P. v. Araujo























Filed 3/7/13 P. v. Araujo CA2/3









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION THREE


>

THE PEOPLE, Plaintiff and Respondent, v. IGNACIO ARAUJO, Defendant and Appellant. ____________________________________ In re IGNACIO ARAUJO, on Habeas Corpus.

B235844 (Los Angeles County Super. Ct. No. LA063534) B240501

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Susan Speer, Judge. Sentence vacated and matter remanded;
judgment is affirmed,

PETITION
for Writ of Habeas Corpus. Writ denied
as moot.

Marcia
C. Levine, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Mary Sanchez and Louis W. Karlin, Deputy
Attorneys General, for Plaintiff and Respondent.

Defendant
and appellant, Ignacio Araujo, appeals his conviction for first degree murder,
premeditated attempted murder, and shooting at an inhabited dwelling, with
firearm use and gang enhancement allegations (Pen. Code, §§ 187, 664/187,
246, 12022.53, 186.22, subd. (b)).href="#_ftn1" name="_ftnref1" title="">>[1] He has filed an accompanying petition for
writ of habeas corpus. Araujo was
sentenced to state prison for a term
of 75 years to life plus life.

The
sentence is vacated and the matter remanded to the trial court for
resentencing; in all other respects the judgment is affirmed; the habeas corpus
petition is denied as moot.

>BACKGROUND

Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

1. Prosecution
evidence.

On
October 23, 2009,href="#_ftn2" name="_ftnref2" title="">[2]
Bryan A. lived in an apartment complex on Vanowen
Street.
Robert R. and Jose A. were friends of Bryan who lived
nearby. That afternoon, Bryan, Jose and
Robert were standing in front of the apartment complex when defendant Araujo
appeared. Araujo walked up to Robert,
pulled a gun from his sweatshirt, pointed it at Robert’s head, and asked “Where
you from?” When Robert replied,
“Nowhere,” Araujo said “M.S.” and shot Robert in the face from just inches
away. Robert fell and Jose started
running. Araujo chased Jose and fired
three times. One bullet shattered a
front window of the apartment complex and landed in the patio. Robert died from his head wound.

Matthew
Mowry, the dean of students at Birmingham
High School, testified that in
October 2009 there were problems at the school being caused by a gang
rivalry between Mara Salvatrucha (M.S.) and Barrio Van Nuys (“B.V.N.”). Mowry said “there always has been”
trouble between B.V.N. and M.S.

Vaughn
Gaboudian, an officer with the Los Angeles School Police Department, worked at Birmingham
High School. He testified there had been on-going campus
conflicts between M.S. and B.V.N. at the time of the shooting. Gaboudian was called to the scene of a fight
on October 22 where he stopped Araujo, who was running away. Araujo said he belonged to M.S. and he had
been having problems with B.V.N. members, but this had only been an argument,
not a fight. The argument started
because some B.V.N. members had “jumped him . . . near his apartment
building.” Araujo was told people from
B.V.N. and another gang, 18th Street,
“might get him after school” and that they would be “driving around looking for
him.” When Gaboudian asked if the school
had to worry that M.S. would be looking for B.V.N. after school to retaliate,
Araujo “said no, because he knows how it works.
He said that if he gets into a fight with [the B.V.N. member with whom
he had been arguing] . . . they would just be back in school two days
later and that he would just blast him when he saw him.”

Araujo’s
friend Jorge testified that a week before the shooting, Araujo had argued at
school with Robert, who belonged to B.V.N.
Robert insulted M.S. by saying, “Fuck Lamara.” After the argument, Araujo asked to borrow
Jorge’s phone so he could call a friend in Pasadena
in order to “feed the beast.” Jorge
understood this to be a death-related reference apparently aimed at
Robert. After the shooting, Araujo told
Jorge “he had killed one from Van Nuys.”
When Jorge said “that wasn’t right,” Araujo warned him not to say
anything or Araujo would kill both Jorge and his mother.

Gang
expert Ralph Brown testified B.V.N. and M.S. were rivals at the time of the
shooting. When he was arrested, Araujo
had various M.S. tattoos on his body, including a fairly recent Devil’s
Pitchfork tattoo on his arm. M.S.
members do not get a Devil’s Pitchfork tattoo unless they have committed a
violent crime for the gang. By calling
out a gang name while committing a crime, the perpetrator is claiming it for
the gang. Saying “Fuck Lamara” to an
M.S. member would show disrespect and likely incite a violent reaction. “Feed the beast” is M.S. code for an act of
violence. Based on a hypothetical
question, Brown opined the attack on Robert and Jose had been committed to
benefit the M.S. gang.

