each of the following elements must be proved:
1. A person actively participated in a criminal
street gang;
2. The members of that gang engaged in or have
engaged in a pattern of criminal gang activity;
3. That person knew that the gang members
engaged in or have engaged in a pattern of criminal gang activity; and
4. That person either directly and actively committed or aided and abetted another member
of that gang in committing the crime of . . . murder or shooting at an occupied
motor vehicle.†(Italics added.)
Appellant
contends italicized language in the active participation instruction permitted
the jury to convict him of that crime if he directly committed a felony while
acting alone. (See People v. Rodriguez, supra,
55 Cal.4th at p.1139 [a defendant does not violate section 186.22, subdivision
(a) if he/she acts alone in committing the predicate felony.])
The
instruction is, at most, ambiguous. We
consider “whether there is a ‘reasonable likelihood’ the jury misunderstood and
misapplied the instruction.†(
Cal.4th at. p 417; Boyde
supra, 494 U.S. at pp. 380-381.) The
challenged paragraph cannot be read in isolation. (See People
v. Bolin (1998) 18 Cal.4th 297, 328.)
The first
paragraph sets forth the requirement that a defendant must “willfully
promote[], further[], or assist[] in any felonious criminal conduct by members
of that gang.†“‘In common usage,
“promote†means to contribute to the progress or growth of; “further†means to
help the progress of; and “assist†means to give aid or support. (Webster’s New
College Dict. (1995) pp. 885, 454, 68.)’â€
(People v. Rodriguez,
that a defendant cannot act alone.
Nothing in
the last paragraph negates or contradicts the requirements of the first
paragraph. The last paragraph is simply
a particularization of an earlier general instruction on culpability which
informed the jury a person is guilty of a crime if the person “directly and actively
commit[s] the act constituting the crime†or “aid[s] and abet[s] the commission
of the crime.â€
The
prosecutor’s theory of the case was appellant, Rolon, Tafolla, and Lopez were
all criminally liable for Hicks’s death.
Before trial, Lopez pled guilty to voluntary manslaughter. At trial, the prosecutor sought to hold
appellant and his two remaining co-defendants responsible for shooting at an
occupied motor vehicle and Hick’s murder.
There was no argument by counsel that a defendant could be liable for
active participation if he acted alone.
(See People
supra, 13 Cal.4th at p. 417 [jury
would not have misunderstood instruction in part because arguments of counsel
did not mislead jury].)
c. Prejudice
Appellant
contends the combined effect of the two instructional errors was to permit the
jury to convict him of active participation for a crime he committed
alone. Alternatively, he contends there
was no evidence showing he aided another gang member in committing a murder or
shooting at an occupied motor vehicle.
The jury found Rolon and Tafolla not guilty of
vehicle.
title="">[5]
We are
required to assess whether a misinstruction on an element of the offense was
harmless beyond a reasonable doubt. (
350.) Given the uncontroverted evidence
that at least one of appellant’s confederates was also culpable for the
felonious killing of Hicks, we conclude the error was not prejudicial.
Appellant
overlooks Lopez’s guilty plea to and subsequent conviction for voluntary
manslaughter for the killing of Hicks, a felony. Lopez testified at trial, and the jury was
aware of his plea.
title="">[6] Appellant and Lopez were both principals in
the commission of a felonious killing.
This alone satisfied the statute.
(See People
supra, 55 Cal.4th at p. 1138 [gang
member who aids and abets shooting by providing gun to gang leader for a
shooting and gang leader who subsequently directly commits the shooting are
both principals and are both guilty of violating section 186.22, subdivision
(a)].)
Because two
defendants were convicted of the felonious killing of Hicks, we conclude,
beyond a reasonable doubt that the instructional error did not contribute to
the verdict. Based on the record before
us, the jury could not have found appellant acted alone when he shot Hicks.
3. Evidence Code section 352
The trial
court admitted rebuttal evidence of a
2011 jailhouse call from appellant to Daniel Carrillo for the purpose of
impeaching appellant’s 2009 statement to Dr. Collister that he was no longer an
active gang member. Appellant argues the
evidence had little probative value because it did not show he was a gang
member in 2009, was cumulative of other evidence he was a gang member in 2007
and at most impeached him on a collateral matter. He contends the evidence was highly
inflammatory because it showed him as a hard core gang member and a
cold-blooded killer who planned the murder in this case. Appellant concludes the trial court abused
its discretion in failing to exclude the evidence pursuant to Evidence Code
section 352, and the erroneous admission violated his federal constitutional
right to due process, a fair trial and a reliable determination of penalty.
