Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA060732 Kathryne A. Stolz, Judge.
Edward H. Schulman, 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, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Armando Torrez of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special circumstance allegations of murder during the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A) & (G)). The jury also found Torrez guilty of first degree robbery (§ 211) and conspiracy to commit robbery (§ 182, subd. (a)(1)). Torrez was sentenced to life imprisonment without the possibility of parole. On appeal Torrez contends his sentence must be modified to an indeterminate term of 25 years to life because the felony-murder special circumstance provisions are unconstitutional. We affirm.
Statutory references are to the Penal Code.
The information also alleged Torrez was subject to sentencing under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and under section 667, subdivision (a)(1), because he had suffered a prior serious or violent felony conviction and further alleged he had served one separate prison term for a felony. (§ 667.5, subd. (b).) The People’s motion to dismiss the prior strike allegation was granted prior to sentencing. Although Torrez admitted the prior prison term allegation, the trial court struck the allegation at sentencing in furtherance of justice.
The trial court stayed sentence on the robbery and conspiracy counts under section 654.
FACTUAL BACKGROUND
According to the evidence at trial, Itzel Gutierrez was upset with her stepfather, Jose Carillo. At Gutierrez’s behest, Torrez, Anthony Hernandez and Erika Rodriguez went to rob Carrillo in his motel room. The two men forced Carrillo to lie face down on the floor while Rodriguez left with some of Carrillo’s belongings. Rodriguez later reunited with Torrez and Hernandez, who were in Carrillo’s truck. The same day, Torrez used Carrillo’s bank card to purchase gas and to withdraw cash. Police found Carrillo in the motel room dead of asphyxia due to strangulation.
Itzel Gutierrez, Anthony Hernandez and Erika Rodriguez were also charged with crimes arising from Carrillo’s murder. Torrez was tried separately from them.
DISCUSSION
“[T]o satisfy the Eighth and Fourteenth Amendments, a capital death sentencing scheme must “‘suitably direct and limit’” the sentencer’s discretion ‘“so as to minimize the risk of wholly arbitrary and capricious action.’”” (Arave v. Creech (1993) 507 U.S. 463, 470 [113 S.Ct. 123 L.Ed.2d 188].) “In order to avoid the United States Constitution’s Eighth Amendment proscription against cruel and unusual punishment, a death penalty law must provide a ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’” (People v. Sims (1993) 5 Cal.4th 405, 434; see also People v. Crittenden (1994) 9 Cal.4th 83, 154.)
On appeal Torrez argues, as he did at the sentencing hearing in the trial court, because the felony-murder special circumstance provisions in section 190.2, subdivision (a)(17), are not sufficiently different from the felony-murder theory of first degree murder, the felony-murder special circumstance does not conform to the requirement that it must narrow the class of murders eligible for the death penalty or a sentence of life without the possibility of parole and is thus unconstitutional.
Section 190.2, subdivision (a), provides in part, “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.04 to be true: [¶]... [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit the following felonies: [¶] (A) Robbery in violation of Section 211 or 212.5. ¶]... [¶] (G) Burglary in the first or second degree in violation of Section 460....”
Torrez’s argument suffers from two fatal flaws. First, the Eighth Amendment’s narrowing requirement does not apply to life-without-parole sentences but only to sentences of death. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 [111 S.Ct. 1480, 115 L.Ed.2d 836].) Because Torrez received a life-without-parole sentence, the narrowing requirement does not apply to his case.
Second, the Supreme Court “has consistently rejected the claim that the statutory special circumstances... do not adequately narrow the class of persons subject to the death penalty.” (People v. Pollock (2004) 32 Cal.4th 1153, 1195; see, e.g., People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Taylor (2001) 26 Cal.4th 1155, 1183; People v. Catlin (2001) 26 Cal.4th 81, 158-159; People v. Marshall (1990) 50 Cal.3d 907, 945-946 [“the ‘triple use’ of the same facts i.e., to support (1) the conviction of first degree murder on a theory of felony murder, (2) the finding of the felony-murder special circumstance, and (3) the imposition of the penalty of death” does not violate due process or cruel and unusual punishment clauses of United States Constitution].) Recently in People v. Gamache (2010) 48 Cal.4th 347 the Court reiterated, ‘“California homicide law and the special circumstances listed in section 190.2 adequately narrow the class of murderers eligible for the death penalty....’ [Citations.] Specifically, the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the pool of those eligible for death.”
Torrez asserts these cases were mistakenly decided and seeks to preserve the issue for further review. We are bound by Supreme Court decisions that have rejected Torrez’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J.ZELON, J.