Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge, Super. Ct. No. VCF136137
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
Defendant challenges his sentence, contending it amounts to cruel and unusual punishment under both the California Constitution and the United States Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of our opinion in defendant’s prior appeal (People v. Contreras (Apr. 18, 2008, F051645) [nonpub. opn.]), on which both parties primarily rely as the basis for their recitation of the facts surrounding the offense. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
After someone shot at defendant’s family residence, defendant and other Sureno street gang members concluded members of the rival Norteno gang were responsible. At defendant’s request, Pablo Salazar, another Sureno gang member, obtained a sawed-off shotgun and brought it to defendant’s house, where gang members passed it around; on October 31, 2003, they discussed getting “payback” for the shooting by stealing a car, finding Nortenos, and shooting at them. That night, defendant borrowed a truck from codefendant Lucio Delgadillo; with codefendants Salazar and Alberto Corona as passengers, defendant drove past a house where a Halloween party was taking place. They thought they recognized Nortenos among the partygoers; after driving by the house a couple more times, Salazar fired the shotgun at a group of people standing close together outside the house. Javier Espindola was struck in the face and permanently blinded in both eyes; Lorenzo Ruiz was struck in the face and permanently blinded in one eye; Edward Alonzo was struck in the shoulder. Defendant fled to Mexico; he returned 15 months later and voluntarily surrendered to police.
Defendant was convicted of three counts of conspiracy to commit murder (Pen. Code, §§ 182, 187), three counts of attempted murder (§§ 664, 187), two counts of mayhem (§ 203), one count of permitting another to shoot from a vehicle (§ 12034, subd. (b)), and three counts of assault with a firearm (§ 245, subd. (a)(2)); gang and firearm enhancements were found true. Defendant was sentenced to a total indeterminate sentence of 145 years to life. He received three consecutive terms of 25 years to life for the three conspiracy counts, plus consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancements on two of those counts, and a consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement in the third. On the attempted murder counts, he was sentenced to concurrent terms of life with the possibility of parole, plus consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancements on two counts and a consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement on the third. The sentences on the remaining six counts were stayed pursuant to section 654. Defendant appealed and this court modified the judgment to strike two of the conspiracy convictions, finding there was a single conspiracy.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was resentenced. On the single conspiracy count, he received a sentence of 25 years to life with a consecutive term of 25 years to life for the 12022.53, subdivision (d) enhancement, for a total of 50 years to life. He received a concurrent term on each of the three attempted murder counts: life with the possibility of parole on each count, with a consecutive 25 years to life term for the section 12022.53, subdivision (d) enhancement on two of the counts and a consecutive term of 25 years for the section 12022.53, subdivision (c) enhancement on the third. The sentences on the remaining counts were stayed pursuant to section 654.
Defendant appeals, contending the sentence of 50 years to life constitutes cruel and unusual punishment under the California Constitution and the Eighth Amendment of the United States Constitution.
DISCUSSION
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishments. It prohibits “‘only extreme sentences that are “grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23 (lead opn. of O’Connor, J.).) The California Constitution proscribes “cruel or unusual punishment.” (Cal. Const., art. I, § 17.) This prohibition may be violated if a punishment is “‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.) “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496 (Martinez).)
In determining whether a punishment is cruel or unusual, the court must consider the nature of both the offense and the offender. (Martinez, supra, 76 Cal.App.4th at pp. 493-494.) “‘To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1426-1427.) The court must give great deference to the penalty prescribed by the Legislature; the Legislature “is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches.” (Martinez, supra, 76 Cal.App.4th at p. 494.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (Ibid.; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73 [“the gross disproportionality principle … [is] applicable only in the ‘exceedingly rare’ and ‘extreme’ case”].)