Evidence
Code section 352 provides: “The court in
its discretion may exclude evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.â€
a. Telephone call
The
transcript of the telephone call is five pages long. We excerpt only one key paragraph: “All these, those other fools go home late at
night, fool. Where is my home,
fool? I was walking around the Circle
everywhere, looking for motherfuckers.
To me, selling motherfuckers out, we - - I wanted them to get the point
that I, we ain’t fuckin’ playing homie, we’re not playing around, homie. We went this far with this shit and we’re not
going to stop homie, that the way I look at it, fool. We’re hood, fool. We made ourselves a hood, we want a hood of
course, you know that right?â€
b. Forfeiture
Appellant’s
counsel did not make any Evidence Code section 352 claims in the trial
court. Cocounsel did argue appellant
might have claimed a gang affiliation while in jail simply for protection. He also argued the evidence was
cumulative. With the exception of these
two claims, appellant’s claims are forfeited.
exclusion of evidence, or one based on a different ground from that advanced at
trial, does not preserve the claim for appeal.â€
(People v. Marks (2003) 31
Cal.4th 197, 228.)
As for
cocounsel’s claims, there was no evidence to show appellant in fact claimed
gang allegiance for protection. The tone
of the telephone conversation does not suggest reluctance to be affiliated with
a gang; it suggests enthusiasm. The
evidence may have been cumulative on some points, but it was not so on other
points, as we discuss below.
c. Prejudice
Even if
appellant had raised his claims in the trial court, his objection lacked
merit. The statements had significant probative
value and did not have the prejudicial effect claimed by appellant. The evidence was properly admitted.
i. Probative value
Appellant
contends Dr. Collister’s opinion was based on cognitive tests and observations,
not appellant’s statements about gang membership. He concludes any dishonesty on the collateral
topic of gang membership did not undermine that opinion. Appellant is mistaken.
Dr.
Collister acknowledged questioning appellant about his gang involvement during
his evaluation. He agreed appellant was
“compliant†during this questioning. Dr.
Collister also agreed a person’s compliance level and “level of honesty in
completing whatever tasks or whatever tests that [he] had for them†was “an
important component of getting an accurate measure of someone’s
intelligence. Appellant’s honesty, or
lack thereof, during his evaluation was quite relevant.
ii. Prejudicial effect
Appellant
contends the telephone call was highly inflammatory and prejudicial because it
“painted a picture†of him as a “cold-blooded killer†and was “the only real
evidence suggesting a planned killing.â€
He argues the reference to “walking around the Circle†while “strappedâ€
described the shooting in this case.
We do not accept appellant’s
interpretation of this statement. The
“Circle†was a term used to describe the area of Greenglade and Chappelle, a
location which at one time was “like the headquarters†of Brown Authority. The shooting occurred elsewhere, at San
Gabriel River Parkway and Woodford.
Appellant was not “walking around†before shooting. He arrived in a car, got out to shoot and
then was driven away. The phrase
“strapped†was redacted.
The significant probative value
of the evidence outweighed any small
prejudicial impact from the evidence. The
telephone call was properly admitted.
4. Concurrent sentencing
Appellant contends the trial court erred
in failing to stay his sentences for active participation in a street gang
(count four) and unlawful firearm activity (count five) pursuant to section
654. We agree the sentence for active
participation must be stayed, but not the sentence for unlawful firearm
activity.
When a defendant is convicted of
multiple offenses that are part of an indivisible course of conduct, the
defendant may be punished for only one offense; the sentences on the remaining
offenses must be stayed. (§ 654, subd.
(a); People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Whether a course of criminal conduct is
divisible so as to allow multiple punishment under section 654 depends on
whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th
944, 951-952.)
a. Active participation in a street gang
Appellant contends his sentence for active
participation in a street gang must be stayed under the holding of
191. He is correct.
“‘[S]ection 654
precludes multiple punishment for both (1) gang participation, one element of
which requires that the defendant have “willfully promote[d], further[ed], or
assist[ed] in any felonious criminal conduct by members of th[e] gang,â€
[citation] and (2) the underlying felony that is used to satisfy this element
of gang participation.’ [Citation.] Section 654 applies where the ‘defendant
stands convicted of both (1) a crime that requires, as one of its elements, the
intentional commission of an underlying offense, and (2) the underlying offense
itself.’ [Citation.]†(People
v. Mesa, supra, 54 Cal.4th 191 at pp.
197-198.)
Appellant was sentenced to a term of 25
years to life for his murder conviction.
The murder was the underlying felony for the active participation
conviction. The active participation
sentence must be stayed pursuant to section 654.
b. Firearm possession
Appellant contends his conviction for possession of a firearm (§12021,
subd. (a)(1)) must be stayed under the reasoning of People v.
