P. v. Vigeant

 

 

 

 

 

 

 

 

 

Filed 8/6/13  P. v. Vigeant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   ANTHONY VIGEANT,               Defendant and Appellant.

B241378         (Los Angeles County       Super. Ct. No. NA075960)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Mark C. Kim, Judge. 
Affirmed.

 

            Leslie
Conrad, 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, Eric E. Reynolds and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.

 

___________________________________________________

>

            Defendant Anthony Vigeant appeals from the trial court’s
denial of his motions requesting a new trial, the striking of the special
circumstance, and the appointment of an expert. 
In July 2009, Vigeant was convicted of the href="http://www.mcmillanlaw.com/">first degree murder of David Pettigrew
with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17))href="#_ftn1" name="_ftnref1" title="">^[1] (count 1), attempted robbery (§§ 664/211)
(count 2), and first degree burglary (§ 459) (count 3).  The jury found that a principal was armed
with a firearm during the commission of all counts.  (§§ 12022, subd. (a)(1).)  After denial of the new trial motion and
other motions, the trial court sentenced Vigeant to life in prison without the
possibility of parole (LWOP) in count 1, a consecutive term of four years six
months in count 2, and an additional year for the principal-armed
enhancement.  The court stayed the
sentence in count 3 under section 654.

            Vigeant
appeals on the grounds that:  (1) the
trial court prejudicially erred in denying his motion for new trial, requiring
reversal; (2) the trial court abused its discretion by refusing to hold an href="http://www.fearnotlaw.com/">evidentiary hearing and to appoint a
clinical neuropsychologist, and the errors prejudicially denied Vigeant his
constitutional rights; (3) Vigeant’s LWOP sentence constitutes href="http://www.mcmillanlaw.com/">cruel and unusual punishment; and (4)
the sentence in count 2 must be stayed under section 654. 

FACTUAL HISTORYhref="#_ftn2"
name="_ftnref2" title="">^[2] 

            At
Vigeant’s trial, Ramon Hernandez testified that he was a charged codefendant in
the shooting death of Pettigrew.  He had
pleaded guilty to one count of murder and had admitted the special
circumstances that the murder was committed during the course of a residential
burglary and during the course of an attempted
robbery.  He had admitted to the
personal use of a firearm and pleaded guilty to the attempted residential
robbery and residential burglary counts. 
He had not yet been sentenced.

            Hernandez had not been offered any deal
or plea bargain and had not asked for one. 
He pleaded guilty to accept responsibility for his actions.  He was not offered any leniency for
testifying and had volunteered to testify because “the truth needs to be out
there, and everybody has a right to the truth.” 
He also wanted to bring justice to the victim’s family.

            Hernandez
was a Marine who had done two tours in Iraq.  He was injured when a suicide vehicle
exploded near him and shrapnel entered his head.  He lost his left eye, his sense of smell, his
left frontal lobe, and part of his right frontal lobe.  He suffered nerve damage in his right arm and
hand.  His brain injury affected his
thinking and caused him to be more emotional than before, but his ability to
feel empathy with others was diminished. 
He had also become “very compulsive.” 
He did things he normally would not have done, and he sometimes
processed information more slowly.

            Hernandez
met fellow Marine Vigeant at Camp Pendleton Marine Corps Base.   Shortly thereafter, he met Vigeant’s cousin,
Landers, another Marine.  At some point,
Hernandez talked to them about Iraq
and his injuries.  Hernandez acknowledged
that he did not discuss the emotional
or psychological issues related to his injuries with Landers and Vigeant.

            Hernandez
heard Landers complain about his problems with Pettigrew, whom Hernandez did
not know.  Landers said that Pettigrew
owed him some cocaine, and Vigeant had left his laptop computer with Pettigrew
as collateral for the cocaine.  Landers
believed that Pettigrew was dodging him. 
Although Pettigrew had told Landers he could pick up the cocaine at
Pettigrew’s apartment, Pettigrew would “blow [Landers] off” by turning off his
cell phone whenever Landers called him.

            Hernandez
heard Landers and Vigeant threatening Pettigrew over the telephone.  During a period of two and one-half hours,
Landers and Vigeant left four threatening messages on Pettigrew’s voicemail.  This occurred on the night of September 7, 2007, and the early
morning of September 8, 2007.

            On the
evening of September 9, 2007,
Hernandez was drinking with Vigeant and another Marine at the barracks.  They then went to a party at someone’s
house.  Landers telephoned Vigeant there
and asked Vigeant to pick him up. 
Vigeant eventually agreed, and Hernandez went with Vigeant so as not to
be stranded.  When Landers joined them,
Landers began complaining again about Pettigrew dodging him.  Landers said Pettigrew

still had not given him his cocaine, and if he had a gun “he
would bust a cap in his ass . . . .”

            Hernandez
told Landers that he had a handgun, whereupon Landers became “excited, very
enthusiastic” and asked Hernandez where the gun was located.  Landers wanted to get the gun to shoot Pettigrew.  Vigeant also said he wanted Hernandez to get
his gun, and he said he wanted Pettigrew to be killed.  The only reason that Hernandez went with
Landers and Vigeant to Pettigrew’s apartment was because Landers and Vigeant
were looking for someone with a gun.

            Hernandez,
Landers, and Vigeant drove to Hernandez’s barracks, a 40-minute drive south,
and Hernandez retrieved the gun from his car. 
They then began driving northward to Long Beach.  Landers drove, Vigeant was in the front
passenger seat, and Hernandez was in the rear seat.  At some point during the two-hour drive,
Hernandez asked the other men what they wanted him to do, and they said they
wanted Pettigrew to be shot.  Hernandez
told them that there was a difference between being shot and being dead and
asked them, “Which one do you want?” 
Landers said, “I want him dead.”   
Vigeant did not say anything, nor did he say, “No.”  Hernandez then stated that Landers had the
lead role, but Vigeant joined in the response that he wanted the man killed.

            As they
drove northward, Hernandez fired the gun out the window of the car in the Camp
Pendleton area.  He asked Landers and
Vigeant more than once what they wanted, and they both said they wanted
Pettigrew dead.  According to Hernandez,
“Plan A was to pick up cocaine.  Plan B
was to kill somebody, which was Mr. Pettigrew.” 
Hernandez did not like the fact that Pettigrew was messing with fellow
Marines.