We consider the circumstances of the offense. The motive for defendant’s offense was revenge. Defendant and his fellow gang members wished to pay back unknown persons who had shot at defendant’s residence by randomly shooting at those they believed to be rival gang members. Defendant was heavily involved in planning and carrying out the offense. He asked Salazar to obtain a gun, which Salazar did; he discussed with other Surenos how they would pay back the Nortenos they believed had shot at his house. He borrowed a truck from Delgadillo and drove it past the Halloween party more than once, with Salazar, armed with the shotgun, as a passenger. Without warning or provocation, Salazar shot at people attending a Halloween party. Two suffered permanent, disabling injuries; a third suffered a more minor injury.
As to the personal characteristics of defendant, the probation report indicates that at the time of the offense, defendant was five days short of his 19th birthday. He had been involved in gangs since seventh grade. He began using alcohol and marijuana at age 12 and methamphetamine at age 14. He had an 11th grade education and was employed for an orchard spraying company. Defendant had previously been placed on juvenile probation for burglary and being under the influence of a controlled substance; he violated that probation and was placed in a residential drug treatment program that he failed to complete. He fled to Mexico after the offense, but returned and surrendered to law enforcement 15 months later.
We do not find this to be one of those rare cases in which the punishment was grossly disproportionate to the crime of which defendant was convicted. Defendant was convicted of conspiracy to commit murder and three counts of attempted murder, among other offenses. Defendant actively participated in the planning and execution of the offenses. He had a long-term gang affiliation, which was a major factor in the commission of the crimes. His conduct posed a serious danger of death or great bodily injury to innocent bystanders as well as rival gang members.
Defendant contends the facts of his case are similar to those in People v. Dillon (1983) 34 Cal.3d 441(Dillon), where the court found that punishing defendant for first degree felony murder under the circumstances of that case amounted to cruel and unusual punishment. In Dillon, the defendant was a 17-year-old high school student. After learning Dennis Johnson and his brother were growing marijuana on their farm, Dillon and two companions went to investigate and try to take some of the marijuana. While they were there, Johnson approached them with a shotgun; he told them to get off the property and warned them that if they returned, he might shoot them. (Id. at p. 451.) Dillon subsequently recruited several classmates and planned to “‘rip off’” the marijuana; the boys considered various ways of dealing with Johnson, and Dillon suggested they “‘[h]it him over the head or something. Tie him to a tree.’” (Ibid.) Dillon made a map of the farm; he and seven classmates armed themselves – Dillon with a.22-caliber semi automatic rifle, the others with shotguns, a baseball bat, and a knife – and took tools for harvesting the marijuana. They split into four pairs and approached the farm. (Ibid.) One of Dillon’s companions accidentally discharged his shotgun twice. (Id. at p.452.) Dillon became concerned that one of his friends might have been shot. (Id. at p. 482.) The boys heard someone coming behind them; Johnson appeared, carrying a shotgun. He shifted the shotgun’s position and Dillon thought Johnson was preparing to shoot them. Dillon raised his rifle to his waist, pointed it in Johnson’s direction, and began firing. He testified he fired without thinking, because he was afraid Johnson was going to shoot him. (Id. at pp. 482-483.) Johnson fell, and the boys fled. Johnson suffered nine bullet wounds and died several days later. (Id. at p. 452.)
Dillon was charged with felony murder – murder in the course of an attempted robbery. By statute, all felony murders were first degree murders, punishable by death or life in prison with or without the possibility of parole. (Dillon, supra, 34 Cal.3d at pp. 463, 466, 472, 477.) Dillon was tried as an adult. His expert witness, a clinical psychologist, testified Dillon was intellectually, socially, and emotionally immature for his age and, when confronted by Johnson, probably “‘blocked out’” reality and “reacted reflexively,” without thought. (Id. at p. 483.) The jury’s questions to the court indicated the jurors were looking for a way to find Dillon guilty of second degree murder or manslaughter, but the jury instructions did not permit it if the killing occurred in the course of an attempted robbery. (Id. at p. 484.) After the jury was discharged, the foreman wrote a letter to the court expressing the jurors’ unwillingness to return a verdict of felony murder, and asking that the court sentence Dillon to the California Youth Authority (CYA), rather than prison. (Id. at pp. 484-485.) The trial court did so, but the People challenged the commitment and the Court of Appeal held Dillon was statutorily ineligible as a matter of law for commitment to CYA. (Id. at p. 486.) The trial court then sentenced Dillon to life in prison with the possibility of parole. (Id. at p. 487.)
