P. v. Badena
Filed
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. NOE AGUAYO BADENA, Defendant and Appellant. | D046669 (Super. |
In re BADENA on Habeas Corpus. | D048552 |
APPEAL and petitions for writ of habeas corpus from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Judgment affirmed. Petitions denied.
An information filed in the
The jury acquitted Badena of the count 1 attempted murder charge, but found him guilty of the lesser included misdemeanor offense, brandishing a firearm, and also found him guilty of the count 2 first degree residential robbery charge. The jury found true the count 2 allegations that Badena personally inflicted great bodily injury and that he was armed with a firearm, but found not true the count 2 allegation that he personally and intentionally discharged a firearm.
The court sentenced Badena to a state prison term of 16 years, comprised of a three-year lower term for the first degree residential robbery conviction, 10 years for the personal use of a firearm enhancement (§ 12022.53, subd. (b)), and three years for the personal infliction of great bodily injury enhancement (§ 12022.7, subd. (a)). The court stayed the sentence on the misdemeanor brandishing a firearm conviction.
On appeal Badena asserts (1) the court erred by not sua sponte instructing the jury that the accident and self-defense instructions given with the attempted murder instructions also applied to the robbery charge; (2) the court erred by not sua sponte instructing the jury that the accident and self-defense instructions also applied to the count 2 enhancement allegations; (3) the court erred by overruling Badena's objection to the People's amendment of the count 2 charge from second degree robbery to first degree residential robbery; (4) the court violated the separation of powers doctrine by urging the People to amend the information to charge first degree rather than second degree robbery; (5) the court erred by imposing full consecutive terms for the enhancements; and (6) the court erred by failing to consider at sentencing mitigation letters he solicited from two jurors. We affirm.[2]
On his original and supplemental petition for writ of habeas corpus Badena contends that his trial counsel rendered constitutionally ineffective assistance of counsel by (1) failing to request accident and self-defense instructions to be given specifically as to the robbery count and its enhancements; and (2) by failing to request an instruction on theft as a lesser included offense to the robbery count, and by acquiescing in the court's statement that neither counsel desired such an instruction as there was no evidence to support such an offense.[3] In his second supplemental petition for writ of habeas corpus he asserts that the court's imposition of the 10-year enhancement for his personal use of a firearm in committing first degree robbery is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. The petitions are denied.
FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
The night of
After speaking with Badena, Fuentes drove to Badena's house in El Centro. When Fuentes arrived, he tried to get Badena's attention by whistling and throwing rocks at his bedroom door. Badena came out and they went over to the truck. Badena saw Johnson in the back seat of the truck and told Fuentes to leave him someplace else as he did not trust him. Fuentes removed the stereo speakers from the truck and then left. After several attempts to contact Badena about selling the stereo equipment, Fuentes returned to Badena's house about
Badena then told Fuentes to come into his bedroom and lock the door behind him. After they entered the room, Badena pointed a rifle at Fuentes and said, " Take everything out of your pockets." Fuentes took out a lighter and some change. Badena then told him to take off his glasses, watch and ring. Fuentes did so and put everything on the bed.
Badena told Fuentes to turn around. Fuentes asked Badena what he was doing and asked Badena not to shoot him. Fuentes had his hands up. Badena hit Fuentes two or three times on the side of the head when he tried to look back at him. Fuentes heard what sounded like a firecracker, and he spun around and fell to the floor. His legs felt numb and he could not get up.
Badena told him to leave the house. Fuentes, still on the ground, grabbed the door knob, but it was locked. Badena repeated the command, still pointing the rifle at him. Fuentes managed to unlock the door and pulled himself out of the room.
Badena then pointed the rifle at Fuentes's head and told him he would shoot him again if he did not leave. Badena fired the rifle again.
Fuentes asked Badena to drag him outside the gate because he could not move on his own. Badena pulled him by his leg to the sidewalk. Shortly thereafter, police and an ambulance arrived. Fuentes was flown by helicopter to a hospital in San Diego, where he remained for three days. He then spent another month rehabilitating at his mother's house. He still feels numbness in his legs and pain in his back and spine.