“Commission of
a crime under section 12021 is complete once the intent to possess is perfected
by possession. What the [perpetrator]
does with the weapon later is another separate and distinct transaction
undertaken with an additional intent which necessarily is something more than
the mere intent to possess the proscribed weapon. [Citations.]†(People v. Jones (2002) 103
Cal.App.4th 1139,
1146.)
Section 654 bars punishment for both
possession and the greater offense where the defendant comes into possession of
the firearm just as he commits the greater offense. (People v. Bradford (1976) 17 Cal.3d
8, 13 [patrol officer stopped defendant for a moving violation; defendant took
the officer’s gun and shot the officer]; People v. Venegas (1970) 10
Cal.App.3d 814, 821 [evidence suggested the defendant obtained the gun during a
struggle moments before the shooting].)
Section 654 does not bar punishment for
both offenses where the defendant arrives at the scene of the greater offense
with the firearm. (People v. Jones,
supra, 103 Cal.App.4th at pp. 1141-1142 [ex-felon went to his
ex-girlfriend’s house, left when he learned she was not there and returned 15
minutes later and began shooting into the home]; People v. Ratcliff (1990)
223 Cal.App.3d 1401, 1414 [ex-felon used a gun to commit two robberies about
ninety minutes apart and still had the gun when police arrested him thirty
minutes after the second robbery].)
The evidence in
this case indicates appellant possessed the firearm well before the
shooting. Appellant was at Tafolla’s
house for an hour before he and the others went for a drive. His companions did not see him with a handgun
while in the car. At a minimum, this
suggests appellant did not obtain the gun immediately before firing it. Under these circumstances, appellant was
properly sentenced separately for firearm possession, murder, and shooting at
an occupied motor vehicle.
5. Cruel and unusual punishment
Appellant was
16 years old at the time of the murder in this case. He contends his sentence of 50 years to life
is a de facto sentence of life without the possibility of parole which violates
the prohibition against cruel and unusual punishment in the United States and
California Constitutions. We do not
agree.
a. Life without parole
The Eighth Amendment to the United
States Constitution states, “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.†(U.S. Const., 8th Amend.)
Sentencing a juvenile to life without
the possibility of parole for a non-homicide offense violates the Eighth
Amendment’s prohibition of cruel and unusual punishment. (Graham v. Florida (2010) 560 U.S. ––
[130 S.Ct. 2011, 2034, 176 L.Ed.2d 825].)
This is so because there are “fundamental differences between juvenile
and adult minds†and juveniles are “more capable of change than are adults.†(Id. at p. 2026.)
Imposition of a mandatory life without
parole sentence on a juvenile convicted of murder also violates the
v. Alabama (2012) 567 U.S. –– [132 S.Ct. 2455, 2467-2468, 183 L.Ed.2d
407].) Such penalties “preclude[ ]
consideration of [an offender’s] chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences.†(Id. at p.
2468.) Consideration of these factors is
required for any life without parole sentence for a juvenile, even when the
sentence is imposed for a homicide. (Id.
at p. 2458.)
Following the decisions in
sentence imposed on a juvenile convicted of non-homicide offenses was the
functional equivalent of a life sentence without the possibility of parole and
was invalid in light of the decisions in Graham and Miller. (People
v. Caballero (2012) 55 Cal.4th 262, 268–269.)
At sentencing, the trial court addressed
appellant’s claim that 50 years to life was a de facto sentence of life without
the possibility of parole. The court
found parole was a possibility.
Appellant did not present any evidence regarding his life expectancy in
the trial court. Absent such evidence,
we cannot evaluate whether his sentence is a de facto sentence of life without
the possibility of parole. (People
v. Kelley (1997) 52
Cal.App.4th 568, 583; People v.
DeJesus (1995) 38 Cal.App.4th 1, 27 [both holding issue of cruel and
unusual punishment is a fact intensive one which is forfeited if not raised in
the trial court].)
title="">[9]
b. Disproportionality
Appellant contends that even without
reference to the holdings of Graham
and Miller, his sentence is grossly
disproportionate to the offense and offender.
The appropriate standard for determining
whether a particular sentence for a term of years violates the Eighth Amendment
is gross disproportionality. That is,
“[t]he Eighth Amendment does not require strict proportionality between crime
and sentence. Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.
[Citations.]†(Harmelin v.
Michigan (1991) 501 U.S. 957, 1001, [111 S.Ct.