The court held that in the circumstances of the case, the punishment of Dillon by a sentence of life imprisonment for first degree murder violated the California Constitution’s prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at p. 489.) It stated:
“[The record] shows that at the time of the events herein defendant was an unusually immature youth. He had had no prior trouble with the law, and... was not the prototype of a hardened criminal who poses a grave threat to society. The shooting in this case was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger. To be sure, he largely brought the situation on himself, and with hindsight his response might appear unreasonable; but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate.” (Dillon, supra, 34 Cal.3d at p. 488.)
The court modified the judgment to reduce the degree of the crime to second degree murder. (Dillon, supra, 34 Cal.3d at p. 489.)
Dillon is distinguishable. Although both Dillon and defendant were young at the time of their offenses, in Dillon’s case there was expert testimony that he was unusually immature; defendant presented no evidence about his degree of maturity. Dillon had no prior criminal record. Defendant was a gang member with a juvenile record of burglary and drug use.
Dillon went to Johnson’s property to steal marijuana, not to shoot Johnson; although he went armed, the shooting was the result of his panicked reaction when he perceived that Johnson was about to shoot him. Johnson had previously threatened to shoot Dillon and his companions if they returned to his property; he was approaching Dillon with a shotgun in his hand at the time Dillon fired at him.
Defendant and his fellow gang members, in contrast, sought revenge against the persons who had shot at defendant’s house. The individuals responsible were unknown; nonetheless, defendant and his companions planned to exact their revenge on whatever rival gang members they could find, whether they had any involvement in the earlier shooting or not. Salazar obtained a sawed-off shotgun at defendant’s request; defendant borrowed a truck. Defendant then drove his companions multiple times past a house where a Halloween party was taking place, where they thought they recognized a few Nortenos. Salazar fired the shotgun at three people standing in front of the house. The shooting was unprovoked; it was not a panicked reaction to any perceived threat from the three victims. Defendant’s gang affiliation, prior criminal history, and drug use, as well as the prior planning and the random, unprovoked nature of the shooting, all distinguish this case from Dillon.
In Dillon, the court also compared the sentence imposed on Dillon with that imposed on his companions. (Dillon, supra, 34 Cal.3d at p. 488.) The court noted that the others armed themselves, some with shotguns, and accompanied Dillon to the farm to steal marijuana; thus, they were coconspirators in the venture, or at least aiders and abettors and hence principals in the attempted robbery and the killing. Nonetheless, none of them was convicted of homicide or sentenced to state prison. They received probation, detention in a juvenile facility, or probation with a jail term. (Ibid.)
The probation report indicates Salazar has not been apprehended. Corona was sentenced to 13 years in prison after pleading no contest to permitting another to shoot from a vehicle (§ 12034, subd. (c)), with enhancements for great bodily injury and gang involvement (§§ 12022.7, subd. (a), 186.22, subd. (b)(1)). Delgadillo was sentenced to probation, with 364 days in jail, after pleading no contest to permitting another to shoot from a vehicle.
Delgadillo merely allowed defendant to use his truck. He was not present at the time of the shooting. The record does not indicate to what extent he was involved in planning the endeavor. Corona was in the truck when the shooting occurred and received a substantial sentence. Defendant, in addition to asking Salazar to acquire the shotgun and participating in the planning of the event, drove the truck past the house multiple times, until Salazar fired the shotgun at the partygoers. The sentences of the other participants do not demonstrate that defendant’s punishment was grossly disproportionate to the crime.
Considering the nature and circumstances of the offenses and the personal characteristics of the defendant, we conclude that this is not one of those rare cases in which the penalty imposed was so grossly disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.
DISPOSITION
The judgment is affirmed.