Officer Aaron Messick of the El Centro Police Department was dispatched to Badena's street at
When Officer Messick arrested Badena, he stated: " I'm sorry. It was self-defense."
B. Defense Case
Badena testified that he feared Fuentes because he was a convicted felon and a gang member. Fuentes had told him that he had participated in shootings and burglaries in Las Vegas and had a conviction for carrying a concealed weapon. Fuentes sold him the rifle used in the incident when Fuentes needed some money.
Fuentes called Badena around
Badena told Fuentes that he did not want to go to Mexicali. However, Badena agreed to get rid of speakers stolen from the truck so Fuentes would leave.
Fuentes left, but returned approximately 45 minutes to an hour later without his companion. Fuentes pressured him again to go to Mexicali to sell the stolen truck. Badena, along with his mother, told Fuentes to leave. Badena went back to bed.
Badena later awoke to see Fuentes going through some bins in his room. Thinking that he was being robbed, Badena grabbed his rifle and told Fuentes to put his hands up. Fuentes was laughing and said, " You won't shoot me."
Badena thought Fuentes probably carried a weapon, so he told him to empty his pockets. Fuentes taunted Badena by walking around with his hands behind his head. Badena told Fuentes to remove his watch and ring so that he would take Badena seriously. Badena did not intend to steal anything from Fuentes. Rather, he was going to return the property to Fuentes the next day after he had cooled down. Fuentes laid the ring and watch on the bed.
Fuentes then made a " quick move" while fumbling with the bedroom door knob. As Badena " racked a round," the rifle accidentally discharged. Badena pumped the rifle a second time, the rifle accidentally discharged again, and Badena almost shot himself in the foot. Badena pumped the gun a third time as it was pointing upwards, and it went off accidentally a third time.
Realizing that he had accidentally shot Fuentes, Badena helped him outside. Badena was crying and telling him to leave. Afterward, he explained to his mother, his sister, and the police that the shooting was an accident.
DISCUSSION
I. APPEAL
A. Failure To Instruct Sua Sponte That the Accident and Self-Defense Instructions Applied to the Robbery Count
Badena contends the court had a duty to instruct the jury that accident and self-defense instructions, applicable to his defense to the attempted murder charge, also applied to the robbery count. Badena asserts that this instruction was necessary based upon his defense that he only told Fuentes to turn over his personal items so Fuentes would take him seriously. This assertion is unavailing.
1. Background
The court instructed the jury under CALJIC No. 9.40 that in order to convict Badena of the robbery count they had to find: " 1. A person had possession of property of some value however slight; [¶] 2. The property was taken from that person or from [his] [her] immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear; and [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property." (Italics added.)
The court also instructed the jury under CALJIC No. 4.45, as follows: " When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor criminal negligence, he does not, thereby commit a crime." (Italics added.)
The court instructed the jury on self-defense against assault under CALJIC No. 5.30, as follows: " It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent."
The court also instructed the jury on the defense of an occupant's use of reasonable force to eject a trespasser to prevent damage to property or injury or death to the occupant under CALJIC No. 5.40: " The lawful occupant of a residence on real property has the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, the occupant may use reasonable force to eject the trespasser. The amount of force which may be used to eject the trespasser is limited by what would appear to a reasonable person, under the existing circumstances, to be necessary to prevent damage to the property or physical injury or death to the occupants." The court also instructed the jury under CALJIC No. 5.42, resisting an intruder on one's property, and No. 5.43, the force that may be used in defense of property.[4]
The court further instructed the jury under CALJIC No. 1.01 to " [c]onsider the instructions as a whole and each in light of all the others. [¶] The order in which the instructions are given has no significance as to their relative importance."
2. Analysis
" 'The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses . . . and on the relationship of these defenses to the elements of the charged offense. . . .'" (People v. Jones (1991) 234 Cal.App.3d 1303, 1314.) " '[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (Ibid.) Accordingly, the trial court has a duty to instruct on defenses legally available to the defendant.
However, a trial court has a duty to instruct sua sponte regarding a defense only if: (1) it appears the defendant is relying on the defense; or (2) there is substantial evidence supportive of the defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157, italics omitted; People v. Barton (1995) 12 Cal.4th 186, 197.)