            When they
arrived at their destination, they all got out of the car and headed to
Pettigrew’s apartment complex.  Hernandez
told Landers that if Landers wanted “this guy” dead, and the guy did not give
Landers what he wanted, then Hernandez was going to shoot him, “because you
said you want him dead, right?”  In
response, “they were, like, ‘Yeah.’” 
Landers jumped a fence beside Pettigrew’s apartment building to check if


Pettigrew’s window was open. 
Landers planned to have all three of them hop the fence and enter
Pettigrew’s apartment through the window, but he returned because “some lady”
saw him.  Jennifer Potter, who lived next
door to Pettigrew, saw a man walking past her window by means of a walkway that
was closed off to tenants and the public. 
When Potter challenged the man, he said he was locked out and was trying
to get in his window.  Potter believed
she heard a gunshot approximately 20 minutes after she saw the man.

            Hernandez
asked to see a floor plan of Pettigrew’s apartment.  Landers made one for him out of twigs and
small rocks.  Hernandez testified that
“the plan was always the same:  go in,
get this guy to give us the coke, and, if not, that he was supposed to get
shot.”

            The three
men entered Pettigrew’s building, and Landers lightly turned the door knob of
Pettigrew’s apartment.  Hernandez told
Landers that the door was not locked and that he could push it open, which he
did.  Landers entered first, then
Vigeant, then Hernandez.  Once they had
quietly entered the dark apartment, either Landers or Vigeant turned on a
lamp.  Hernandez then saw Pettigrew, but
Landers and Vigeant had already

gone through another doorway inside the apartment.  Although the two men were being quiet,
Hernandez could hear them moving things around. 


            Hernandez
saw that Pettigrew was passed out. 
Pettigrew awoke and saw Hernandez, whom he did not know.  He just looked at Hernandez and said
nothing.  Landers and Vigeant came back
in and saw that Pettigrew was awake. 
“They were, like, ‘Hey, what the fuck? 
Where is my coke?’”  Both Landers
and Vigeant were shouting, “Where is the computer.  Where is my shit.”  They began yelling at Pettigrew, demanding
the coke.

            Hernandez
noticed that Pettigrew was “on something.” 
Landers asked Pettigrew if he was on Oxycontin, and Pettigrew said he
was.  Pettigrew said he would call his
connection and get the coke.  Pettigrew pushed
some buttons on his cell phone and Landers’s phone rang.  Landers looked at his phone and said, “What
the fuck?  . . .  [W]hy are you calling me?  Call your dealer.”  Landers and Vigeant continued to demand that
Pettigrew get the cocaine, and Pettigrew again attempted to make a phone
call.  After no more than 20 minutes,
Hernandez pulled out his pistol and told Pettigrew

he had something that would refresh his memory.  Hernandez jammed the pistol into Pettigrew’s
right eye socket and said, “You need to make your call.  Call your dealer.  Call whoever you have to call, but get that
coke here now.”

            Pettigrew
continued to push buttons on his phone. 
Hernandez told him that he would give him 10 seconds.  If Pettigrew had not produced something at
the end of those 10 seconds, Hernandez was going to shoot him.  Neither Landers nor Vigeant said anything or
attempted to stop Hernandez.  Neither
told him to put the gun away.  They
continued to yell at Pettigrew saying, “When he starts counting and he gets to
10, when he makes it to 10 he is going to shoot you, so hurry up, get on the
phone, call your dealer and get the coke here right now.”

            Hernandez
began counting.  He counted very slowly,
waiting approximately 10 or 15 seconds between each number.  When he got to 10, he shot Pettigrew from a
distance of approximately four feet.  He
did so because that is what Landers and Vigeant had brought him along to
do.  He did it to back up his fellow
Marines.  At no time during the count did
either man say or do anything to register their objection to Hernandez’s
shooting Pettigrew.  Landers and Vigeant
were telling Pettigrew to come up with the stuff or Hernandez would shoot him.

            When
Hernandez shot Pettigrew, Landers and Vigeant were shocked.  Hernandez believed the shock was not caused
by the fact that the shot actually occurred but rather because they were
shocked at what they saw—they were not conditioned to see something like
that.  They knew they were all there to
shoot Pettigrew.  Landers jumped back and
said, “Dude, you almost got blood on me.” 
Vigeant just stood there with his mouth and his eyes wide open.  The three men ran to the car.  Landers drove around

aimlessly for about half an hour until Hernandez told him
that they needed to get back on the freeway.  Vigeant was hysterical.  Hernandez explained that, when he said
Vigeant was “hysterical,” he meant that he was speaking very loudly and saying,
“Do you think, he is dead?  Do you think
he is dead?  We should go back.”  Vigeant wanted to see if the police would
show up.  He was not crying, and Landers
was not crying either. 

            Hernandez
repeated that after he asked Landers and Vigeant if they wanted Pettigrew
killed, they both answered “yes.” 
Hernandez asked the same question during the trip between Camp Pendleton
and Long Beach, when they got to Long Beach, before they left the barracks, and
just before they entered Pettigrew’s apartment. 
Both Landers and Vigeant looked at the gun during the trip, and Vigeant
played with it until he was told to stop it. 
Before the shot was fired, neither Landers nor Vigeant told Hernandez
not to do it.

            Hernandez
said that when he told defense counsel on cross-examination that he did not
intend to kill Pettigrew, he meant that he did not want him dead.  It was not up to him.  He did not even know him.  However, he was willing to kill him because
Landers and Vigeant had asked him to do so. 
The rationale was that Pettigrew was messing with Hernandez’s fellow
Marines.  Hernandez acknowledged that he
had previously testified that he shot Pettigrew because Hernandez had given
Pettigrew a specific order and

Pettigrew had not obeyed it.

            After the
shooting, the three men drove back to Camp Pendleton, stopping on the way for
food at a convenience store.  They went
to Landers’s room and talked about the shooting.  They agreed not to say anything and to
pretend they did not know each other. 
They drank and “hung out” for about three more hours.  Landers told Hernandez he should have shot
Pettigrew two more times to ensure he was dead.

            On the day
after the shooting, September 10, 2007, Mauricio Rosales, a maintenance man,
noticed an apartment door ajar in Pettigrew’s building.  When he looked inside, he saw a man slumped
down on the sofa with a cell phone in his right hand.  The man was bloody and was not
breathing.  Rosales called 911.