2680, 115 L.Ed.2d 836] (conc. opn. of Kennedy, J.), citing Solem
v. Helm (1983) 463 U.S. 277, 288, [103 S.Ct. 3001, 77 L.Ed.2d 637].) Successful grossly disproportionate
challenges are “‘exceedingly rare’†and appear only in an “‘extreme’â€
case. (Lockyer v. Andrade (2003)
538 U.S. 63, 73 [123 S.Ct. 1166, 155 L.Ed.2d 144].)
Article I, section 17 of the California
Constitution prohibits infliction of “[c]ruel or unusual punishment.†A sentence may violate this prohibition 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.’†(People
v. Dillon (1983) 34 Cal.3d 441, 478.)
Reviewing courts use a three-pronged test to determine whether a
particular sentence is disproportionate to the offense for which it is
imposed. First, we examine “the nature
of the offense and/or the offender, with particular regard to the degree of
danger both present to society.†[Citation.] Second, we compare the punishment imposed
with punishments prescribed by California law for more serious offenses. [Citation.]
Third, we compare the punishment imposed with punishments prescribed by
other jurisdictions for the same offense.
[Citation.] (People v. Em (2009)
171 Cal.App.4th 964, 972.) A defendant
must overcome a “considerable burden†to show the sentence is disproportionate
to his level of culpability. (People
v. Wingo (1975) 14 Cal.3d 169, 174.)
For this reason, “[f]indings of disproportionality have occurred with
exquisite rarity in the case law.†(People
v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
The offense in this case was the
premeditated killing of a 57-year-old woman who posed no threat of physical
danger to appellant or his fellow gang members.
Her decision to attempt to dissuade Lopez from spray painting graffiti
was, in effect, a gesture of kindness to him.
She could have called the police, which may have resulted in Lopez’s
arrest. Her attempted kindness was met
with death. This is a very serious
crime.
Appellant had a limited criminal record
at the time of the murder. He argues he
also suffered from mental deficits.
There was conflicting evidence on this point. Dr. Collister concluded appellant had mental
deficits and lacked impulse control. Two
other psychologists concluded appellant was malingering and feigning the
alleged mental deficits. The trial court
acted within its discretion in discounting Dr. Collister’s conclusions.
Appellant does not contend his sentence
is disproportionate when compared to the sentences imposed in other cases
involving murders committed by young defendants with limited prior criminal
records, and so we need not consider these factors. We note, however, his sentence is comparable
to sentences for similarly situated juveniles in California. (See,
e.g., People v. Em, supra, 171 Cal.App.4th at pp. 972–977
[upholding sentence of 50 years to life for 15-year-old gang member who
committed murder during a robbery and whose prior record was not extensive]; People
v. Demirdjian (2006) 144 Cal.App.4th 10, 14 [15-year-old’s sentence of two
consecutive terms of 25 years to life for two special circumstance murders did
not violate state or federal Constitutions]; People v. Villegas (2001)
92 Cal.App.4th 1217, 1230-1231 [upholding sentence of 40 years to life for 17-year-old
gang member who committed attempted murder with a firearm]; People v.
Gonzales (2001) 87 Cal.App.4th 1, 17 [upholding sentence of 50 years to
life for 14-year-old gang member who committed murder].)
In sum, appellant has not shown the
statutory sentence “‘“is so disproportionate to the crime for which it is
inflicted that it shocks the conscience,â€â€™â€ the California standard, or that it
“is ‘grossly disproportionate’ to the severity of the crime,†the federal
standard. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) Thus, there is no constitutional
violation.
c. Mandatory sentences
Appellant also asserts California’s
mandatory sentencing scheme is flawed because it fails to allow the trial court
discretion to impose an appropriate sentence.
Appellant points out, correctly, that
the penalty provisions of section 12022.53 will result in a mandatory sentence
of 50 years to life for a juvenile defendant who is convicted of murder with a
firearm. He contends this violates the
reasoning of Graham and
“consideration of [an offender’s] chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences.†(Miller, supra, at p.
2468.)
Appellant is incorrect. The mandatory penalty provisions of section
12022.53 do not on their face result in cruel or unusual punishment. (People
v. Martinez (1999) 76 Cal.App.4th
489, 494-496 [considering challenge to section 12022.53, subdivision (d)’s
mandatory penalties].)
III. DISPOSITION
The two year
term for active participation in a street gang in violation of section 186.22,
subdivision (a), is ordered stayed pursuant to section 654. The judgment of conviction is affirmed in all
other respects.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
MOSK,
Acting P.J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Rolon,
Tafolla, and Lopez were charged with appellant in this matter. Lopez pled guilty to voluntary manslaughter
before trial. Rolon and Tafolla were
tried jointly with appellant. The jury acquitted Rolon and Tafolla of the
murder and shooting charges, but found them guilty of active participation in a
street gang.