We determine the correctness of jury instructions from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538.) We also presume that the jury is capable of following the instructions as given. (People v. Bradford (1997) 15 Cal.4th 1229, 1337.)
Badena's contention fails in the first instance as to the self-defense instruction because " [s]elf-defense is not, of course, a recognized defense to a charge of robbery." (People v. Costa (1963) 218 Cal.App.2d 310, 316.) This is because self-defense does not justify the taking of money or property from an aggressor, and the lawfulness of the force used to accomplish the theft is immaterial. Moreover, the act of taking money or property by force or fear is incompatible with self-defense as the person committing the robbery is in such a circumstance the aggressor.
Even if under some factual circumstances self-defense could be a defense to robbery, the court did not err in failing to instruct the jury specifically that the self-defense and accident instructions were applicable to the robbery count. The instructions referenced, ante, which were given generally and not limited to the attempted murder count, taken together, covered Badena's defense to the charge of robbery: that it was the result of accident or self-defense. They adequately instructed on his claim that (1) he pointed the gun at Fuentes because he thought Fuentes was robbing him; (2) he demanded that Fuentes remove his watch and ring because he wanted Fuentes to take him seriously; and (3) he never intended to permanently deprive him of his property. Therefore, the court had no sua sponte duty to give a pinpoint instruction that the accident and self-defense instructions applied specifically to the robbery count.
Badena contends that the general instructions on self-defense and accident were not adequate because of the order in which they were given, immediately after the instructions for attempted murder and its lesser included offenses and immediately before the instructions on robbery. However, as noted above, the jury was instructed under CALJIC No. 1.01 to " [c]onsider the instructions as a whole and each in light of all the others" and to disregard " [t]he order in which the instructions are given." In the absence of evidence to the contrary, we must presume that the jury followed these instructions. (People v. Bradford, supra, 15 Cal.4th at p. 1337; People v. Price (1991) 1 Cal.4th 324, 447 [no error where " instructions are given in immediate succession or are separated by other, unrelated instructions" ].) Badena points to nothing in the record indicating that the jury did not understand that the accident and self-defense instructions applied equally well to the robbery count.
Moreover, the court did not err in not instructing on self-defense or accident as to the robbery count because Badena's actions in demanding that Fuentes take off his watch and ring were incompatible with those defenses. He cannot claim the intentional act was an " accident," as he could with the firing of the gun, and it was not necessary to his safety or that of his property to take these items from Fuentes. Thus the court did not err in failing to instruct on accident and self-defense specifically as to the robbery count as there is no substantial evidence supportive of the defense and the defense is inconsistent with Badena's theory of the case. (People v. Breverman, supra, 19 Cal.4th at p. 157; People v. Barton, supra, 12 Cal.4th at p. 197.)
Even if the court did err in failing to instruct the jury specifically that the defenses of self-defense and accident applied to the robbery count, that error does not require a reversal because it is not reasonably probable that a different verdict would have been reached had the instruction been given. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.) The jury convicted Badena of exhibiting a firearm, a lesser included offense to the count 1 attempted murder charge. The jury instruction given by the court for that offense, CALJIC No. 16.290, specifically told the jury that it could not convict him if he was acting in self-defense while exhibiting the firearm.[5] Thus, the jury necessarily rejected any self-defense argument made by Badena.
Badena asserts that the jury did not necessarily reject self-defense based upon his conviction on the exhibiting a firearm charge because defense counsel " never argued to the jury that self-defense prevented them from finding guilt of misdemeanor brandishing because he wanted them to find his client guilty of a misdemeanor . . . ." (Italics added, boldface omitted.) However, this is simply incorrect. In closing argument, defense counsel told the jury, " Count 1 is attempted murder. Lessers are attempted voluntary manslaughter, assault with a deadly weapon, displaying a firearm. The point I wanted to make to you, ladies and gentlemen, is that all of these offenses are subject to the doctrine of self-defense. If you find that Mr. Badena acted in self-defense, Mr. Badena then is not guilty of any of those offenses whatsoever if he acts in self-defense. [¶] What you need to concentrate on, I believe, is he was acting in self-defense when he pulled that weapon on Mr. Fuentes inside of his bedroom."
