Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA099552. Philip H. Hickok, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Jose Alex Melendez, Jr., appeals from a judgment entered after the jury convicted him of count 1, second degree robbery (Pen. Code, § 211); count 2, attempted premeditated murder (§§ 664, 187, subd. (a)); and count 3, attempted premeditated murder (§§ 664, 187, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
As to each count it was found true that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b) and that the crimes involved great violence, great bodily harm, threats of great bodily harm, or other acts disclosing a high degree of cruelty, within the meaning of California Rules of Court, rule 4.421 (a)(1). As to count 2 and count 3 it was found true that the offense was committed willfully, deliberately and with premeditation (§ 664, subd. (a)); that the offenses were serious felonies within the meaning of section 1192.7, subdivision (c); and appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (d).
Appellant was sentenced to state prison as follows: count 1, the midterm of three years, plus an additional 10 years pursuant to section 12022.53, subdivision (b); count 2, a consecutive term of life plus 25 years to life pursuant to section 12022.53, subdivision (d); and count 3, a consecutive term of life plus 25 years to life pursuant to section 12022.53, subdivision (d).
CONTENTIONS
Appellant contends that: (1) his convictions for attempted murder in counts 2 and 3 must be reversed because there was a lack of substantial evidence to establish that appellant shot the two victims; (2) the trial court erred by granting the People’s motion to exclude the testimony of the defense eyewitness identification expert; (3) the true findings on the section 12022.53, subdivision (d) enhancement in count 2 must be reversed because the evidence was not sufficient to establish the victim sustained great bodily injury; and (4) the sentence constitutes cruel and unusual punishment because appellant has no chance of completing his sentence and it is disproportionate to the offense and appellant’s culpability. We affirm.
FACTS AND PROCEDURAL HISTORY
Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following. On February 8, 2007, at 7:30 a.m., appellant asked Gabriel Zamora (Zamora) where he was from as Zamora was walking to high school. Appellant wore a plaid sweater and a beanie. He had a slight goatee. Pointing a gun at Zamora from a pocket in his sweater, appellant forced him to hand over his cell phone. Then appellant reached over to pat Zamora down, saw that he had headphones on, and took his iPod away from him. Appellant drove away, and Zamora wrote down the license plate number on his hand and then in a text on another cell phone. Zamora called his mother, then walked to the police station and reported the robbery to the police.
That same day, at 8:16 a.m., appellant approached Eduardo Hernandez (Hernandez), a member of the Kansas Street gang (KST), and his friend Enrique Perez, Jr. (Perez). Hernandez recognized appellant, who was a member of rival gang Unstoppable Mexican Kings (UMK), because he had had a couple of arguments with him in high school. The last argument occurred about a month before the current incident. Appellant asked Hernandez if he was from KST, then pulled out a gun from his sweater or jacket and started shooting. Hernandez turned and ran, but was shot in his right shoulder, right forearm, right thigh, left knee, and left calf. Appellant shot Perez in the back of his neck as Perez turned to run away. Hernandez described appellant to responding officers as possibly Hispanic or white, wearing a black beanie, black sweater and shorts. He said appellant possibly had green or blue eyes, but that it was hard to tell because of the light from the gun blast. Hernandez told officers he knew appellant attended Bell High School. He also told them that appellant drove away in a white car. Perez lost consciousness at the hospital. He did not wake up until a week later.
Abu Dejene saw a male Hispanic, about five feet three inches to five feet five inches tall, wearing a “jacket, black and like square” and short pants, shoot at two other men. Jose Barragan heard gunshots from inside his house and saw a white Toyota or Corolla fleeing the scene. Herberto Blancas Guerrero heard gunshots and saw a male Hispanic wearing a black beanie speeding away in a white Toyota, possibly a Tercel.
Later that same day, police officers apprehended appellant as he was driving a white Toyota Tercel away from the residence of Javier Rivera (Rivera). Rivera, a member of the Flora Clique of UMK, recently had been killed, and was being buried that day. The rear license plate of the car that appellant drove matched that reported by Zamora, and was registered to a Toyota Camry. The front license plate was registered to a Toyota Tercel. After he was apprehended, appellant told officers he was “still UMK all the way,” and that he belonged to the Flora Clique of UMK.