2. Defense
evidence.

Araujo’s
mother testified that, in the period of time leading up to the shooting, Araujo
had been very frightened. He told her he
was being followed by other students who wanted to beat him up. About a month before the shooting, he began
refusing to walk or take the bus home from school and she had to pick him
up. Someone wrote “187” on her car
several times and Araujo told her this was a death threat aimed at him.href="#_ftn3" name="_ftnref3" title="">[3]

Araujo’s
girlfriend testified he was one of only two M.S. members at the high school and
that students belonging to B.V.N. and other gangs hated him. She had seen death threat graffiti aimed
at Araujo. On the day before the
shooting, Araujo had argued with rival gang members, one of whom (not Robert)
pulled a knife and threatened him. The
girlfriend also testified her entire relationship with Araujo had been an
elaborate ruse in order to “set him up” for an attack by rival gang members.href="#_ftn4" name="_ftnref4" title="">[4]

Araujo
testified in his own defense. He had
joined M.S. when he was nine years old.
If he left the gang he would be killed.
He was one of only two M.S. members at the high school and there were at
least ten B.V.N. members at school. They
were threatening him and he lived in B.V.N. territory. He wanted to move, but his mother could not
afford it. Death threats had been
written on his mother’s car and in graffiti in the neighborhood.

Jose
was a member of the Bad Boys gang.
Robert claimed the B.V.N. gang and was always in Jose’s company. In the months leading up to the shooting,
Araujo was becoming more frightened.
About three weeks before the shooting, a car had slowed down next to him
and someone inside pointed a gun at him:
“They wanted to shoot but the bullet didn’t come out.” In the week before the shooting, Robert and
Araujo traded gang insults. During the
incident on October 22, Robert and Jose were among those trying to assault
Araujo. He did not recall telling the
school security officer “I’ll just blast them when I see them,” although it was
possible he had said this.

Araujo
testified that on the day of the shooting, the other M.S. member at school
“came and he talked to me like frightened and he said they are looking for
us.” After school, some of Araujo’s M.S.
friends gave him a gun for protection.
He was in a car with them when they gave him the gun. Then they kicked him out of the car and he
started walking down Vanowen Street to a friend’s house. Coincidentally, he had to go past Jose’s
apartment complex. As he was walking he
saw Robert standing just 10 feet away.
Araujo described the shooting:

“A. Well, I felt that if I turn around, they
could see me and they could shoot at me.

“Q. And what happened next?

“A. Well, I saw that Jose saw me and I got
frightened and I went towards where Robert was and I pulled out the gun.

“Q. And then what happened?

“A. I shot Robert.

“Q. And then did you shoot at Jose?

“A. Yeah, because I thought I saw he was going to
grab something. He was near a car and I
saw he was going to grab something and I was frightened.”

Araujo
acknowledged he received new gang tattoos after the shooting, but his friends
had tattooed him without his permission while he was high on drugs. Araujo did not say anything to Jorge about
“feeding the beast” or about having shot Robert; nor did he warn Jorge to
remain silent.

Humberto
Guizar, a gang expert, testified Mara Salvatrucha gang tattoos are worn to show
pride in the group and are not earned by shooting someone. Before this trial, Guizar had never heard the
term “feed the beast.” In Guizar’s
opinion, Araujo shot Robert and Jose out of fear, not because he wanted to
benefit his gang: “[H]e was under
fire. He’s basically an outcast in an
area that is alien to him. He’s not from
this area. He’s from . . . an
M.S. gang that is primarily located . . . in the city of L.A.,
downtown. [¶] So once they knew that he was a gang member,
they started to basically terrorize him in school every day.” “The tagging on his car 187, saying that you
are going to get killed, . . . you have to take that very serious
when you are involved in a gang and somebody tells you that they are going to
kill you and writing on your mother’s car.
[¶] He was jumped. [¶]
Sadly, his own girlfriend was trying to set him up to get him
killed. They were . . . trying
to kill him. [¶] So when he shot, I believe that he was acting
out of . . . fear . . . .”

>CONTENTION

Araujo’s
sentence constituted cruel and unusual punishment under the Eighth
Amendment.

>DISCUSSION

Araujo
contends his sentence of 75 years to life plus life violated the Eighth
Amendment and that we should either modify it or remand to the trial court for
resentencing. We conclude the
appropriate course is to remand for resentencing so the trial court can give
consideration to very recent Supreme Court case law regarding life terms for
juveniles.