            Police
officers responded to the scene.  A
nine-millimeter casing and an expended round were collected in the
apartment.  Dr. Raffi Djabourian, a
deputy medical examiner, testified that Pettigrew had a bullet entrance wound
at the left temple that exited on the back of the head.  The wound was rapidly fatal.  The victim was found still holding his cell
phone due to a rapid onset of rigor. 
None of the various drugs found in his system contributed to his death.

            Detective
Scott Lasch was assigned to the Pettigrew murder case along with Detective
Malcolm Evans.  They did not find any
narcotics or drug-dealing paraphernalia in Pettigrew’s apartment.  They found a laptop computer that was
registered to Vigeant on the rear seat of Pettigrew’s truck.  Detective Lasch discovered that a parking
citation was issued to Vigeant on September 6, 2007 (three days before the
shooting), in the area of Orizaba Avenue in Long Beach, near Pettigrew’s
apartment.

            By means of
Pettigrew’s cell phone records, the investigating officers established that
calls were made from Landers’s and Vigeant’s cell phones to Pettigrew on the
night of his death and two days before his death.  Two days before the shooting, Vigeant
said:  “Hey what’s up brotha.  I know you know who this is.  It’s fuckin’ Tony.  And dude, fuckin’, eh-heh, if you don’t stop
playing games, it’s gonna get ugly dude. 
And, fuckin’, I’m gonna come to your house.  And it’s gonna be all bad.  So hit me back, ASAP.  Late.” 
Fifty-three minutes later, Vigeant left the following message:  “Dave you better fuckin’ hit me back right
now dude.  Fuckin’, me and my cousin, we
ain’t playin’ dude.  You fuckin’ hit us
back up or I’ll fuckin’ find your ass dude. 
Hit me up.  Late.”

            In between
Vigeant’s two messages, Landers left a message stating, “Hey Dave, you better
fuckin’ call me back bro.”  Shortly after
midnight, on September 8, 2007, Vigeant left the following message:  “Dave, don’t even play dude.  Fuckin’, me and my b-me and my homeboy Tre,
fuckin’, are ready to rumble dude. 
Fuckin, pick up your phone dude or it’s gonna get ugly.  Just to let you know.  Nobody fuckin’ robs me dude.  No one. 
So, it’s in your best interest to pick up your phone, otherwise it’s
gonna get really ugly, and we know where to find you.  Not only at your apartment, but we got
fuckin’ military fuckin’ aspect. 
Fuckin’, we know where to look man. 
You’re fucked if you try to run. 
Alright . . . .  Hit me up.  See if I’m playing.  Late.”

            Detective Bryan
McMahon investigated cell site hits for telephones linked to Landers and
Vigeant.  He discovered that the hits on
the cell sites during the evening of Pettigrew’s death began near Camp
Pendleton and proceeded north along the coast, the No. 5 freeway, the No. 22
freeway, and all the way to Long Beach. 
A cluster of hits at a certain point led the investigators to go to that
location, and they located a gas station near that spot.  The investigators obtained footage from the
gas station’s security cameras that showed Vigeant, Landers, and Hernandez
pulling up to the pumps at 8:40 p.m. 
They all got out of the car. 
Vigeant is seen talking on his cell phone, and Landers also used his
cell phone.  The footage showed Landers
driving away from the gas station at 8:51 p.m.

            Detective
Dennis Robbins assisted in the investigation of Pettigrew’s murder.  After Landers was arrested in the Bay Area by
United States Marshalls, Detective Robbins interviewed Landers in the Contra
Costa County jail on September 27.  When
shown a photograph of his cousin, Vigeant, Landers said he did not know
him.  Landers said he did not know
Hernandez when shown a photograph of him. 
Landers said he had not been in Long Beach in the preceding weeks.  Landers acknowledged that he was due back at
Camp Pendleton on September 24, 2007, and had failed to show up.  He said it was because he had been scheduled
to go to Iraq on September 28, and he did not want to go.  

            Detective
McMahon testified that he made a series of phone calls to Vigeant on September
23, 2007, between 4:32 p.m. and 6:45 p.m. 
Not all of the calls were answered. 
An audio recording of the calls was played for the jury.  Vigeant exchanged pleasantries with the
detective, beginning with “How’s it going man?” when the detective introduced
himself.  When asked if he knew anybody
that had recently been murdered down in Long Beach, Vigeant merely replied,
“Negative.”  When told that the “guy’s”
name was David and asked if the name rang a bell, Vigeant said “Yes.”  When Detective McMahon then asked “What’s
that?,” Vigeant said he had left his laptop “down there.” He said David was his
cousin’s friend.  He then said his
cousin, named Trevor Landers, had met David a couple of times. Vigeant said he
lent Pettigrew the laptop “a couple of months” earlier.  Vigeant denied several times having spoken to
Pettigrew on his phone just after midnight on September 8, 2007.  He said he had never been to Pettigrew’s home
in Long Beach. Vigeant said that Landers knew Pettigrew from school. When the
detective asked Vigeant how he could be contacted, Vigeant replied that he had
just moved into his barracks two weeks earlier and was not sure the detective
could contact him there. When asked again about phone calls to Pettigrew,
Vigeant claimed he had lent his phone to a friend named Hernandez, but
Hernandez did not know Pettigrew. Vigeant had not seen Pettigrew in “probably
like a month.”  Vigeant expressed no
curiosity when the detective stated that he was trying to figure out what
happened to Pettigrew.  Vigeant merely
replied, “Yeah.”  When the detective told
Vigeant that Pettigrew was murdered, Vigeant expressed surprise. 

            Vigeant
told the detective that he had gone to a going-away party at the home of a
Corporal Schrader on September 8, 2007, a Saturday.  He was at the party from 4:00 or 5:00 until
1:00 or 2:00 the next morning.  He then
said he called Pettigrew from the party to ask for his laptop.  In a subsequent phone call, Detective McMahon
clarified to Vigeant that the murder took place on Sunday, September 9.  Vigeant said he was alone that day, “just
chilling.” 

            Detective
McMahon interviewed Hernandez on September 28, 2007.  Hernandez initially denied going to Long
Beach.  After being told that another
suspect was in custody, Hernandez related the events on the night of the
murder.  An audio recording of
Hernandez’s interview was played for the jury.