That same day, Zamora identified appellant at a field showup as the robber. Zamora also identified a black and white plaid jacket found in the backseat of the car as the one that appellant wore when he was robbed. At trial, Zamora was certain that appellant was the robber. Hernandez identified appellant as the shooter at a photographic lineup, at the preliminary hearing, and at trial with absolute certainty. During the photographic lineup, Hernandez stated that he had argued with appellant at school.
At trial, the parties stipulated that appellant and Hernandez attended the same high school at the same time prior to the shooting; that the vice principal of the high school if called, would have testified that he had personally interacted with appellant and Hernandez at the high school during the same time period; and appellant has a tattoo of the letters UMK, six inches high, on his front torso and shoulders.
DISCUSSION
1. There was sufficient evidence to sustain appellant’s convictions for attempted murder in counts 2 and 3
Appellant contends that Hernandez’s identification of him as the shooter was tenuous and unsupported by other evidence. We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole 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—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶]... But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja, supra, 4 Cal.4th at pp. 1138–1139.)
Hernandez unequivocally identified appellant as the shooter who had attended the same high school with him. Hernandez had also been in several arguments with appellant during high school and knew appellant was a member of UMK, a rival to his gang. Zamora, who had a very close look at appellant, supported the details provided by Hernandez concerning appellant’s clothing, race, and car. He wrote down the license plate which was traced to appellant. The other witnesses also corroborated appellant’s general description, clothing, race, and car. Nonetheless, appellant complains that the identification of him as the shooter was tenuous, pointing to Hernandez’s testimony that appellant may have been white or Hispanic with blue or green eyes, while appellant’s eyes actually are brown, and he is Hispanic. He urges that even though Hernandez told officers at the scene of the shooting that appellant attended Bell High School, Hernandez failed to tell them at that time that he actually knew appellant from school. Appellant complains that Hernendez’s failure to claim appellant as a fellow high school student at the scene of the shooting casts substantial doubt on the identification evidence. He also points to Perez’s and the other three witnesses’s inability to identify appellant and the lack of fingerprint or gun residue evidence.
Appellant’s claim is merely a request that this court reweigh the evidence, which is not the function of the appellate court. (People v. Culver (1973) 10 Cal.3d 542, 548.) It is the exclusive province of the jury to determine the credibility of the witness. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In any event, Hernandez’s later statement that he knew appellant from school through arguments merely clarified and expanded upon his statement at the scene of the shooting that appellant attended Bell High School.
We conclude that sufficient evidence supports appellant’s convictions for attempted murder.
II. The trial court did not err in granting the People’s motion to exclude the testimony of the defense eyewitness identification expert
Appellant next claims that the trial court erred when it granted the People’s motion to exclude the testimony of a defense eyewitness identification expert because counts 2 and 3 rested primarily on the identification of appellant by Hernandez. He claims the expert’s testimony was relevant with respect to psychological factors such as the observer’s state of mind; the observer’s expectations, stress, and emotions; and the factors of cross-racial identification, distractions, delay, fading memory, and the lack of correlation between confidence in an identification and accuracy of identification. We conclude that the trial court did not abuse its discretion in granting the motion.
“‘[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion.’” (People v. Goodwillie (2007) 147 Cal.App.4th 695, 724.) “Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (People v. Jones (2003) 30 Cal.4th 1084, 1112.) Courts may look at factors such as whether the eyewitness testimony was strong and unequivocal, the lighting, the proximity of the witness to the perpetrator, and corroborating evidence. (People v. Sanders (1995) 11 Cal.4th 475, 509.)
Appellant’s reliance on People v. McDonald (1984) 37 Cal.3d 351, 374, footnote 20, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914 for the proposition that the trial court abused its discretion in granting the People’s motion does not advance his cause. In that case, our Supreme Court held that the trial court erred in failing to admit the testimony of an eyewitness identification expert. There, the non-African-American witnesses did not have clear views of the defendant, did not immediately identify him from a photographic lineup immediately after the crime, or else never identified him before trial, and were equivocal in their identification of the defendant at trial. Indeed, one prosecution witness, who like the defendant was African-American, testified at trial that she was certain defendant was not the shooter. (People v. McDonald, supra, at p. 360.) And, six witnesses testified that the defendant was out of state at the time of the shooting. Our Supreme Court found that the trial court erred in refusing to admit the expert testimony because the matter hinged only on witness identification and the evidence was far from clear because of the witnesses’ discontinuous observations due to parked and moving cars, the suddenness of the event, the witnesses’ overestimation of the duration of the event, the cross-racial nature of the identifications, and the failure or uncertainty of several witnesses in selecting defendant’s photograph from police displays. (Id. at pp. 375–376.)
