Filed 4/30/18 P. v. Winters CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JACOB PAUL WINTERS,

Defendant and Appellant.


E067272

(Super.Ct.No. INF1600342)

O P I N I O N


APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Jacob Paul Winters, guilty as charged of the first degree felony murder of Hector Perez. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found a robbery-murder special-circumstance allegation true (§ 190.2, subd. (a)(17)), but found not true an allegation that defendant personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)). Defendant was sentenced to life without the possibility of parole (LWOP) for the murder, the mandatory sentence based on the robbery-murder special-circumstance finding. (§ 190.2, subd. (a)(17).)
Defendant claims: (1) California’s special circumstance statute, section 190.2, the robbery-murder special-circumstance finding, and his resulting LWOP sentence violate the Eighth Amendment’s ban on cruel and unusual punishment because the jury did not find the murder was intentional; and (2) his “right to jury nullification” was violated when the jury was instructed it could not consider his potential punishment, namely, that he would be sentenced to LWOP if the jury found him guilty of the murder and found the special circumstance allegation true. Based on settled California and federal Supreme Court precedent, we reject these claims and affirm the judgment.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
On March 21, 2016, in a parking lot next to a Sonic restaurant in Cathedral City, Perez was sitting in the driver’s seat of his parked car with a passenger, expecting to meet and sell marijuana to a girl, when two men approached Perez’s car. Perez’s car windows were open. One of the two men reached into Perez’s car through the open driver side window and tried to turn off the ignition. Perez wrestled with the man, pushing him back and telling him to stop.
Meanwhile, the second man—whom Perez’s passenger and the girl identified as defendant—walked to the passenger side of Perez’s car, said “‘Give me all your shit,’” and pointed a rifle at Perez’s passenger through the open passenger side window. Perez reached over with his right hand and pushed the rifle away from his passenger. As he did so, the rifle discharged, hitting Perez in his right shoulder. Perez drove away and his passenger called 911. Perez later died at a hospital from his gunshot injury.
B. Defense Evidence
Defendant presented an alibi defense. Through his testimony and two other witnesses, he claimed he was at home at the time of the crimes and was not the person who attempted to rob, and shot, Perez.
III. DISCUSSION
A. Defendant’s Eighth Amendment Claim Lacks Merit
Defendant claims California’s special circumstance statute, section 190.2, violates the Eighth Amendment’s ban on cruel and unusual punishment because it allows an LWOP sentence to be imposed on an actual killer (such as himself) without a finding that the killer acted with intent to kill. He argues that section 190.2, the jury’s robbery-murder special-circumstance finding (§ 190.2, subd. (a)(17)), and his resulting LWOP sentence, are contrary to contemporary values, the laws of a majority of states, and do not serve the legitimate penological purposes of retribution and deterrence.
We reject this claim based on settled precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court has recently addressed whether the special circumstance statute violates the Eighth Amendment’s proportionality guarantee, and has “repeatedly held that when the defendant is the actual killer, neither intent to kill nor reckless indifference to life is a constitutionally required element of the felony-murder special circumstance.” (People v. Jackson (2016) 1 Cal.5th 269, 347; see, e.g., People v. O’Malley (2016) 62 Cal.4th 944, 999; People v. Contreras (2013) 58 Cal.4th 123, 163-164.) Additionally, “[t]he United States Supreme Court has made clear that felony murderers who personally killed may properly be subject to the death penalty in conformance with the Eighth Amendment . . . even where no intent to kill is shown.” (People v. Belmontes (1988) 45 Cal.3d 744, 794, citing Tison v. Arizona (1987) 481 U.S. 137, 152 (Tison).)
In Tison, the high court held that its Eighth Amendment proportionality jurisprudence does not prohibit a death sentence against a defendant who is not the actual killer and did not intend to kill, but where the defendant’s participation in the felony that resulted in the killing is “major” and the defendant’s “mental state is one of reckless indifference to the value of human life.” (Tison, supra, 481 U.S. at p. 152.) Tison observed: “A narrow focus on the question of whether or not a given defendant ‘intended to kill’ . . . is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murders . . . . [S]ome nonintentional murderers may be among the most dangerous and inhumane of all— . . . the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.” (Id. at p. 157.)
The record here shows that, by pointing the rifle at Perez’s passenger, defendant acted with “utter indifference” to the value of human life and that the attempted armed robbery may have had the “unintended consequence” of killing Perez. (Tison, supra, 481 U.S. at p. 157.) Thus, defendant’s Eighth Amendment challenge to section 190.2, the jury’s robbery-murder special-circumstance finding (§ 190.2, subd. (a)(17)), and defendant’s resulting LWOP sentence, fail under Tison and its progeny, including our state high court precedent (Tison, supra, at pp. 152, 157-158; e.g., People v. Contreras, supra, 58 Cal.4th at p. 163 [“The felony-murder special circumstance in section 190.2[, subdivision] (a)(17) is valid absent any requirement that a defendant who actually killed during an enumerated felony have acted with intent to kill.”]). Defendant advances no persuasive reason to revisit these controlling, long-settled precedents.
B. The Jury Was Not Required to Be Instructed That It Could Consider Defendant’s Potential Punishment, or LWOP Sentence, in Reaching Its Verdicts
Defendant claims the court deprived him of his Sixth Amendment right to a jury trial by instructing the jury that “it could not consider penalty and thus, affirmatively interfering with his right to jury nullification.” (Capitalization omitted.) We reject this claim.
“[I]n cases not involving the death penalty, it is settled that punishment should not enter into the jury’s deliberations.” (People v. Engelman (2002) 28 Cal.4th 436, 442.) It is also settled that the Sixth Amendment right to a jury trial does not include a “right to jury nullification.” Rather, “jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is ‘unable to perform his [or her] duty’ as a juror (§ 1089) and may be discharged.” (People v. Williams (2001) 25 Cal.4th 441, 449-463.) “Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law.” (Id. at p. 463.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

McKINSTER
J.