            Detective
McMahon retrieved Hernandez’s gun from a location in Tempe,

Arizona, where Hernandez had directed him to look.  The gun was a Browning high-power
nine-millimeter weapon (People’s exhibit 20). 
Troy Ward, a criminalist with the Long Beach Police Department,
confirmed that Hernandez’s firearm matched the shell casing found at the scene
of Pettigrew’s shooting.

>DISCUSSION

I.  New Trial Motion

            A.  Vigeant’s Argument

            Vigeant contends that the trial court erroneously denied
his motion for new trial on the
grounds of ineffective assistance of counsel. 
According to Vigeant, his trial counsel, David R. Cohn, was aware of
Vigeant’s mental disabilities and was therefore obligated to investigate them,
consult an expert, and introduce expert testimony on the nature of Vigeant’s
neurodevelopmental disabilities.  Cohn’s
failure to do so resulted in a denial of Vigeant’s rights under the Sixth and
Fourteenth Amendments.  Cohn was also
ineffective for failing to investigate Hernandez’s disabilities and consult an
expert to prepare for Hernandez’s cross-examination and testify as necessary.

            B.   Relevant Authority

            Ineffective
assistance of counsel, if proven, is a valid, nonstatutory ground for a new
trial.  (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; >People v. Reed (2010) 183 Cal.App.4th
1137, 1143.)  Upon appeal from the denial
of a new trial motion based on a claim of ineffective assistance or other
denial of constitutional rights, we apply two distinct standards of
review.  We defer to the trial court’s
factual findings if supported by substantial evidence, but we exercise de novo
review over the ultimate issue of whether Vigeant’s constitutional rights were
violated.  (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) 

            On appeal,
to establish ineffective assistance of counsel, a defendant has the burden of
proving both that “his counsel’s performance was deficient when measured
against the standard of a reasonably competent attorney and that counsel’s
deficient performance resulted in prejudice to defendant in the sense that it
‘so undermined the proper functioning of the href="http://www.mcmillanlaw.com/">adversarial process that the trial
cannot be relied on as having produced a just result.’”  (People
v. Andrade (2000) 79 Cal.App.4th 651, 659-660; see also >Strickland v. Washington (1984) 466 U.S.
668, 686-687 (Strickland).)  “A defendant must prove prejudice that is a
‘“demonstrable reality,” not simply speculation.’  [Citation.]” 
(People v. Fairbank (1997) 16
Cal.4th 1223, 1241.)  A court need not
assess the two factors of the inquiry in order. 
If there is an inadequate showing on either factor, it need not be
addressed.  (Strickland, at p. 697.)

            In
examining claims of ineffective assistance of counsel, we give great deference
to counsel’s reasonable tactical decisions. 
(People v. Hinton (2006) 37
Cal.4th 839, 876.)    A defendant must
establish that the challenged act or omission did not result from an informed
tactical choice within the range of reasonable competence.  (People
v. Pope (1979) 23 Cal.3d 412, 425.) 
In order to establish ineffective assistance based on an alleged failure
to investigate, a defendant “must prove that counsel failed to make particular
investigations and that the omissions resulted in the denial of or inadequate
presentation of a potentially meritorious defense.”  (In re
Sixto (1989) 48 Cal.3d 1247, 1257.) 
At the same time, any tactical choices regarding the preparation of the
case and the focus of the investigation in one area rather than another must be
reasonable under prevailing professional norms. 
(Wiggins v. Smith (2003) 539
U.S. 510, 521-522.)             “‘[S]trategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation.  In other words, counsel
has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.’”  (Id.
at p. 521.)  Appellate courts must
refrain from second-guessing trial counsel, since “‘[i]n any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments.’”  (>Id. at pp. 521-522.)

            With
respect to a claim that counsel has withdrawn a defense, our Supreme Court has
stated:  “‘It is sufficient for the
present purpose to observe that the defense was potentially meritorious, and
that petitioner was denied an adjudication on the matter because of his
counsel’s inadequate factual and legal preparation.’”  (People
v. Shaw (1984) 35 Cal.3d 535, 541.) 
A crucial defense is not necessarily one that would result inexorably in
a defendant’s acquittal.  (>Ibid.)

            >C. 
Proceedings Below

            In
the instant case, after denying the motion for an href="http://www.fearnotlaw.com/">evidentiary hearing, the trial court
noted that it had reviewed the request for a new trial.  At the trial court’s invitation, defense
counsel for the new trial motion, Gregorio Roman, addressed the court, stating
that Vigeant was seeking new trial on three grounds:  ineffective assistance of counsel,
insufficiency of the evidence, and newly discovered evidence consisting of a
letter written by Hernandez.  Roman
stated there was clearly a failure to investigate Vigeant’s and Hernandez’s
psychological disabilities, although trial counsel, Cohn, was aware of
them.  With respect to Vigeant, Cohn did
not investigate his attention deficit disorder or his auditory deficit.  As support for this contention, Roman cited
the report by Dr. Harvey E. Dondershine and the affidavit of James D.
Gregory, a California attorney.  This
lack of investigation precluded labeling Cohn’s act or failure to act a
tactical decision or strategic choice. 
If Cohn had properly investigated, “he would have known that this mental
deficit would have risen to a possible defense,” and the result would probably
have been different.

            With
respect to Hernandez, Roman argued, Cohn failed to obtain his medical
records.  These records showed Hernandez
suffered from many psychiatric disorders. 
Cohn also failed to look into Hernandez’s seizure disorder.  If the neurological and neuropsychological
findings had been uncovered by Cohn and presented to the jury, they would have
affected the jury’s assessment of the issue of intent, leading to a different
result.

            In denying
the motion, the trial court cited salient portions of the evidence against
Vigeant and found it sufficient.  The
court found that the letter from Hernandez that was claimed to be newly
discovered evidence was not evidence—merely a letter in which Hernandez
accepted responsibility, which he had done at trial.  As for ineffective assistance of counsel, the
court stated that “[a]ll the things that is contained in defendant’s moving
paper is simply conclusionary and it would have made, in this court’s opinion,
no difference in results.  Therefore,
motion for new trial is denied.”

            >D. 
New Trial Motion Properly Denied

            Vigeant’s argument on appeal focuses on the alleged
ineffective assistance of trial counsel. 
The essence of Vigeant’s argument is that Cohn was aware of Vigeant’s
mental deficits, and the prevailing professional norms obligated him to
investigate these deficits, consult an expert, and introduce expert testimony
on the nature of Vigeant’s neurodevelopmental
disabilities.