Here, on the other hand, cross-racial identification was not at issue, since appellant, Hernandez, and Zamora are all Hispanic. Moreover, the identification of appellant by Zamora and Hernandez was unequivocal. Both viewed appellant in broad daylight. Hernandez knew appellant from school where he had been involved in altercations with him, as recently as one month before the shooting. Appellant was close enough to Zamora to pat down his pockets. And, there was corroborating evidence. Other witnesses corroborated the details of Zamora and Hernandez’s description of appellant, his white Toyota, and his clothing. Moreover, appellant was arrested in a white Toyota Tercel bearing the license plate written down by Zamora.
And, the trial court gave appellant’s counsel ample opportunity to cross-examine witnesses and refer to eyewitness identification issues in argument to the jury. It also instructed the jury with CALCRIM No. 315, as to the factors the jurors may consider when weighing the credibility of eyewitnesses.
We conclude that the trial court did not abuse its discretion in granting the People’s motion to exclude the defense expert.
III. Sufficient evidence existed to support the true findings as to the section 12022.53, subdivision (d) enhancement on count
Appellant next contends that the true findings on the section 12022.53, subdivision (d) enhancement in count 2 must be reversed because the People failed to present sufficient evidence to establish that Perez sustained great bodily injury. We disagree.
Section 12022.53, subdivision (d) applies to any person who personally and intentionally discharges a firearm and proximately causes great bodily injury as defined in section 12022.7. Section 12022.7 defines great bodily injury as a significant or substantial injury. (§ 12022.7.) Great bodily injury need not meet any particular standard for severity or duration but need only be a substantial injury beyond that inherent in the offense itself. (People v. Escobar (1992) 3 Cal.4th 740, 746–747.) We review the jury’s factual finding of great bodily injury under the substantial evidence standard. (Id. at p. 759.)
The following cases are instructive. In People v. Wolcott (1983) 34 Cal.3d 92, the court held that gunshot wounds to a victim’s leg constituted great bodily injury and were not superficial or transitory. The victim lost little blood, no sutures were used, and he returned to work the next day. (Id. at p. 107.) Similarly, the victim in People v. Le (2006) 137 Cal.App.4th 54, 57–59, who was struck by a bullet while a passenger in a car, was found to have suffered great bodily injury. He sustained soft tissue and muscular injury to both legs, but was released from the hospital within 24 hours. (Ibid.) In People v. Lopez (1986) 176 Cal.App.3d 460, the court found that penetrating gunshot wounds constituted great bodily injury where the victims immediately fell to the ground upon being shot, were disoriented, screamed, or felt fiery heat. (Id. at p. 465.) And, in People v. Mendias (1993) 17 Cal.App.4th 195, the evidence was sufficient to show great bodily injury where the victim was shot in the thigh and suffered pain from the burning sensation, but felt no pain at the time of trial. (Id. at pp. 199, 206.)
Although appellant concedes the existence of cases holding that victims with gunshot wounds had suffered great bodily injury, he contends that there was a complete lack of evidence of great bodily injury here because the People did not introduce any medical records regarding Perez’s injury or hospitalization, and there was no testimony by any medical personnel who had treated his gunshot wound either at the scene or in the hospital. He complains there was insufficient evidence to support the jury’s finding of great bodily injury because there was no evidence that stitches were required, that the bullet entered Perez’s body, or that Perez had any residual problems as a result of the injury. We disagree that the evidence was insufficient to show great bodily injury. In both People v. Le, supra, 137 Cal.App.4th at pages 57-59 and People v. Lopez, supra, 176 Cal.App.3d at pages 462-466, there is no indication that the jury relied on hospital records or medical personnel testimony in making its finding that the victims’ injuries constituted great bodily injury. Rather, the findings appear to be based on the victims’ testimony. Moreover, in People v. Mendias, supra, 17 Cal.App.4th at page 201, the Court of Appeal found sufficient evidence to uphold the jury’s finding of serious bodily harm in the form of testimony by a police officer who noticed the victim in pain at the emergency room as well as a victim’s testimony that he was shot in his thigh and experienced burning pain. And, some of the victims in the aforementioned cases did not need sutures and were not in pain at the time of trial.