Further, in instructing the jury on the elements of the robbery count, the court told the jury that to convict Badena they had to find that Badena committed the act though " force or fear" and with the specific intent to permanently deprive the victim of the property. Thus, in convicting Badena on the robbery count the jury necessarily rejected his claim that the robbery was the product of an accident or self-defense.
B. Failure To Instruct Jury Sua Sponte That theAccident and Self-Defense Instructions Applied to Robbery Charge Enhancement Allegations
Badena also asserts that the court erred by not instructing the jury, sua sponte, that the accident and self-defense instructions also applied to the enhancement allegations applicable to the count 2 robbery charge. We reject this contention.
The jury found not true the allegation under section 12022.53, subdivisions (c) and (d) that Badena personally and intentionally discharged a firearm, resulting in great bodily injury or death to Fuentes. Further, on the enhancement allegations that Badena inflicted great bodily injury (§ 12022.7, subd. (a)) and was armed with a firearm (§ 12022, subd. (a)(1)), accident was no defense because they did not require that Badena intentionally discharge the firearm.
Badena claims that the great bodily injury enhancement requires an intent to inflict great bodily injury, citing People v. Parrish (1985) 170 Cal.App.3d 336, 344. However, section 12022.7, subdivision (a) was amended in 1995 to eliminate the requirement that a defendant intend to inflict great bodily injury. (Stats. 1995, ch. 341, § 1; People v. Carter (1998) 60 Cal.App.4th 752, 755.)
It is true, as Badena asserts, that the section 12022.53, subdivision (b), personal use of a firearm enhancement does require an intentional brandishing of the firearm. " Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime." (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059, italics added.) In fact, the court instructed the jury under CALJIC No. 17.19 that " [t]he term 'personally used a firearm,' as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it."
It is not reasonably likely that the jury, given all the court's instructions, did not understand that the defenses of accident or self-defense applied to this enhancement. The jury found for Badena on the enhancement allegation that he personally and intentionally discharged a firearm, obviously finding that the discharge of the rifle was accidental or in self-defense. However, the jury found that his personal use of the firearm was intentional, rejecting a defense of accident or self-defense. The court did not err in failing to separately instruct the jury on accident and self-defense as to the enhancement allegations applicable to the robbery count.
C. Amendment of Count 2 to First Degree Residential Robbery
Badena asserts that the court erroneously overruled his objection to the amendment of count 2 of the information changing the charge from second degree robbery to first degree residential robbery. He contends there were insufficient facts to justify such a charge. This contention is unavailing.
Section 212.5, subdivision (a) provides in part: " [E]very robbery which is perpetrated in an inhabited dwelling house, . . . or the inhabited portion of any other building is robbery of the first degree." As Badena acknowledges, under this statute a defendant who lures a victim into his or her residence to rob him or her commits the crime of first degree residential robbery. (People v. McCullough (1992) 9 Cal.App.4th 1298, 1301; People v. Jackson (1992) 6 Cal.App.4th 1185, 1189-1191.)
In support of his contention that the court erred in allowing the amendment to change the charge to first degree residential robbery, Badena relies on his own testimony that he did not lure Badena into his bedroom, but rather awoke to find Badena rummaging through his property. This ignores the substantial contrary evidence supporting the charge. Fuentes testified that Badena came out of the house at approximately
Badena asserts the court violated the separation of powers doctrine (Cal. Const., art. III, § 3) by urging the prosecutor to amend the information to charge first degree rather than second degree robbery on count 2. We reject this contention.
1. Background
While the court was discussing jury instructions with counsel, the court indicated that " we have determined that the robbery, given the state of the facts, would be a first-degree robbery. It was in the residence of the defendant." The court went on to note that it was understandable the People originally charged it as second degree robbery because it did not occur in the residence of the victim, but pointed to case law that held it was first degree robbery regardless of whether the residence was the victim's or the perpetrator's. The court then asked the prosecutor, " [A]re you moving to amend?"
The prosecutor replied in the affirmative and acknowledged the robbery had been erroneously charged as second degree robbery due to his mistake " as to the case law on that." Counsel for Badena made a general objection to the amendment, but admitted that he was not prejudiced by it. The court ordered the information amended to conform to proof.
