Opinion
B226466
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY CARDONA, Defendant and Appellant.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA 043830)
APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Anthony Cardona was charged with and convicted of first degree murder (Pen. Code, § 187, subd. (a)) following the shooting death of Kwamena Addison on October 21, 2008 in Lancaster. It was further alleged and found to be true that appellant personally used a firearm and that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. On appeal, appellant contends: (1) insufficient evidence supported the finding of first degree murder; (2) CALCRIM No. 372, the flight instruction, created an unconstitutional presumption of guilt; (3) trial counsel was ineffective for failing to object to testimony from the gang expert concerning another similar crime; and (4) imposition of a 25-year to life sentence for the firearm enhancement constituted cruel and unusual punishment. Finding no merit in his contentions, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
All the evidence at trial came in during the prosecutor's case; the defense did not put on a separate case.
The prosecution's principal witness was the victim's brother, Kwesi Addison. Kwesi testified that on the day in question at approximately 2:30 p.m., he and Kwamena were confronted by two African-Americans males -- one of whom he later identified as appellant -- while walking their younger female cousin to the bus. The two males asked the brothers where they were "from." Kwesi gave different versions of his and his brother's response. Appellant and his companion walked toward a nearby apartment building, the Kirkland Apartments, and Kwesi's cousin boarded her bus. The brothers were walking across an undeveloped field when appellant came back, accompanied by five or six others.Kwesi picked up a metal pole; Kwamena picked up a rock. Appellant ran ahead, apparently carrying a weapon. He challenged the brothers to fight or "catch a fade." Kwamena gave the rock to his brother and fought with appellant. Almost immediately, Kwamena knocked appellant down and started punching him.
As the brothers share a surname, to avoid confusion, they will be referred to by their first names.
Kwesi referred to the two as men. Another witness, Sarah Lee, referred to them as boys. Appellant was 16 at the time. The age of his companion or companions is not known.
In one version, the brothers responded "nowhere, but we ain't scared of you" and "we're not punking nobody." In another, they acknowledged being members of a rival gang. In yet another, they said "Fuck you. Y'all better get up outa here."
At some points in his testimony, Kwesi said it was a smaller number.
Kwesi testified that appellant was "shuffling with something that looked like it could be some kind of weapon."
During the brief fistfight, Kwesi was watching the group who accompanied appellant to make sure they did not gang up on his brother. He looked down when he heard a "pop" and saw someone in the group look shocked. He saw his brother backing away, holding his arm and leg in an odd position. Kwesi started moving toward appellant until he noticed that appellant had a gun, a "deuce five" or .25 caliber semi-automatic. Appellant pointed the gun at Kwesi and appeared to be trying to fire it, but it did not discharge. Kwamena started to come back toward appellant. Appellant "did some handiwork with the gun" and, pointing it back at Kwamena, fired multiple rounds at him. Appellant then handed the gun to one of his companions and ran away, along with the rest of his group. Kwesi threw the metal pole he was holding and hit appellant in the back of the head. Kwesi and Kwamena were unable to find help in time and Kwamena died of his wounds.
Kwesi spoke with a detective shortly after the shooting, giving a false name. In a field lineup that included appellant and other African-American males, Kwesi identified appellant as the person who had fought with and shot his brother. Kwesi did not, however, identify appellant at the preliminary hearing. At trial, Kwesi initially testified he could not identify the person who fought with and shot his brother and could not remember what he looked like. At one point, he stated he did not believe appellant was that person. Kwesi also initially denied being a gang member and said he did not want to be a "snitch." On redirect, Kwesi testified he wanted to change his testimony and tell the truth for his mother's sake. He said he had lied about not being a gang member and not being able to recognize appellant as his brother's assailant. He testified that both he and his brother were Rollin' 60's Crips, and that they had identified themselves as members of that gang when the two African-American males, one of whom was appellant, first approached them and identified themselves as Crenshaw Mafia Bloods. He testified that appellant was the person who shot Kwamena.
Detective Richard Cartmill interviewed Kwesi on the day of the shooting. The tape of the interview was played in open court. During the interview, Kwesi denied being a gang member. He stated that two males approached him and his brother and said something about the Blood gang. Kwamena and one of the men started fighting. The person fighting Kwamena shot him multiple times and then pointed the gun -- a "deuce five" -- at Kwesi.