Here, the evidence shows that Perez was shot in the back of the neck. The police officers who responded to the scene testified that Perez and Hernandez were bleeding and in great pain. One officer testified that he saw Perez had sustained a bullet wound on the upper portion of his neck and was bleeding from the neck. While appellant attempts to cast doubt on the substantial nature of the injury that Perez sustained, the record shows that Perez was transported to the hospital where he lost consciousness and did not regain consciousness until a week later. Surely, Perez did not simply sustain a transitory or superficial injury, but a serious one.
Thus, even though no medical personnel testified as to the extent of Perez’s injuries, and no hospital records were introduced, we conclude that substantial evidence sustains the jury’s finding that Perez sustained great bodily injury within the meaning of section 12022.53, subdivision (d).
IV. Appellant’s sentence does not constitute cruel and unusual punishment
Appellant urges that the sentence consisting of a 13-year determinate term and two consecutive life plus 25-years-to-life terms constitutes cruel and unusual punishment under the federal and state Constitutions because he is 17 years old and has no realistic chance of ever serving his complete sentence. He claims the sentence is disproportionate to the current offense and appellant’s culpability. We disagree.
The Eighth Amendment to the United States Constitution prohibits extreme sentences that are grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 20.) A court’s proportionality analysis under the Eighth Amendment is guided by the following criteria: the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 290.)
A sentence violates the state constitutional prohibition against cruel or unusual punishment if it is so disproportionate to the nature of the offense and the offender that it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478.) In order to determine whether a sentence is disproportionate, the courts may consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (In re Lynch (1972) 8 Cal.3d 410, 425 [superseded with respect to the indeterminate sentencing scheme as stated in People v. West (1999) 70 Cal.App.4th 248, 256].) In evaluating the nature of the offense, the court considers the offense in the abstract, and the totality of the circumstances surrounding the commission of the offense, including factors such as the extent of the defendant’s involvement, his motive, the manner in which he committed the offense, and the consequences of his acts. (Ibid.) In examining the nature of the offender, the court focuses on the individual defendant and asks whether the punishment is grossly disproportionate to his individual culpability as reflected by factors such as his age, prior criminal history, personal characteristics, and state of mind. (People v. Dillon, supra, at p. 479.) The court may also compare the challenged punishment with punishments for more serious crimes in the same jurisdiction and punishments for the same offense in other jurisdictions. (In re Lynch, supra, at p. 426.)
Appellant complains that he was 17 years old at the time he committed the crimes and that he cannot come close to fully serving the sentence which encompasses quadruple life terms, citing the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600–601, in which he suggested that a sentence that is impossible for a human being to serve violates the cruel and unusual punishment clauses of both the federal and state Constitutions. Appellant invites the Legislature to fashion appropriate life sentences that would be constitutional and cognizant of life expectancy tables. Moreover, appellant contends that he was immature, he had no significant criminal history, that he suffered from lack of parental guidance, that his victims were not killed, and there was no evidence that they suffered any type of permanent disability as a result of their gunshot wounds.
We decline appellant’s invitation to vacate and remand the matter for resentencing with directions to the trial court to impose a sentence that has the potential to be served within the appellant’s lifetime. “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will.” (People v. Thompson (1994) 24 Cal.App.4th 299, 304.) “The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense,’ i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (Ibid.) We conclude that appellant has not carried his burden of proving that the sentence prescribed by the Legislature is unconstitutional. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196–1197 [defendant bears a considerable burden in showing that his sentence is disproportionate and findings of disproportionality are rare].)
Moreover, our consideration of the nature of the offense and the offender compels us to conclude that the sentence was not cruel and unusual punishment. Appellant robbed a victim at gunpoint. Then, a few hours later, without provocation, appellant shot and wounded two other men from a distance of eight feet as they turned to run away from him. It is only by fortuity that these young men were not killed by appellant.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.
CALCRIM No. 315 provides as follows: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating the identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Were there any other circumstances affecting the witness’s ability to make an accurate identification? [¶] Was the witness able to identify the defendant in a photographic lineup? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendant not guilty.”