P. v. Torres

Filed 8/25/06 P. v. Torres CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant George Notchal Torres of second degree murder (Pen. Code, §§ 187, 190, subd. (a))^[1] and found that he personally discharged a firearm and caused the victim’s death within the meaning of section 12022.53, subdivision (d).

The court sentenced defendant to statutorily mandated prison terms of 15 years to life for second degree murder (§ 190, subd. (a)) and 25 years to life, consecutive, for the firearm discharge enhancement (§ 12022.53, subd. (d)).

Defendant appeals. He contends the mandatory 25-year-to-life term for the firearm enhancement constitutes cruel and unusual punishment under the California Constitution. We will affirm.

Initially, we find that defendant has forfeited this contention by failing to raise it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229 (Norman); People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) “Cruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender. ‘Dillon [People v. Dillon (1983) 34 Cal.3d 441 [ ]] makes clear that its holding was premised on the unique facts of that case. [Citation.] Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court. Here, the matter was not raised below, and is therefore waived on appeal.’ [Citation.]” (Norman, supra, at p. 229.)

Defendant argues the merits should be reached for various reasons, including “to forestall” a subsequent claim of ineffective assistance of counsel. For such reason, we will consider the issue. To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defendant has failed to demonstrate that he suffered prejudice from counsel’s failure to challenge the imposition of the 25-year-to-life term for the enhancement as cruel and unusual punishment.

People v. Martinez (1999) 76 Cal.App.4th 489 (Martinez) rejected the argument that section 12022.53 is unconstitutional: “Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately caused great bodily injury [or death].” (Id. at p. 495, fn. omitted.)

“[T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]” (Martinez, supra, 76 Cal.App.4th at pp. 497-498.)

“[T]he fact that the 25-to-life term is mandatory merely reflects the Legislature’s zero-tolerance toward the use and discharge of firearms during the commission of a crime. It does not render the penalties excessive as a matter of law in every case. As the United States Supreme Court has stated, ‘There can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.”‘ (Harmelin v. Michigan (1991) 501 U.S. 957, 995 [111 S.Ct. 2680, 2701, 115 L.Ed.2d 836].)” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.)

“A punishment . . . may violate the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972) 8 Cal.3d 410, 424 [ ].) Lynch suggests three areas of focus: (1) the nature of the offense and the offender; (2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)” (Norman, supra, 109 Cal.App.4th at p. 230.) Defendant cites the first area of focus only, relying on Dillon and arguing the mandatory sentence is disproportionate to the offense and the offender.

In Dillon, the 17-year-old defendant and his high school classmates trespassed into a marijuana field, planning to steal some of the marijuana for themselves. The defendant heard gunshots and believed that his classmates had been shot. The armed marijuana grower approached the defendant who, believing that he too would be shot, panicked and killed the man. (Dillon, supra, 34 Cal.3d at pp. 451-452, 482-483.) The defendant was sentenced to life imprisonment. (Id. at p. 487.) None of the defendant’s accomplices was sentenced to prison. (Id. at p. 488.) The defendant was unusually immature and had no prior criminal record. (Id. at p. 488.) The jury and the trial court were concerned that the sentence was excessive in relation to the defendant’s culpability. (Id. at p. 487.) The Supreme Court found the sentence cruel and unusual and reduced the offense from first degree to second degree murder and remanded. (Id. at p. 489.)

“’[T]he punishment provided by law may . . . run afoul of the constitutional prohibition against cruel or unusual punishment in article I, section 17, of the California Constitution.’ [Citation.] ‘[A] statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed.’ [Citation.] Because choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime. [Citation.]

In deciding whether the punishment is cruel or unusual, the court must determine whether the punishment ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] An examination of the nature of the offense and of the offender, ‘“with particular regard to the degree of danger both present to society”’ is particularly relevant in determining this issue. [Citation.] In assessing the nature of the offense, a court should consider the circumstance of the particular offense such as the defendant’s motive, the way the crime was committed, the extent of his involvement and the consequences of his acts. [Citation.] In analyzing the nature of the offender, a court should consider his ‘age, prior criminality, personal characteristics, and state of mind.’ [Citation.] ‘[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant’s individual culpability.’ [Citation.]

Reducing a sentence under Dillon ‘is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.] The reduction of a sentence because it is cruel or unusual ‘“must be viewed as representing an exception rather than a general rule.”’ [Citations.] ‘In such cases the punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe.’ [Citation.]” (People v. Felix (2003) 108 Cal.App.4th 994, 999-1000.)

The facts here are not unique like those in Dillon. The 61-year-old defendant shot and killed an unarmed 19-year-old victim, for no reason according to a couple of witnesses, and then fled the scene. Defendant initially denied knowing about the shooting, then denied doing it, and finally claimed self-defense. Defendant kept several firearms and several thousand rounds of ammunition in his house and carried a pistol on occasion in the neighborhood. Defendant had a criminal history which included a 1956 attempted arson, a 1960 involuntary manslaughter, a 1965 second degree burglary (reduced to a misdemeanor in 1995), and several misdemeanors. He was on informal probation at the time of the current offense. The 25-year-to-life term for defendant’s intentional discharge of a firearm causing the victim’s death (§ 12022.53, subd. (d)) is not cruel or unusual on its face or under Dillon; it does not shock the conscience. Defendant has failed to establish ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P.J.

HULL , J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.