The only other percipient witness, Sarah Lee, was waiting for a bus in the area at the time of the shooting. She saw a group of four or five young African-American males talking, one of whom she later identified as appellant. She overheard the word "Blood." She went into a nearby store to get something to drink and to call a friend to pick her up. When she returned, she saw two of the males she had seen earlier -- she later learned they were brothers -- walking through an empty field. A young girl she had seen with them earlier was gone. Three young males, including appellant, approached the two brothers. Appellant was running ahead of the others. His companions were telling him to come back. Appellant said: "I just want to see if they want it." He and one of the brothers started fighting after the brother took off his shirt. Lee heard gunshots in succession and ran into the store. She never saw a gun and could not identify the shooter. At trial, Lee identified appellant as resembling the male she had seen fighting with one of the brothers on the day of the shooting.
In a field showup, Lee had told investigators that appellant was "definitely him."
Deputy James Speed received a call to come to the location of the shooting and once there, received descriptions of three suspects. He and his partner drove to the Kirkland Apartments, where they saw three males matching the descriptions. When the deputies approached the group, one of the males, later identified as appellant, ran away and jumped into the patio area of one of the apartments. When located and arrested, appellant was bare-chested and holding a red shirt in his hand. He had an injury to the back of his head which was still bleeding. While being taken into custody, he blurted out that the people inside the apartment where he had attempted to hide "had nothing to do with it."
Appellant was interviewed by Detective Paul Fournier. The tape of the interview was played in court. In it, appellant stated that he and his friend "Justin" were confronted by Kwesi and Kwamena, who asked where he and Justin were "from." The brothers were with a girl in a school uniform, who got on a bus. One of the brothers threw a rock at appellant. The brother then took off his shirt and dropped a stick he was carrying or handed it to his brother. Appellant and the shirtless brother started fighting. While they were fighting, appellant heard gunshots and got up and ran toward the apartments. He got hit in the back of his head by something and started bleeding. He took off his shirt because it was getting bloody. Appellant denied having a gun or knowing who shot Kwamena. He denied that Justin was anywhere near when he and Kwamena were fighting.
Investigators found four .25 caliber shell casings at the location of the shooting. Two .25 caliber bullets were removed from the victim's body. Officers found a .38 caliber revolver when they searched appellant's residence, but did not find the murder weapon. The autopsy revealed that Kwamena had been shot five times. There was sooting on the skin around a wound located under his right armpit. The presence of sooting indicated that the gun was in contact with his body when it was fired. That wound alone was fatal, although Kwamena would not have died immediately from it. There was no sooting or stippling discovered around the remaining four wounds. This was consistent with the weapon being more than 24 inches away when the bullets that caused those wounds were fired. Appellant's hands were tested for gunshot residue. There were particles on both hands, consistent with his having fired a weapon, being close to someone firing a weapon or personally handling a weapon.
Detective Cartmill, the prosecution's gang expert, testified that the Crenshaw Mafia Blood gang was well established in the Lennox and Inglewood area and that there were approximately two dozen members in Lancaster. Members of the gang have been involved in murder, robbery, narcotic sales, weapons possession, burglary and vandalism. The rivalry between the Bloods and the Crips, including the Rollin' 60's Crips, goes back to the 1970's. Attacking and killing rival gang members benefits the gang by increasing its status and enhancing its reputation. Detective Cartmill described specific crimes committed by admitted members of the gang -- a robbery in August 2007 and a robbery in February 2007. The latter occurred in the Antelope Valley. In 2007 and 2008, appellant admitted being a member of the gang and using the moniker "Baby Outlaw." Appellant has several gang tattoos.
At the conclusion of the presentation of evidence, defense counsel moved for dismissal of the first degree murder charge pursuant to section 1118.1. The court denied the motion.
Verdict and Sentencing
The jury found appellant guilty of first degree murder and found true that he personally and intentionally discharged a firearm, causing great bodily injury and death within the meaning of section 12022.53, subdivisions (b) through (d). The jury also found true that appellant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members.
At the sentencing hearing, defense counsel moved for judgment notwithstanding the verdict on the murder charge and on the first degree murder verdict. The court denied the motion. The court sentenced appellant to a term of 25-years to life for the murder and a consecutive term of 25-years to life for the section 12022.53, subdivision (d) enhancement, a total sentence of 50-years to life.
DISCUSSION
A. Premeditation and Deliberation
Appellant contends the evidence did not support the first degree murder verdict as there was insufficient evidence of premeditation and deliberation. We disagree.