1. The
sentencing hearing.

The
prosecutor submitted a sentencing memorandum which argued for a term of
90 years to life. Defense counsel
neither filed a sentencing memorandum nor offered any oral argument at
sentencing.href="#_ftn5" name="_ftnref5"
title="">[5]

At the sentencing hearing, the trial
court announced it had found numerous aggravating factors: “[T]he crime involved great violence, great
bodily harm, threat of great bodily harm, and other acts disclosing a high
degree of cruelty, viciousness and callousness.
The defendant pre-planned his attack, arming himself with a handgun,
obtaining the assistance of others, and arranged to be dropped off just a short
distance away from where the victims resided.
[¶] Without warning, the
defendant walked up to the victim Robert . . . , fired into [his]
face point blank, killing him where he stood.”
Araujo then shot at Jose “from behind as he ran for safety. [¶]
The defendant fired multiple times at [Jose], firing through the front
entrance of [his] apartment building.
At least one bullet passed into the building endangering the lives
of the residents living there.”

The
trial court said the victims were “particularly vulnerable. They were defenseless as they were attacked
without warning and were unarmed. . . . [¶]
The victims were only 15 years old at the time of this incident.”href="#_ftn6" name="_ftnref6" title="">[6] “The manner in which the crime was carried
out indicates planning, sophistication, and professionalism. The defendant pre-planned the attack,
presumably using other M.S. gang members, to drive him to the scene of the
attack armed with a loaded nine millimeter semi-automatic handgun. And after the murder the defendant was
transported to Palmdale presumably by other M.S. gang members.” “The defendant is an admitted M.S. gang
member since the age of nine years old and was motivated to kill for the
benefit of the gang after he was disrespected by the rival B.V.N. gang members
at school. [¶] The defendant had additional M.S. tattoos applied
to his body after the murder was committed.”


The
trial court found only one factor in mitigation: “The defendant has no known criminal
record.”

The
trial court ended by saying: “The
defendant has demonstrated a clear disregard for human life and demonstrated
his intention to live his life as a proud, violent M.S. gang member. [¶]
While this court is mindful that the defendant had a very difficult
childhood, being born in El Salvador, losing his father at an early age,
being jumped into the M.S. gang at the age of nine, and having his mother move
to the United States without him, nevertheless the defendant had advantages and
choices when he arrived in the United States and could have chosen to
. . . leave the gang and lead a law-abiding life. He chose not to do so. [¶]
And despite his tender age, the defendant is a vicious killer and a
danger to society. [¶] For this, there can be no excuse,
justification or sympathy.”

The
trial court then sentenced Araujo as follows.
On count 1 (first degree murder):
25 years to life, plus 25 years to life for the firearm use enhancement
(§ 12022.53(d)), with a minimum parole eligibility term of 15 years due to
the gang enhancement (§ 186.22, subd. (b)). On count 2 (premeditated attempted
murder): a consecutive term of
life, plus 25 years to life for the firearm use enhancement. A sentence on count 4 (shooting at
an inhabited dwelling) was stayed under the multiple punishment statute
(§ 654). Araujo’s total term was
75 years to life plus life.

2. Discussion.

Araujo was 16 years old at the time of
the shooting. The United States Supreme
Court has, in recent years, expressed concern about sentencing juvenile
offenders to prison terms that prevent any possibility of rehabilitation and
eventual release. In >Roper v. Simmons (2005) 543 U.S.
551 [125 S.Ct. 1183, 161 L.Ed.2d 1], the court held that juveniles must be
treated differently than adults when it comes to sentencing. “Roper
established that because juveniles have lessened culpability they are less
deserving of the most severe punishments.
[Citation.] As compared to adults,
juveniles have a ‘ “lack of maturity and an underdeveloped sense of
responsibility” ’; they ‘are more vulnerable or susceptible to negative
influences and outside pressures, including peer pressure’; and their
characters are ‘not as well formed.’
[Citation.] These salient
characteristics mean that ‘[i]t is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime reflects unfortunate
yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.’ [Citation.] Accordingly, ‘juvenile offenders cannot with
reliability be classified among the worst offenders.’. . . [¶] No
recent data provide reason to reconsider the Court’s observations in >Roper about the nature of juveniles. As petitioner’s amici point out, developments in psychology and brain science
continue to show fundamental differences between juvenile and adult minds.
. . . Juveniles are more
capable of change than are adults, and their actions are less likely to be
evidence of ‘irretrievably depraved character’ than are the actions of
adults.” (Graham v. Florida (2010) 130 S.Ct. 2011, 2026 [176 L.Ed.2d
825].