2. Analysis[6]
Section 1009 provides in part: " The court . . . may order . . . an amendment of an indictment, accusation or information . . . ." Thus, a trial court has the authority to amend the information to charge first degree residential robbery instead of second degree robbery, without a request by the prosecutor, inasmuch as such authority is expressly granted by statute. (People v. Carrasco, supra, 137 Cal.App.4th at p. 1057.) There thus can be no violation of the doctrine of separation of powers when a court merely asks a prosecutor if he or she wishes to amend an information to conform to evidence at trial.
Moreover, all the court did was inquire whether the People wished to amend the information, given facts that would support a charge of first degree burglary. The court did not improperly assume executive powers by such comments as, after a decision to prosecute has been made, the process which leads to a conviction or acquittal is essentially judicial in nature. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508-509.)
E. Imposition of Full Consecutive Terms on Enhancements
Badena asserts that the court erred in imposing full consecutive term enhancements for the section 12022.53, subdivision (b) and section 12022.7 enhancements. This contention is unavailing.
Section 1170.1 provides in part: " [W]hen any person is convicted of two or more felonies, . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)
The court in People v. Moody (2002) 96 Cal.App.4th 987 interpreted the above section's " specific enhancement" provision to require " reduction of the term of an enhancement, imposed in a consecutive subordinate term, to one-third of the enhancement term[, which includes] 'any specific enhancements applicable to those subordinate offenses.'" (Id. at pp. 992-993, italics omitted.) The Moody court further held that although the language of section 12022.53, " '[n]otwithstanding any other provision of law,'" would appear to require a full 10-year enhancement, because the Legislature amended section 1170.11 to provide that the term " specific enhancement" within the meaning of section 1170.1 includes the enhancements provided for in section 12022.53, this express command prevails over the more general language of section 12022.53 because the amended version of section 1170.11 is the later-enacted statute. (Moody, supra, 96 Cal.App.4th at p. 992.)
Here, the court properly sentenced Badena to full consecutive terms for the section 12022.53, subdivision (b) and section 12022.7 enhancements because section 1170.1, subdivision (a) only provides that a trial court must impose one-third the middle term for a subordinate felony conviction and its enhancements when consecutively sentencing a defendant for two or more felonies. Thus, the trial court in this matter could not impose one-third of the middle terms for Badena's enhancements because it was sentencing him for a single felony.
Citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith), Badena asserts that because those cases have treated sentence enhancements, other than prior convictions, as the functional equivalent of crimes in the sense that a defendant has a constitutional right to have jury find all facts supporting the enhancements beyond a reasonable doubt, the enhancements should be considered as additional felony convictions, making section 1170.1, subdivision (a) applicable.
However, as noted in Sengpadychith, supra, 26 Cal.4th at page 326, the United States Supreme Court in Apprendi did not consider an enhancement as the functional equivalent of a separate crime, but rather " treated the crime together with its sentence enhancement as the 'functional equivalent' of a single 'greater' crime." (Quoting Apprendi, supra, 530 U.S. at pp. 490-495 & fn. 19.)
Moreover, Apprendi and Sengpadychith only considered sentence enhancements the functional equivalent of a crime to the extent that, like a crime, they expose a defendant to increased punishment, and therefore, like a crime, the federal Constitution required all elements to be proven to a jurybeyond a reasonable doubt. (Sengpadychith, supra, 26 Cal.4th at p. 325.) They did not hold that once the jury made such a finding they were considered convictions of actual separate crimes for sentencing purposes. The court did not err in imposing full consecutive terms for the sentence enhancements.
F. Juror Mitigation Letters
Badena contends that the court abused its discretion in refusing to consider mitigation letters he solicited from two jurors at sentencing. We reject this contention.