An intentional killing is premeditated and deliberate "if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) "'Deliberation'" refers to "careful weighing of considerations in forming a course of action" and "'premeditation'" means "thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt." (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "The standard of review is the same in cases . . . where the People rely primarily on circumstantial evidence." (Ibid.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" (Ibid.) Put another way, "[t]he mere possibility of a contrary finding as to defendant's mental state does not warrant a reversal of the guilt judgment." (People v. Brady (2010) 50 Cal.4th 547, 565, italics omitted.)
The jurors were instructed that to convict appellant of first degree murder, they must conclude that he acted "willfully, deliberately and with premeditation"; that he acted willfully if "he intended to kill"; that he acted deliberately, "if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill"; and that he acted with premeditation "if he decided to kill before committing the act that caused death" The jurors were further instructed that "[a] decision to kill made rashly, impulsively or without careful consideration is not deliberate and premeditated"; that "[t]he test is the extent of the reflection[;]" that "[t]he length of time alone is not determinative"; and that "[t]he People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime."
The Supreme Court has "distilled certain guidelines to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation": "(1) planning activity, (2) motive, and (3) manner of killing." (People v. Perez, supra, 2 Cal.4th at p. 1125.) "'Analysis of the cases [shows] that [the Supreme Court] sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).'" (Ibid., quoting People v. Anderson (1968) 70 Cal.2d 15, 27.) However, these facts, "while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez, supra, at p. 1125.)
Here substantial evidence supported the finding of premeditation and deliberation. Appellant and his companion encountered the Addison brothers and learned they were members of a rival gang. Appellant left the scene and returned with additional allies and a weapon, running to confront the brothers as his companions tried to call him back. Appellant accepted Kwamena's offer to engage in a fistfight. But the fight had hardly begun when appellant drew his weapon and shot Kwamena point blank in the chest. Appellant then turned the weapon on Kwesi before finishing Kwamena off with multiple rounds. Appellant had ample time after encountering the brothers and determining their status as rival gang members for reflection and planning. The fact that he returned to the scene with a loaded weapon and additional backup supported the inference that his plan was murder even before he agreed to engage in a fistfight. Alternatively, the jury reasonably could have concluded that the plan to murder Kwamena developed during the fight, as Kwamena gained the upper hand. (See People v. Stitely, supra, 35 Cal.4th at p. 543 [the requisite reflection to support deliberation and premeditation "need not span a specific or extended period of time"]; People v. Koontz, supra, 27 Cal.4th at p. 1080 ["'"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." [Citations.]'"].)
During closing argument, the prosecutor argued that "[t]he fact that [appellant] pulled out a gun and shot not once, not twice, not three times, not four times, but five times [--] that shows that it's premeditated, willful and deliberate." Appellant argues that the number of shots is not proof of premeditation and deliberation. Here, however, Kwesi testified that after shooting Kwamena during the fight, appellant turned the gun on Kwesi, and then fired four more shots into Kwamena. The autopsy confirmed that of the five bullets recovered from Kwamena's body, one produced a contact wound, indicating the gun was fired at close range, while the remaining four were fired from at least two feet away. This evidence strongly suggested that appellant shot Kwamena once during the fight and then four additional times, indicating purposeful action on his part. (See, e.g., People v. Vorise (1999) 72 Cal.App.4th 312, 319 [firing fatal shots into the victim at close range after victim was wounded and slumped against wall supported that defendant made "cold, calculated decision" to kill and, therefore, that he acted with premeditation and deliberation]; People v. Thomas (1992) 2 Cal.4th 489, 517-518 [evidence that victims were killed by single contact shots to head and neck and that defendant's rifle was type that required manual loading before every shot supported inference that defendant deliberated before firing].) Moreover, even if the jury agreed with the alternate version of the shooting suggested by Lee's testimony, the other evidence of premeditation and deliberation -- appellant's actions in leaving the scene after ascertaining the brothers' identity as Crips, arming himself and hurrying back to confront them with additional backup before they could leave the area -- was sufficient to support the verdict.
B. CALCRIM No. 372
As discussed, appellant fled the scene immediately after the shooting and ran and hid from deputies when spotted at the Kirkland Apartments. Accordingly, the jury was instructed pursuant to CALCRIM No. 372: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." Appellant contends that the instruction allowed the jury to presume guilt based on evidence of flight, thus invading the jury's province and lowering the prosecution's burden of proof. We conclude the instruction did not create an impermissible inference.