            At the
close of the trial of Vigeant and Landers, the trial court held a >Marsdenhref="#_ftn3" name="_ftnref3" title="">^[3] hearing when Vigeant said he no longer wished
to be represented by Cohn, his retained counsel.  At the hearing, Vigeant voiced a multitude of
complaints, among them that Cohn did not acknowledge or address Vigeant’s
medical issues in the context of Vigeant’s ability to understand the trial
proceedings.  Vigeant said he had “ADD”
and “auditor processing disorder.”  Cohn
responded that he had never received any indication from Vigeant that Vigeant
did not understand what Cohn was telling him, what the charges and their
consequences were, and what the defenses were. 
Vigeant’s mother had told him that her son had ADD, but Cohn never saw
any evidence of it and did not see any problems with Vigeant’s understanding or
communicating with him about the case. 
Cohn stated he did not see how “the medical issue” was going to help
Vigeant’s case in any way during the trial “from a strategic defense standpoint.”  Cohn had not had any difficulty communicating
with Vigeant during jail visits or court sessions.  Cohn had not had any problems at all in
preparing a defense because of any href="http://www.sandiegohealthdirectory.com/">intellectual, mental or
emotional disabilities that Vigeant had.

            The trial
court denied Vigeant’s request to fire Cohn, and Cohn went on to represent
Vigeant at sentencing.  The trial court’s
refusal to allow Vigeant to fire Cohn resulted in a remand for resentencing on appeal.    

            Vigeant
also filed a petition for writ of habeas
corpus on the ground that he was denied effective assistance of counsel due
to Cohn’s failure to investigate Vigeant’s mental disabilities and retain an
expert and his failure to investigate Hernandez’s disabilities—the same grounds
on which he later sought a new trial. 
The record from Vigeant’s petition for writ of habeas corpus shows that
Cohn was informed of Vigeant’s medical history by Vigeant’s mother, Joanne
Scheer.  Scheer declared that she advised
Cohn that Vigeant had ADD and an auditory processing disability.  She expressed her concerns in the context of
Vigeant’s being able to understand what was being said in the courtroom and by
Cohn.  Scheer stated that she provided
Cohn with (1) copies of records from the Bay Area Research Institute, (2)
Vigeant’s high school individualized education plan (IEP), (3) a report from
Children’s Hospital in Oakland, California, and (4) an audiological evaluation
obtained through the John Muir Medical Center. 
Her stated purpose was for Cohn to take steps to help Vigeant’s
understanding at trial.  Cohn
acknowledged receipt of the information and told Scheer that Vigeant seemed to
understand Cohn.

            The records
Scheer mailed to Cohn are contained in Exhibit E of Vigeant’s habeas corpus
petition.  Vigeant’s 10th grade IEP
merely states that Vigeant had an auditory processing disability, had been
diagnosed with ADD, and recommended a plan of action. The evaluation obtained
through the John Muir Medical Center was performed when Vigeant was six and a
half years old.  The evaluation noted
multiple weak areas in Vigeant’s central auditory processing system either due
to developmental delay or some innate factor.

            The audiological
evaluation from the Children’s Hospital in Oakland took place when Vigeant was
eight years old.  The report stated that
Vigeant had exhibited auditory processing difficulties for linguistic
information, but his extremely short attention span could have confounded the
test results.  It was recommended that he
undergo a speech and language evaluation. 
The records note that Vigeant had a very short attention span.

            The Bay
Area Research Institute records are from 2003 through 2004, when Vigeant was 16
and 17 years old, and they document Vigeant’s participation in a pharmaceutical
clinical trial.  The classification of
“markedly ill” for Vigeant was based on symptoms reported by Vigeant and his
mother.  Dr. Kathleen Toups, who
conducted the clinical trial, wrote a letter in 2009 (after the verdicts in
Vigeant’s trial were returned) stating that attention deficit hyperactivity
disorder (ADHD) causes deficits in executive functioning  and that the impairment is not generally
outgrown.  This letter states that
Vigeant had a “high level of functional impairment” due to ADHD.  As we have noted, however, the record
indicates that Vigeant’s symptoms were self-reported.  The records consist mainly of a chronology of
Vigeant’s use of study medication, which appears to have been beneficial.

            Considering
the totality of the information Cohn received, we cannot conclude that trial
counsel was ineffective in not investigating Vigeant’s impairments
further.  “[I]f the record does not
preclude a satisfactory explanation for counsel’s actions, we will not, on
appeal, find that trial counsel acted deficiently.”  (People
v. Stewart (2004) 33 Cal.4th 425, 459.) 
Competent counsel, when presented with information that a client was
diagnosed in childhood with a central auditory processing deficit and ADD or
ADHD and that the client had participated in a clinical trial at the ages of 16
and 17, could reasonably conclude that his impairments would not rise to the
level of a viable defense.  As Cohn
informed the trial court, he had met with Vigeant 20 to 25 times.  He had gone over discovery with Vigeant and
discussed his version of events and defenses with him.  Furthermore, after high school Vigeant was
accepted into the Marine Corps at the age of 19 and was four months short of
his 21st birthday when the instant crimes were committed. 

            As for
Hernandez’s mental deficits, the jury heard Hernandez describe the extent of
his brain injuries and
the effects the injuries had on him.  At
trial, Cohn cross-examined Hernandez about the inconsistencies in his trial
testimony and his former statements with respect to his and the defendants’
intent on the night of the murder, as well as Vigeant’s actions and attitude on
the night of the shooting.  He also
pointed out these inconsistencies to the jury during argument.  He discussed Hernandez’s injuries and their
effect on him as a factor in his unreliable testimony about Vigeant and as the
sole motive for his shooting Pettigrew. 
Counsel made appropriate use of Hernandez’s injuries, and we do not
believe he was ineffective in not obtaining Hernandez’s medical records and in
not hiring an expert to analyze them.