1. Background
Along with his statement in mitigation filed prior to the sentencing hearing, Badena filed letters from two jurors that were solicited by his investigator. Both letters stated:
" This letter is not intended to retract my verdict at all. During the jury deliberations we were instructed not to consider penalty and therefore that was something that was never discussed among us during the jury deliberation process. However, I was approached by an investigator for the defense attorney, Mr. Breeze. I have been informed that Mr. Badena is now looking at a mandatory state prison [sentence] of anywhere between 10 to 18 years as a result of the conviction on Count 2 and the special findings that were made in connection thereto. I had no idea that Mr. Badena was going to be exposed to such a long sentence as a result of the verdict that we reached in his case. [¶] Based upon all the facts that were presented to us during the trial, I would urge and recommend the court to impose a much more lenient sentence on Mr. Badena. I thought that he was going to receive a probationary sentence or another year in jail as a result of his conviction. I believe that that would be a much more appropriate sentence than to send Mr. Badena to state prison for a lengthy period of time such as was represented to me by the defense investigator."
At the sentencing hearing the court refused to consider the letters, finding that consideration of such letters would set a " dangerous precedent," have a negative effect on " people's ability to serve as jurors in the future, and . . . discredit our system of justice."
2. Analysis
The court did not err in exercising its discretion not to consider the juror letters in sentencing Badena. The court properly instructed the jury, under CALJIC No. 17.42, that they were not to consider penalty or punishment in arriving at their verdict. Without such an admonition, " 'a juror may permit their consideration of guilt be deflected by a dread of seeing the accused suffer the statutory punishment.'" (People v. Nichols (1997) 54 Cal.App.4th 21, 23.)
If mitigation letters from jurors were to be considered in sentencing, they could, as the court noted, affect people's ability to serve as jurors in the future, now having the understanding that they are allowed to consider punishment as part of their role as jurors. Further, if jurors knew that they might be solicited about their opinions on punishment after a conviction, consideration of punishment might improperly arise during jury deliberations. A juror's role is clear: It is to make determinations of guilt, not penalty.
II. HABEAS PETITION
Paralleling his appeal, Badena contends on his habeas petition that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to request accident and self-defense instructions be given specifically as to the robbery count and its enhancements. Based upon our conclusion on Badena's appeal that the court did not err in failing to so instruct the jury, we also reject Badena's assertion that trial counsel rendered ineffective assistance of counsel for failing to request such instructions.
In a supplemental habeas petition, Badena asserts that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to request an instruction on theft as a lesser included offense to the robbery count and by acquiescing in the court's statement that neither counsel desired such an instruction as there was no evidence to support such an offense. In a second supplemental petition for writ of habeas corpus he asserts that the court's imposition of the 10-year enhancement for his personal use of a firearm in committing first degree robbery is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. These contentions are unavailing.
A. Ineffective Assistance of Counsel Claim
As the California Supreme Court has recognized, theft is a lesser included offense of robbery, if the element of force or fear is missing. (People v. Ortega (1998) 19 Cal.4th 686, 694, 695.) However, a lesser included offense instruction only need be given if there is substantial evidence to support such a charge. (People v. Hagen (1998) 19 Cal.4th 652, 672.)
Badena's own testimony demonstrates that there was insufficient evidence to support an instruction on theft, as a lesser included offense to the robbery count. Badena testified that he only pointed the gun at Fuentes and ordered him to empty his pockets and remove his watch and ring so Fuentes would take him seriously and leave the room. However, he also testified Fuentes did then take him seriously, obeying Badena's commands. Therefore, the evidence established that whatever Badena's professed motivation for doing so, he did take Fuentes's property through force or fear. Trial counsel did not render ineffective assistance of counsel by failing to request that the court instruct the jury that theft was a lesser included offense to robbery.
B. Cruel and Unusual Punishment Claim
1.
The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishment on a criminal defendant.[7] This prohibition contains only a narrow proportionality requirement in that it " forbids only extreme sentences that are 'grossly disproportionate' to the crime." [8] (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin), italics added, quoting Solem v. Helm (1983) 463 U.S. 277, 288, 303 (Solem).) In establishing the current standard, a divided Harmelin court retreated from its earlier decision in Solem in which the court held the Eighth Amendment contained a strict proportionality requirement. (See Solem, supra, 463
In Ewing, the Supreme Court affirmed a 25-year-to-life sentence imposed on a defendant convicted of stealing three golf clubs. Because the defendant was a career criminal, the court determined his sentence was " justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30, fn. omitted.) Following its own lead in Harmelin, the court only considered the " gravity of the offense compared to the harshness of the penalty." (Ewing, supra, at p. 28.) In weighing the gravity of the defendant's offense, the court noted " we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.)