In People v. Mendoza (2000) 24 Cal.4th 130, the Supreme Court approved the similar language of CALJIC No. 2.52, which provides: "'The flight of a person immediately after the commission of a crime, or after he is accused of the crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.'" (24 Cal.4th at p. 179.) The court rejected the defendant's contention that the instruction violated his right to due process by creating an unconstitutional permissive inference: "'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citations.] This test permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt. Thus, . . . the flight instruction does not violate due process.'" (Id. at p. 180.)
The reasoning of Mendoza was applied to CALCRIM No. 372 in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154. There, the defendant similarly contended the phrase in CALCRIM No. 372 informing the jury that flight "'may show that [the defendant] was aware of his guilt'" impermissibly presumed the existence of guilt and lowered the prosecution's burden of proof. The defendant contended the instruction should have simply stated that flight may be "considered" in "deciding the question of his guilt or innocence" (the words of CALJIC No. 2.52) or that flight immediately after the commission of a crime indicates "'a consciousness of guilt'" (the Supreme Court's language in Mendoza). The court concluded that "'awareness'" and "'consciousness'" were synonymous, and that, therefore, the inference permitted by the instruction "pass[ed] constitutional muster." (151 Cal.App.4th at pp. 1158-1159, italics omitted.)
In People v. McGowan (2008) 160 Cal.App.4th 1099, the court concluded that the analogous differences between CALCRIM No. 362, which permits the jury to infer "aware[ness] of . . . guilt" if the defendant made a false or misleading statement relating to the charged crime, and CALJIC No. 2.03, which permits the jury to infer "consciousness of guilt" if the defendant made a "willfully false or deliberately misleading statement concerning the crime or crimes for which he is now being tried," were insignificant. The court noted that the Supreme Court "has consistently upheld CALJIC No. 2.03 against various and sundry attacks" and that "[a]lthough there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362 . . . , none is sufficient to undermine our Supreme Court's approval of the language of these instructions." (160 Cal.App.4th at pp. 1103, fn. 3, 1104.) The instruction "properly left it for the jury to determine whether defendant's statement to police was false or deliberately misleading, and if so, what weight should be given to that evidence." (Ibid.)
We agree that the Supreme Court's decision in Mendoza provides the definitive framework under which to evaluate CALCRIM No. 372. As the instruction permits the jurors "to decide the meaning and importance of [the] conduct" and informs the jurors that "evidence that the defendant fled . . . cannot prove guilt by itself," the instruction does not create an impermissible inference or lessen the prosecutor's burden of proof. That the instruction uses the everyday word "aware" rather than its more formal synonym "conscious" or "consciousness" does not render the instruction constitutionally defective.
C. Gang Expert Testimony
1. Background
When examining Detective Cartmill, the gang expert, the prosecutor asked whether the detective was aware of a situation in which a fight between gang members escalated to the point weapons were used. Defense counsel objected on relevance and foundational grounds. The court sustained the foundation objection. To lay a foundation, the prosecutor asked whether the detective had investigated cases where gang fistfights had escalated and, after receiving an affirmative response, asked the detective to describe "the spectrum of violence" that could escalate from a fistfight. The detective responded: "Well, I have seen a simple fistfight escalate into a . . . beat down, [where] one person is basically in the hospital just from a fight . . . where other members of a gang would jump in. [It] would start off as a fight between two people, but other members of the gang happened to be there . . . and they would jump in and assist until a person . . . ends up in the hospital. [¶] . . . beat[en] to death or to near death. [¶] I have also seen where a fistfight will escalate into a shooting . . . -- most commonly where . . . another member of the gang happened to be there, and a member of a gang is in a fight and somebody takes out a gun and will shoot the person that their member of the gang is fighting with. [¶] But I have also [heard] where for whatever reason, somebody who happens to have a gun on him decides he only wants to get into a fight right now. But then it escalates to taking out the gun and shooting somebody."
Detective Cartmill was next asked to describe a typical response of a gang member who is fighting a rival gang member and losing. Defense counsel objected on foundational and lack of personal knowledge grounds. The prosecutor elicited that Detective Cartmill had investigated or assisted in investigating "a couple" of cases where a member of a gang was involved in and losing a fight. Detective Cartmill explained that in some such situations the response was to "escalate the violence in some way." Asked what he meant by "escalation," the detective described a specific case he was in the process of investigating where two rival gang members ran into each other at a party, began a fight, and the gang member losing the fight took a gun out and shot his rival.