            We do not
agree with Vigeant’s assertion that Cohn’s actions do not merit being
considered a tactical decision due to his failure to investigate Vigeant’s
medical history.  In the declaration of
Attorney James D. Gregory, which is essentially the same in the habeas petition
(Exhibit D) and the new trial motion, Gregory offers his opinion that an
attorney is unqualified to make a determination whether his client suffers from
a mental disorder, and Cohn failed to recognize the evidentiary significance of
Vigeant’s disability and understand how it provided a potential meritorious defense
to the charged offenses.  Likewise, Dr.
Dondershine expressed the opinion that trial counsel’s failure to hire an
expert meant that he failed to understand the relevance of the medical records
to the issue of legal intent, and he was unable to assess the weight to be
given the medical evidence in planning his defense strategy.  The records Cohn received from Scheer do not
support these opinions.  The information
provided to Cohn indicated that Vigeant went untreated for any mental disorder
between the ages of eight and 17. 
Vigeant then participated in a clinical trial for approximately seven
months and did not seek to continue medication after the clinical trial
ended.  He was then able to graduate from
high school and join the Marine Corps. 
“A decision not to pursue testimony by a psychiatric expert, when no
mental state defense seems likely, is not unreasonable under >Strickland.  [Citation.]” 
(Wilson v. Henry (9th Cir.
1999) 185 F.3d 986, 990.) 

            Given the
strong presumption that Cohn’s decision was reasonable and the deference paid
to counsel’s tactical decisions, “[a]n assessment of counsel’s performance does
not include the distorting effects of hindsight, but rather evaluates such at
the time of the claimed errors and in light of all the circumstances.  [Citation.]” 
(People v. Adkins (2002) 103
Cal.App.4th 942, 950.)  Reasonable
counsel might question the merits of a defense based on a disorder for which
Vigeant sought no treatment.  This was
evident from the medical records.  Cohn
did not need the aid of an expert to appreciate their significance or lack
thereof, especially since Vigeant exhibited no symptoms in his dealings with
counsel. 

            Moreover,
Vigeant cannot show he suffered prejudice from a failure to consult experts to
investigate Vigeant’s and Hernandez’s medical and psychiatric issues.  Vigeant contends he suffered prejudice
because, had the jury been able to view his participation in the crimes in the
light of his neuropsychiatric deficits, and had it been presented with a
medical reason to question the reliability of Hernandez’s testimony, it is
reasonably probable it would have rejected the prosecutor’s argument that
Vigeant was a full and equal participant. 
It would have rejected the idea that he had the required specific intent
in the charged offenses, or it would have determined that the People failed to
prove intent beyond a reasonable doubt. 
At the very least, he asserts, it is reasonably probable the jury would
have determined that the People failed to prove the special circumstances.

            With
respect to Vigeant, when examining prejudice in the context of ineffective
assistance of counsel claims based on a duty to investigate, we also look to
the strength of the evidence.  “[A]
verdict or conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support.”  (Strickland,
supra, 466 U.S. at p. 696.)  In our previous opinion in case No. B218366,
we set out the evidence against Vigeant and rejected his argument that
Hernandez’s testimony provided the only evidence of Vigeant’s intent, and that
the inconsistency of this testimony and insufficient corroboration resulted in
a mere suspicion of Vigeant’s guilt. 
Also, Vigeant’s telephone calls with Detective McMahon provided
substantial evidence that Vigeant was fully capable of understanding what was
said to him, even over the telephone. 
These conversations also showed he was capable of imparting false and
evasive information when asked about his connection with Pettigrew.  It is not likely that the jury would have
been persuaded that Vigeant did not fully appreciate the events in which he
participated on the night of the shooting if it had been informed that Vigeant
had been treated in his youth for ADHD and an auditory processing disorder.

            The
additional examination of Vigeant by Dr. Timothy Collister, a psychologist,
does little to bolster the notion that Vigeant was prejudiced by Cohn’s failure
to investigate.  Dr. Collister wrote a
report after examining Vigeant in preparation for the new trial motion.  This report is contained as Exhibit H in the
written motion.  Dr. Collister cites Dr.
Toups’s generalized comments about what ADHD can cause as part of the basis for his recommending a
neuropsychological evaluation of Vigeant prior to the hearing on the new trial
motion.  Dr. Collister also stated that
he believed Vigeant’s condition had remained stable over time.  Dr. Collister believed this indicated
Vigeant’s conditions were “experienced” at the time of the crime.  As we have pointed out, Vigeant had managed
to finish high school and become a Marine during this period of stability.  Given the fact that Vigeant received little
treatment for his conditions throughout his life and the fact that he was able
to function with these deficits, it is not reasonably probable that a jury
would have found Vigeant lacked the required intent at the time of the offenses
due to his conditions.

            With
respect to Hernandez, his medical records, as provided in the new trial motion,
do not add significantly to what he himself testified to, at least in the
context of the instant crimes.  As noted,
Hernandez himself testified at trial about his disabilities due to his brain
injury.  Hernandez said he lost a third
of his brain, which included the frontal left lobe and a part of the frontal
right lobe.  When asked how his injuries
affected him in terms of his mental abilities, Hernandez said he was very
compulsive and tended to do things he normally would not do.  He was also very emotional.  He processed information more slowly, and he
had less empathy for others.  He said he
was very dependent on alcohol and could not remember when certain conversations
with the defendants took place.  He
acknowledged it was difficult for him to recall what was said by the defendants
on the night of the shooting.  Reasonable
counsel could have determined that Hernandez’s testimony sufficiently exposed
his limitations as a witness to the jury, especially since Hernandez took
responsibility for the shooting. 

            Hernandez’s
medical records reveal little regarding any mental deficits he may have
suffered from as a result of the injury to his head.  Most of the entries involve his
rehabilitation after his injury and various physical problems, unrelated to his
injury, that he suffered over the years since 2004.  A report of a neuropsychological evaluation
in October 2004 states that Hernandez had intact perceptual and spatial skills,
language, attention, learning, and auditory memory ability.  Hernandez exhibited extremely strong skills
in his ability to recall a general fund of information and in visual memory
ability.  Cognitive flexibility was
somewhat weak but deemed likely to improve. 
This evidence would have given the prosecutor a strong counterpoint to
any defense expert testimony about Hernandez’s defects.  This evidence, combined with Hernandez’s
demeanor and frankness before the jury, leaves little possibility that his
testimony at the trial of Vigeant and Landers would have been discredited to a
greater degree than it already was. 
Furthermore, as we explained in our opinion in Vigeant’s and Landers’s
appeals, Hernandez’s testimony was substantially corroborated by independent
evidence.  (People v. Landers, supra,
B218366.)

