P. v. Jacobs

Filed 10/30/06 P. v. Jacobs CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and April S. Rylaarsdam, Deputy Attorney General, for Plaintiff and Respondent.

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James Jacobs appeals from the judgment entered following a jury trial in which he was convicted of second degree murder (Pen. Code, §§ 187, subd. (a), 189), with a further finding that he personally and intentionally discharged a firearm causing the death during the commission of the offense (id., § 12022.53, subd. (d)). Defendant contends that the ensuing sentence constituted cruel and unusual punishment. We affirm.

BACKGROUND

On April 16, 2004, Dominic LaCosta and Roberto Bluitt were outside the Women’s Club in Bellflower when defendant, a 16-year-old high school student, stared at Bluitt. As described by LaCosta, Bluitt then asked defendant if he knew “Buzz” or “Brandon.” When defendant responded that he did, Bluitt said, “those are my people.” Hearing this, defendant walked away.

After defendant left, Bluitt and LaCosta stayed in the area talking to friends on the sidewalk. About 20 minutes later, defendant approached Bluitt’s and LaCosta’s group, “swaggering” as he walked. Defendant stopped in the middle of the street and Bluitt removed his jacket in preparation for a confrontation. Meanwhile, “Buzz” (Willie Thomas) got between defendant and Bluitt in an attempt to prevent the two from fighting. After someone said that Thomas should let things alone, Thomas stepped aside and Bluitt took some steps toward defendant. At that point, defendant pulled out a gun and, with Bluitt about eight feet away, fired a single shot at Bluitt. The bullet, which proved fatal, entered Bluitt’s shoulder and exited through his neck. After the shooting, defendant fled.

Further evidence established that when defendant initially walked away from Bluitt and LaCosta, he approached a group that included Nigel Marshall and Thomas, whom defendant did not know. Marshall was carrying a gun. Defendant asked Marshall if he could have the gun and Marshall gave it to defendant. Defendant also asked if anyone knew Thomas. Thomas identified himself and started to walk toward the Women’s Club to see why his name was being mentioned. Thomas had reached Bluitt, a lifelong friend, when defendant started walking up.

Testifying in his own behalf, defendant claimed that it was Bluitt who first stared at him and that Bluitt told defendant to watch who defendant was looking at. Defendant got the gun from Marshall because he was scared of Bluitt. After defendant found out who Thomas was and Thomas walked away, defendant went to him to see if everything was okay. When defendant saw Thomas, Thomas was with standing Bluitt, who took off his jacket and started coming toward defendant. Defendant started to run away and fired one shot into the group in which Bluitt and Thomas were standing. Defendant did not realize he had shot anyone and continued running. When he learned what happened, his family decided that he should move to Las Vegas. Defendant remained there until he was arrested for the shooting. Defendant acknowledged that he was an amateur boxer and that he had been suspended from school approximately five times for fighting.

The prosecutor argued to the jury that defendant had committed premeditated murder. Defendant argued in the alternative that he shot in self-defense and in the heat of passion, and that he did not premeditate. As stated, defendant was convicted of second degree murder.

At sentencing, defendant submitted a written statement in mitigation in which he asserted that Bluitt, who was 20 years old, was the initial aggressor and that defendant fired only a single shot in an attempt to flee. Defendant had no criminal background and no evidence was presented at trial to suggest gang membership. The statement in mitigation also included letters from family and community members attesting to defendant’s good character. At the hearing, friends and family members of both defendant and Bluitt addressed the court. In pronouncing sentence, the court stated:

“Let me say this is hard on everybody, difficult case. I have two clearly very nice families here who have been just traumatized by this terrible, terrible incident that took place in a very few instances [sic] in time. This was certainly not a thing that was thought out for hours and hours. It took place quickly. I’m sure [defendant] is telling me the truth when he says, if I could take back that 30 seconds, I’d do it in a hot minute and re-do this whole thing. I’m sure that’s true. I think [defendant] is a nice young man, nice appearing young man. And certainly the Bluitt family has lost a very nice young man. I can’t -- there’s nothing I can do about that. All I can do is offer my condolences to all of you.”

The trial court then noted that defendant was ineligible for probation and sentenced defendant to 15 years to life for murder and 25 years to life for the firearm enhancement, for an aggregate term of 40 years to life.

DISCUSSION

In People v. Dillon (1983) 34 Cal.3d 441 (Dillon), the Supreme Court found a judgment of first degree murder based on the felony-murder doctrine to constitute cruel and unusual punishment and modified the judgment to murder of the second degree. It did so based on the defendant’s “‘attenuated individual culpability’ and the ‘Procrustean penalty’ for first degree felony murder. (34 Cal.3d at pp. 486, 477.)” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1279.) Defendant contends that, under Dillon, his sentence should also be modified. Although defendant did not raise this contention in the trial court, we address it on the merits “in order to ‘forestall a subsequent claim of ineffectiveness of counsel’ [citation] . . . .” (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

As explained in People v. DeJesus, supra, 38 Cal.App.4th at pages 27--29, “[i]n Dillon, a 17-year-old boy with no prior record, had, with other boys his age, sought to steal marijuana from a nearby field. On their first try, the boys were discovered by the field’s owner and were sent away at the point of a shotgun with threats they would be shot if they returned. Undaunted, the boys devised another plan. When they met for the second raid, several of them, including the defendant, were armed.