Appellant contends defense counsel was ineffective for failing to raise a "potentially meritorious" objection to that part of the detective's testimony in which he described the specific facts of the unrelated case under investigation. Appellant asserts that by testifying concerning an unrelated incident in which a gang member who was losing a fistfight pulled out a gun and shot his rival, Detective Cartmill "effectively usurped the jury's critical factfinding role" because his testimony was "the equivalent of telling the jurors that a shooting was the expected response of a gang member who is losing a fistfight to a rival . . . the very question the jury needed to decide in order to assess appellant's guilt or innocence with respect to the crime he was charged with."
2. Analysis
"'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is '"sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."' (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang (2011) 52 Cal.4th 1038, 1044, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617.) "In cases where a gang enhancement is alleged or a substantive gang crime is charged, expert testimony regarding the 'culture, habits, and psychology of gangs' is generally permissible because these subjects are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) "For example, an expert may properly testify about the size, composition, or existence of a gang; 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.'" (Ibid.)
Although an expert may testify in the form of an opinion concerning the ultimate issue to be decided by the trier of fact, expert testimony regarding guilt or innocence is generally improper. (People v. Vang, supra, 52 Cal.4th at p. 1048.) "'The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] "Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt."'" (Ibid., quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; see, e.g., People v. Killebrew (2002) 103 Cal.App.4th 644, 652, 658 [expert's testimony that "when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun" inadmissible because testimony "simply informed the jury of [the expert's] belief of the suspect's knowledge and intent on the night in question, issues properly reserved to the trier of fact"].)
We disagree with appellant's contention that Detective Cartmill's testimony concerning the other gang-related fistfight and shooting was objectionable because it was tantamount to expressing the opinion that appellant was guilty of murder. To the contrary, the expert's testimony, taken as a whole, conveyed information to the jury that supported the opposite conclusion. Detective Cartmill was asked to describe the "spectrum of violence" that can result from a fistfight between gang rivals. He essentially responded that sometimes other gang members join in and one of the fighters ends up severely beaten, sometimes a gang member watching the fight shoots one of the fighters, and sometimes the gang member who is losing the fight shoots the other fighter. With respect to the latter possibility, the detective was aware of only one case in which that might have occurred.Detective Cartmill's testimony thus conveyed to the jurors that of the possible outcomes of the fistfight, the one advocated by the prosecution -- that the losing fighter shot the other -- was the least likely. Assuming the inquiry was objectionable, we cannot deem the testimony prejudicial or fault trial counsel for failing to object on the appropriate ground. (See People v. Earp (1999) 20 Cal.4th 826, 878, quoting Evid. Code, § 353, subd. (b) ["We do not reverse a judgment for erroneous admission of evidence unless 'the admitted evidence should have been excluded on the ground stated and . . . the error or errors complained of resulted in a miscarriage of justice."]; People v. Torres (1995) 33 Cal.App.4th 37, 48 [in evaluating claim of ineffective assistance of counsel, the failure of counsel to make objections is generally deemed "a matter of trial tactics which appellate courts will not second-guess"].)
According to the testimony, that case was still under investigation at the time of trial.
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D. Cruel and Unusual Punishment
Appellant contends that imposition of a consecutive term of 25-years to life for the section 12022.53, subdivision (d) enhancement constituted cruel and unusual punishment. This provision provides for a mandatory consecutive term of 25-years to life whenever a defendant is convicted of an enumerated felony, including murder, and the defendant personally and intentionally discharges a firearm that proximately causes great bodily injury or death. Appellant argues the statute is constitutionally defective because "it does not recognize significant gradations of culpability depending on the severity of the current offense, fails to take mitigating factors into consideration, and arbitrarily imposes severe punishment in cases involving criminal use of a gun as compared to the use of other dangerous or deadly weapons."
This court rejected a nearly identical contention in People v. Martinez (1999) 76 Cal.App.4th 489, 493-495, where we stated: "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 statute . . . 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. . . . Appellant contends that within the confines of subdivision (d), significant variations in the degree of great bodily injury are conceivable, which the statute gives no discretion to consider. This does not render the statute unconstitutionally excessive. Lines must be drawn somewhere, and the Legislature has reasonably drawn the line at great bodily injury. The fact that subdivision (d) leaves no additional room for trial court discretion based on different gradations of great bodily injury does not render the punishment cruel or unusual." (Ibid., fn. omitted.) We see no reason to reconsider the views expressed in Martinez.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.