            We
“‘reverse convictions on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose
for his act or omission.’”  (>People v. Zapien (1993) 4 Cal.4th 929,
980.)  In cases where a defendant claims
that defense counsel should have presented particular evidence, “[j]udicial
scrutiny of counsel’s performance must be highly deferential.  It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.  [Citation.]  A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’  [Citation.]  There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way.”  (Strickland,
supra, 466 U.S. at p. 689.)  “[E]ven ‘debatable trial tactics’ do not
‘constitute a deprivation of the effective assistance of counsel.’  [Citations.]” 
(People v. Miller (1972) 7
Cal.3d 562, 573-574.)

            On this
record, we believe counsel’s actions were reasoned tactical decisions, and
Vigeant has failed to affirmatively show prejudice.  Any presumed error on the part of Cohn in
failing to investigate Vigeant’s and Hernandez’s mental deficits is
insufficient to undermine confidence in the outcome of the trial.  The trial court did not err in denying
Vigeant’s motion for new trial, and Vigeant suffered no violation of his rights
under the Sixth and Fourteenth Amendments.

II.  Lack of Evidentiary Hearing and Refusal to
Appoint a Clinical Neuropsychologist

            A.  Vigeant’s Argument

            Vigeant
contends that the trial court abused its discretion by refusing to hold an
evidentiary hearing on his new trial motion and refusing to appoint a clinical
neuropsychologist to examine him and give an opinion about his mental
deficits.  According to Vigeant, such an
expert opinion was necessary to establish his ineffective assistance of counsel
claim.  Separately or cumulatively, these
errors denied him his rights to counsel, due process, equal protection, and the
right to presentation of a defense. 
Vigeant asserts that reversal is necessary because it is impossible to
measure the effect of the testimony he would have presented had he been able to
subpoena trial counsel and retain a neuropsychologist to examine him and to
testify at an evidentiary hearing.

            >B.  Relevant Authority

            “There is
simply no authority for the proposition that a trial court necessarily abuses
its discretion, in a motion proceeding, by resolving evidentiary conflicts
without hearing live testimony.”  (>Rosenthal v. Great Western Fin. Securities
Corp. (1996) 14 Cal. 4th 394, 414.) 
“California law affords numerous examples of a trial court’s authority,
in ruling upon motions, to resolve evidentiary disputes without resorting to
live testimony.”  (See >People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 201, and authority cited therein.) 

            Evidence
Code section 730 provides in pertinent part: 
“When it appears to the court, at any time before or during the trial of an action, that expert evidence is or
may be required by the court or by any party to the action, the court on its
own motion or on motion of any party may appoint one or more experts to
investigate, to render a report as may be ordered by the court, and to testify
as an expert at the trial of the action relative to the fact or matter as to
which the expert evidence is or may be required. . . . .”  (Italics added.)  “Evidence Code section 730 provides for
appointment of ancillary services at public expense for indigent criminal
defendants in noncapital cases only for purposes of defense at trial on the issue
of guilt.”  (People v. Stuckey (2009) 175 Cal.App.4th 898, 908.)  “On appeal, a trial court’s order on a motion
for ancillary services is reviewed for abuse of discretion.  [Citations].” 
(People v. Guerra (2006) 37
Cal.4th 1067, 1085, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; see also >Ake v. Oklahoma (1985) 470 U.S. 68, 77; >Stuckey, at p. 916.)

            C.  Proceedings Below

            After
reviewing the parties’ briefs and hearing argument regarding the need to hold
an evidentiary hearing, the trial court denied the request.  The court stated, “At this time, I am going
to rule that the court will exercise discretion, deny motion to have an
evidentiary hearing as to whether or not there was a ineffective assistance of
counsel.  But I did allow both parties to
submit written brief as to why a new trial should be granted, and I also have
reviewed your request as to why the court should grant a motion for new trial.>

            D.  No Abuse of Discretion or Error

            Vigeant contends that a hearing
was necessary to resolve material disputed issues of fact and to allow him the
opportunity to establish he was prejudiced by counsel’s failure to investigate
and consult and retain experts.  He adds
that the denial of an evidentiary hearing violated his right to due
process.  Vigeant acknowledges that,
although there is no case law requiring a trial court to hold an evidentiary
hearing when a new trial motion is based on ineffective assistance of counsel,
a trial court has the discretion to hold such a hearing when the new trial is
sought on the grounds of jury misconduct. 
(See, e.g., People v. Hedgecock
(1990) 51 Cal.3d 395, 415.)  Vigeant
urges that the court must have the same discretion to hold a hearing to resolve
material disputed issues relating to ineffective assistance of counsel.

            We agree
that the trial court had this discretion, but we conclude that the court did
not abuse its discretion.  >People v. Williams (1997) 16 Cal.4th 635
is instructive on this point.  In that
case, the defendant moved for a new trial, alleging jury misconduct and
presenting the declarations of three jurors who stated that the jury never
reached a verdict on the murder charges even though there were signed verdict
forms.  (Id. at p. 685.)  The trial
court did not find the declarations credible and denied the motion without
holding an evidentiary hearing.  (>Id. at pp. 685-686.)  The reviewing court found no “manifest and
unmistakable abuse in discretion” and stated that the trial court could resolve
any disputed factual issue without need for an href="http://www.fearnotlaw.com/">evidentiary hearing.  (Id.
at p. 686.)

            The same is
true in the instant case and is even more evident.  The trial court had heard all the evidence
during trial and had had the opportunity to observe trial counsel and Vigeant
in the courtroom.  The new trial motion
had many exhibits in support of Vigeant’s claim of ineffective assistance.  Cohn had the opportunity to explain his
actions during the posttrial Marsden
hearing, as discussed ante.  Thus, the material facts in this case were
adequately explained by the voluminous information before the court, combined
with its own observations.  The matter
was fully capable of being resolved on the record, and no evidentiary hearing
was necessary.  Given the great degree of
latitude accorded the trial court in these matters, there was no abuse of
discretion.  (People v. Williams, supra,
16 Cal.4th at p. 686; People v. Dennis
(1986) 177 Cal.App.3d 863, 873 [A defendant seeking a new trial must
“establish, by affidavit, oral testimony or
reference to the trial record, that his trial counsel was ineffective in some
manner and that counsel’s ineffectiveness prejudiced him.”  (Italics added.)]) 