“The boys spread out in the field. Upon seeing the brother of the owner, the boys halted their progress and hid for about two hours. During that period, two boys left, and two more were pursued by dogs but returned. The defendant and a few others watched from just outside the field.

“One of the boys, apparently not visible to the group with the defendant, accidentally discharged his shotgun twice. The defendant believed these shots indicated that his friends were being shot and killed. He testified he ‘just wanted to get the hell out of there.’ He was very frightened. [Citation.] At about the same time the owner, who was carrying a shotgun, had circled around the defendant’s group and was approaching. The defendant saw the owner and was sure the owner had seen him.

“As the owner approached, he apparently shifted his shotgun so that it pointed in the defendant’s direction. Terrified he was about to be shot himself, the defendant lowered his .22-caliber rifle to his waist and began firing. He had no animosity toward the owner and did not think about how many times he fired. When the owner fell, the defendant stopped firing. The owner was hit nine times and killed.

“Expert testimony at the trial demonstrated the defendant was very immature even for a boy his age. As a result, he had ‘blocked out’ the reality of the situation and had fired reflexively.

“Though the defendant was being tried for first degree felony murder, it was very clear that neither the jury nor the trial court felt a conviction for that crime was appropriate. The jury sent out a note inquiring about the expert testimony in light of the fact that the defendant was a minor being tried as an adult. The note indicated the jury’s conclusion the defendant had the mental and emotional maturity of a minor. Later, the jury sent out a second note asking if it could find second degree murder or manslaughter even if it found felony murder. The trial judge replied in the negative, and the defendant was convicted of first degree murder.

“The trial judge indicated his sympathy for the jurors’ feelings and his view that on the evidence in the case, the felony-murder rule was particularly harsh. He felt the evidence did not support a first degree murder conviction. He told the jury the defendant could be sent to state prison or the Youth Authority and that he and the prosecutor welcomed their thoughts.

“The jury foreperson then wrote to the court indicating the jury’s reluctance to find guilt under the felony-murder rule, but that, though the penalty was extremely harsh given the defendant’s mental and emotional state, it had no choice. The jury considered a lesser verdict, but felt its collective hands were tied. The jury implored the court to send the defendant to the Youth Authority.

“With the concurrence of the intake supervisor of the Youth Authority, the court sentenced the defendant to that institution. The judge stressed his agreement with the position of the jury. On the defendant’s subsequent appeal, the prosecution collaterally attacked the commitment. The Court of Appeal held the defendant ineligible as a matter of law for commitment to the Youth Authority. The court then determined it had no alternative but to sentence the defendant to life imprisonment in state prison.

“The Supreme Court affirmed the judgment on the attempted robbery and modified the conviction of first degree murder to second degree murder. Though the felony-murder doctrine was statutory and could not be judicially modified, the court concluded the penalty was, nevertheless, governed by constitutional limitations barring cruel and unusual punishment, and that punishment could be considered constitutionally infirm if it was inflicted by a cruel and unusual method or if it was ‘grossly disproportionate to the offense for which it was imposed.’ [Citation.] The court went on to conclude that, on the facts of that case, the punishment was disproportionate.”

The differences between the circumstances of this case and of Dillon are readily apparent. Defendant heard no shots being fired by others, did not see a firearm in Bluitt’s or anyone else’s hands, did not demonstrate immaturity for his age, but did exhibit animosity toward Bluitt. Nor was this a situation where application of the felony-murder rule would require a punishment that a judge and jury felt would be disproportionate to defendant’s culpability. Indeed, the jury here rejected the prosecution’s theory of first degree, premeditated murder, and set the degree at second. What caused the large increase in defendant’s sentence from the 15 years for second degree murder to a total of 40 years to life was the finding of firearm use under Penal Code section 12922.53, subdivision (d). The penalties under this statute have been subject to attack as cruel and unusual punishment and those attacks have been rejected. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213--1216; People v. Martinez (1999) 76 Cal.App.4th 489, 493--498.)

The instant record is devoid of facts regarding the nature of defendant’s offense or the circumstances of his background and character or anything else that would render his sentence of the statutorily mandated 40 years to life term constitutionally infirm. Accordingly, defendant’s argument to this court must be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

JACKSON, J.^*

I concur in the judgment only.

VOGEL, J.

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^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.