Here, the crime committed by Badena was extremely serious. The jury's verdict reflects their finding that he shot Fuentes while brandishing a firearm in order to carry out a first degree robbery. The People's evidence showed that Badena lured Fuentes into his room in order to rob him at gunpoint. Badena shot Fuentes in the back while the victim begged him not to do so. Before shooting Fuentes, Badena hit him two to three times on the side of the head.
Badena's attempt to minimize the seriousness of the offense consists of his version of events presented in his testimony and self-serving statements he made in the pre-sentencing probation report. However, in convicting him the jury necessarily rejected his factual scenario.
Moreover, Badena's portrayal of himself as a minor offender ignores the fact that his criminal history consists of five convictions from 1995 to 1998, including battery on a police officer, and five previous probationary terms that failed to deter him from committing the current offenses.
Moreover, Badena's reference to mitigation letters he solicited from two jurors does not support his cruel and unusual punishment claim. As we explained, ante, the court properly refused to consider these letters in sentencing Badena as a juror's role is to determine guilt, not punishment.
Here, a threshold comparison of the crime and sentence does not lead to an inference of gross disproportionality. Therefore, we decline to conduct a comparative analysis of sentences under the second and third Solem factors andhold Badena's sentence is not so grossly disproportionate to the crime that it violates the Eighth Amendment.
B. California Constitution
1. Forfeiture of claim
Badena's claim that his sentence violates
However, in the interest of judicial economy, we consider the merits of his claim and hold his sentence does not violate the state's constitutional prohibition against cruel or unusual punishment.[10]
2. Merits of claim
Sections 17 and 24 of article I of the California Constitution set forth the same prohibition as that set forth in the Eighth Amendment. Article I, section 17 provides: " Cruel or unusual punishment may not be inflicted or excessive fines imposed." Section 24 of that article mandates that
In
a. The nature of the offense and/or the offender
When examining the " nature of the offense," the courts " are to consider not only the offense in the abstract− i.e., as defined by the Legislature− but also 'the facts of the crime in question' [citation]− i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.) The related inquiry into the " nature of the offender," is focused " on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Applying the foregoing principles, we conclude that Badena has failed to show his sentence is cruel or unusual considering the nature of his offense and his criminal history. As discussed above, the crime was very serious, in which Badena lured the victim into his room to rob him, then shot him in the back, inflicting serious bodily injury. Regarding the nature of the offender, Badena's criminal history demonstrates that conventional methods of punishment for his criminal acts do not deter him from reoffending. Despite several probationary periods, he continued to reoffend. As for Badena's state of mind, he admitted to the probation officer that he had a problem with methamphetamine use, but he failed to get help for the problem. He also did not demonstrate remorse following his conviction. After examining both Badena and the nature of his offense, we cannot say his sentence is grossly disproportionate to his culpability.
b. Intrajurisdictional comparison of punishments for different crimes
Badena does not assert on his habeas petition that his punishment is disproportionate to those punished for equal or more serious crimes in
c. Interjurisdictional comparison of punishments for same crime
" 'That
As Badena concedes, the Legislature's decision to impose the escalating firearm enhancements in section 12022.53 based upon increasingly serious type of firearm use in connection with designated felonies does not in and of itself violate constitutional proscriptions against cruel and unusual punishment. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19.) Indeed, Badena does not attempt to assert that these provision are unconstitutional when compared to other states' punishments for similar crimes.
After applying the Lynch analysis to Badena's case, we hold that his sentence is not " so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
DISPOSITION
The judgment is affirmed. The petitions are denied.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
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[1] All further statutory references are to the Penal Code.
[2] In a passing statement, Badena also asserts that " the failure to re-arraign appellant on the amended information was error." However, Badena makes no argument and cites no authority in support of this contention. Accordingly, we decline to address this issue.
[3] We ordered the habeas petition considered with the appeal and, for purposes of disposition, consolidated it with the appeal.
[4] Badena uses the term " self-defense" to describe his actions. However, the factual scenario he described in his testimony could well be described as defense of habitation or defense of property, under these instructions.
[5] CALJIC No. 16