>Roper held the imposition of capital
punishment on juvenile offenders for any offense whatsoever violated the Eighth
Amendment. Graham held the imposition of a life-without-possibility-of-parole
sentence on a juvenile offender for a non-homicide offense violated the Eighth
Amendment. Miller v. Alabama (2012) 132 S.Ct. 2455, 2469 [183 L.Ed.2d
407], held “the Eighth Amendment forbids a sentencing scheme that >mandates life in prison without
possibility of parole for juvenile offenders,” although a trial court could in
its discretion impose such a punishment.
(Italics added.)

In >People v. Caballero (2012) 55 Cal.4th
262, our Supreme Court concluded that, under the reasoning of these United
States Supreme Court cases, “sentencing a juvenile offender for a nonhomicide
offense to a term of years with a parole eligibility date that falls outside
the juvenile offender’s natural life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment.” (Id.
at p. 268.) Caballero reasoned: “>Miller . . . made it clear
that Graham’s ‘flat ban’ on life
without parole sentences applies to all nonhomicide cases involving juvenile
offenders, including the term-of-years sentence that amounts to the functional
equivalent of a life without parole sentence imposed in this case. [¶]
Defendant in the present matter will become parole eligible over 100
years from now. [Citation.] Consequently, he would have no opportunity to
‘demonstrate growth and maturity’ to try to secure his release, in
contravention of Graham’s
dictate. [Citations.] Graham’s
analysis does not focus on the precise sentence meted out. Instead . . . it holds that a state
must provide a juvenile offender ‘with some realistic opportunity to obtain
release’ from prison during his or her expected lifetime. [Citation.]”
(Id. at pp. 267-268, fn.
omitted.)

In reaching these
conclusions, Caballero noted >Miller had “extended >Graham’s reasoning (but not its
categorical ban) to homicide cases . . . .”
(People v. Caballero, supra,
55 Cal.4th at p. 267.) >Caballero pointed out >Miller “also observed that ‘none of what
[Graham] said about children – about
their distinctive (and transitory) mental traits and environmental
vulnerabilities – is crime-specific.
Those features are evident in the same way, and to the same degree,
when . . . a botched robbery turns into a killing. So Graham’s
reasoning implicates any life-without-parole sentence imposed on a juvenile,
even as its categorical bar relates only to nonhomicide offenses.’ [Citation.]”
(Ibid.)

Araujo was sentenced on September 7,
2011, before either Miller (decided
June 25, 2012) or Caballero
(decided August 16, 2012) was decided.
The trial court’s explanation for imposing the functional equivalent of
a life-without-possibility-of-parole term was almost entirely taken up with an
enumeration of the aggravating factors warranting a long sentence. The court made no more than a passing
reference to Araujo’s juvenile status when it said, “And despite his tender
age, the defendant is a vicious killer and a danger to society.” This record does not demonstrate the trial
court gave meaningful consideration to the factors subsequently discussed in >Miller and Cabalerro. Undoubtedly, the
trial court had discretion to impose a sentence that amounted to life without
possibility of parole, but it could not do without discussing the special
factors trial courts are now required to consider.

Given these
circumstances, we believe the proper course is to vacate Araujo’s sentence and
remand to the trial court for resentencing in accordance with the new case law
from the United
States Supreme Court and the California Supreme Court. (See People
v. Thomas (2012) 211 Cal.App.4th 987, 1013-1015 [juvenile defendant’s
sentence of 196 years to life, for special circumstances murder and attempted
murder, reversed and remanded for resentencing because it predated >Miller and Caballero]; People v. Argeta (2012)
210 Cal.App.4th 1478, 1480-1482 [juvenile defendant’s minimum aggregate
sentence of 100 years, for murder and multiple attempted murders, reversed
and remanded for resentencing because it predated Miller and Caballero].)

We express no
opinion as to how the trial court show weigh the factors discussed in >Miller and Caballero, or as to how long Araujo’s sentence should be.href="#_ftn7" name="_ftnref7" title="">>^[7]

>DISPOSITION

Araujo’s sentence is vacated and the
matter remanded to the trial court for resentencing in light of the Eighth
Amendment and the Miller and >Caballero cases, and consistent
with this opinion. In all other
respects, the judgment is affirmed.
The habeas corpus petition is denied as moot.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







CROSKEY,
J.









ALDRICH,
J.