            We also
conclude the trial court did not err by refusing to appoint the
neuropsychiatric expert that Vigeant requested. 
Even if there was error, Vigeant suffered no prejudice.  (People
v. Watson (1956) 46 Cal.2d 818, 836 [error in the admission or exclusion of
evidence warrants reversal of a judgment only if an examination of “‘the entire
cause, including the evidence,’” discloses the error produced a “‘miscarriage
of justice’”]; People v. Breverman
(1998) 19 Cal.4th 142, 173.)  It has been
held that “Evidence Code section 730 does not authorize the appointment of
experts after trial in connection with sentencing proceedings.  Nor do the federal or state Constitutions
entitle an indigent criminal defendant to improve his chances of a favorable
sentencing choice by having experts echo the arguments of defense
counsel.”  (Stuckey, supra, 175
Cal.App.4th at p. 905.) 

            Vigeant
argues that Stuckey applies narrowly
to sentencing proceedings as occurred in that case but not in the context of a
new trial motion, and Vigeant faults respondent for failing to respond to this
argument.  We believe it is not necessary
to determine the breadth of Stuckey’s
holding, since in the instant case, Vigeant suffered no prejudice from the lack
of another expert opinion, even one from a different type of specialist.  Such evidence would have been cumulative and
of insignificant benefit given the abundance of information on Vigeant’s mental
deficits in the record, including two reports by experts.  The issue before the court was clearly
presented on the affidavits and the results of tests already performed.  There was no reasonable probability that
there would have been a different result had the trial court allowed Vigeant to
consult a neuropsychiatrist to further refine the details of his impairments
for the court.  There was no abuse of
discretion and no violation of Vigeant’s constitutional rights. 

III.  Cruel and Unusual Punishment

            A.  Vigeant’s Argument

            According to
Vigeant, when his involvement in the instant crimes is viewed in light of his
neuropsychiatric deficits, his moral culpability is not that of a depraved
killer.  Therefore, his LWOP sentence
amounts to cruel and unusual punishment under the state and federal
Constitutions.

            B.  Proceedings Below

            On April 30,
2012, Vigeant filed a motion to strike the special circumstance as cruel and
unusual punishment under People v. Dillon
(1983) 34 Cal.3d 441, 488-489 (defendant’s crime reduced to second degree
murder after his immaturity, lack of criminal history, and character were taken
into account in determining he did not foresee the risk he was creating)
Vigeant relied on the assertion that the nature of the offense and the offender
showed that an LWOP sentence was disproportionate to his crime.  Vigeant attached his social history,
supporting documents, character letters, Dr. Collister’s psychological
evaluation, and other exhibits to the motion. 
Over the prosecutor’s objection, the trial court allowed Vigeant to
present several witnesses in support of the motion in addition to argument.

            In denying
the motion, the trial court stated, “Defendant has demonstrated nothing
pursuant to Penal Code section 1385.1 that defendant’s sentence would be cruel
and unusual.  I have heard lots of
testimony pursuant to the court’s discretion to allow defense to present some
mitigating factors as to why the court should strike the enhancement
allegation, special circumstances allegation. 
And one of the arguments that you make is that defendant should be
granted a mercy by the court.  David
Pettigrew never got mercy from anybody. 
He was shot, executed.  And Mr.
Vigeant was not a minor player, he made calls. 
He was there the night before[href="#_ftn4" name="_ftnref4" title="">^[4]]
and he was there during the actual killing of Mr. Pettigrew.  There is nothing in the evidence that
indicates that Mr. Vigeant was simply there and that his role was minor, at
best.”

            C.  Relevant Authority

            Defining
crime and determining punishment are matters uniquely legislative in nature,
and courts will not question the validity of legislatively enacted punishments
unless their “‘“‘unconstitutionality clearly, positively, and unmistakably
appears.’”’”  (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.)  “‘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.’  [Citations.]  ‘Only in the rarest of cases could a court
declare that the length of a sentence mandated by the Legislature is
unconstitutionally excessive. 
[Citations.]’  [Citation.]”  (People
v. Zepeda (2001) 87 Cal.App.4th 1183, 1213–1214 [rejecting cruel and
unusual punishment challenge to § 12022.53, subd. (d)].)  Because a defendant must overcome a
“‘considerable burden’” to show his sentence is disproportionate to his level
of culpability, findings of disproportionality have occurred with “‘exquisite
rarity in the case law.’”  (>People v. Em (2009) 171 Cal.App.4th 964,
972.)

            To succeed
on a challenge under the cruel or unusual
punishment provision of the California Constitution, the defendant must
show that the punishment is so disproportionate that it “shocks the conscience
and offends fundamental notions of human dignity.”  (In re
Lynch (1972) 8 Cal.3d 410, 424 (Lynch).)  A reviewing court must examine the nature of
the offense and/or the offender, with particular regard to the degree of danger
both present to society; compare the challenged punishment to punishments for
more serious crimes in the same jurisdiction; and compare such challenged
penalty with the punishments prescribed for the same offense in other
jurisdictions having a similar constitutional provision.  (Lynch,
at pp. 425-427.)

            Under the
federal Constitution, “three factors may be relevant to a determination of
whether a sentence is so disproportionate that it violates the Eighth
Amendment:  ‘(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.’”  (Ewing
v. California (2003) 538 U.S. 11, 22.) 
         D.  No Cruel and/or Unusual Punishment

            Vigeant’s
motion and his appeal rest on the first Lynch
factor—the nature of the offender and the offense.  Vigeant focuses on his mental deficits and
contends they made him significantly less culpable than the typical
offender.  Because of his disabilities,
he argues, he was more susceptible to peer pressure and was unable to comprehend
and foresee the consequences.  His
participation was inconsistent with his character, which does not reflect
dangerousness or a proclivity to violence.href="#_ftn5" name="_ftnref5" title="">^[5]  Therefore, the punishment imposed does not
fit the criminal.

            We agree
that Vigeant’s nature as attested to by his friends and family is not that of a
vicious killer.  Vigeant displayed a
different nature, however, on the night of the shooting, as evidenced by
Hernandez’s testimony and Vigeant’s telephone calls to the victim.  Vigeant showed he could be aggressive.  Even if he was following along with his
cousin, he made a choice to do so. 
Vigeant played with the gun on the long drive to Pettigrew’s apartment,
and he agreed that Pettigrew should be killed if he did not comply.  He participated in shouting at