Calderon
Filed
5/23/13 P. v. Calderon CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MIGUEL CALDERON,
Defendant and
Appellant.
F063435
(Super.
Ct. No. VCF239260A)
APPEAL from
a judgment of the Superior Court of
David Y.
Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Seventeen-year-old Miguel Calderon
retaliated against rival gang members by shooting numerous shots at the house
where a confrontation had occurred
between the rival gang members and him.
One of the bullets struck a small child causing serious, but not fatal,
injuries. A jury convicted Calderon of
six counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a))
dwelling (§ 246). In addition, the
jury found true numerous enhancements, including personal use of a firearm
resulting in great bodily injury within the meaning of section 12022.53,
subdivisions (b) through (d). Calderon
was sentenced to 120 years to life in prison.
Calderon contends his conviction
must be reversed because the trial court erroneously instructed the jury and
the prosecutor committed misconduct. We reject these arguments.
In addition, Calderon asserts his
sentence constitutes cruel and unusual punishment, in violation of the Eighth
Amendment to the
States Constitution. Recent opinions
by the United States Supreme Court (Graham
v. Florida (2010) 560 U.S. 48 (Graham))
and the California Supreme Court (People
v. Caballero (2012) 55 Cal.4th 262 (Caballero))
confirm that the sentence imposed violates the Eighth Amendment. Accordingly, we will reverse the judgment and
remand the matter to the trial court for resentencing. At that time the trial court can correct an
error in the custody credits to which Calderon is entitled.
FACTUAL AND PROCEDURAL SUMMARY
The Evidence
Miguel Claves was watching
television with his two-year-old son sitting on his lap when he heard gunshots
outside. One of the bullets entered
through the window and Claves felt pain in his leg. When Claves stood up, he discovered the
bullet had struck his son in the stomach area and had exited out his back. His son was in the hospital for several days,
but survived. Claves’s stepson, Oscar,
and two of his friends, Ramon and Alejandro, were at the house during portions
of that night and at the time of the shooting.
Ramon explained that earlier in the
evening he had been in the front yard of the house with Oscar, Luis, and
Alejandro. Calderon and Christian Garcia
walked by and made a gang-related comment, to which Ramon responded. Oscar then lit some fireworks, apparently
causing Calderon and Garcia to believe a gun had been fired and resulting in
their running away. A short while later
Ramon went into the backyard of the house while Oscar and Alejandro went inside
the house. Luis then left.
While Ramon was in the backyard, he
saw Calderon and Garcia approach and stop a short distance away from the
house. Calderon then began shooting at
the house with a rifle. Calderon fired a
lot of shots.
Oscar’s and Ramon’s testimony
essentially were consistent. Oscar
explained that he and Alejandro had gone inside the house just prior to the
shootings to use the restroom. He also
admitted he discharged the fireworks when Calderon and Garcia walked by the
house.
Evidence technicians recovered fourteen .22-caliber
bullet casings from the street approximately 111 feet from the Claves house.
While Calderon was in juvenile
detention, an officer overheard Calderon say he had shot a “scrap’s
brother.†Calderon also said he hoped
the child would survive.
Calderon gave a statement to the
police that was recorded and played for the jury. He admitted that he shot at the Claves house,
but claimed the shooting was in retaliation for an incident that had occurred
earlier that evening. In the first
incident Calderon and Garcia were walking by the Claves house when Garcia made
a comment to the group that was in front of the house. Luis responded by saying, “Shoot that
fool.†Calderon heard the sound of a gun
being cocked and then heard a gunshot.
Calderon took off running.
Calderon and Garcia obtained a
rifle, returned to the house, and Calderon fired numerous shots at the
house. Calderon did not know there were
small children in the house and did not know he had shot one of the children. He was not aiming at anybody, just the
house.
The prosecution’s gang expert
identified both Calderon and Garcia as being active members of the Norteno
criminal street gang. The expert also
testified that Alejandro and Oscar were active members of the Sureno criminal
street gang, and that Ramon was an associate of the Sureno
and Garcia committed the crime for the benefit of the Norteno criminal street
gang.
The Information, Verdict, and
Sentencing
The information charged Calderon
with a separate count of attempted murder for each of the six occupants in the
house at the time of the shooting, in violation of sections 664 and 187,
subdivision (a). The seventh count charged
Calderon with shooting at an inhabited dwelling, in violation of section 246.
In addition, each count included
the following allegations: (1) the crime
was committed for the benefit of a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C); (2) Calderon personally and
intentionally discharged a firearm, causing great bodily injury within the
meaning of section 12022.53, subdivisions (b) through (d); and (3) Calderon was
at least 16 years old at the time the crime was committed within the meaning of
Welfare and Institutions Code section 707, subdivision (d)(1).
The jury found Calderon guilty as
charged and found all special allegations to be true.
The trial court sentenced Calderon
to a term of 15 years to life for each attempted murder conviction, plus an
additional term of 25 years to life on each count for the section 12022.53,
subdivision (d) firearm enhancement. The
sentences on counts 1, 2, and 3 were ordered to run consecutively, and the
remaining counts were ordered to run concurrently. The sentence on the shooting at an inhabited
dwelling count was stayed pursuant to section 654. Calderon was sentenced to a total
indeterminate term of 120 years to life.
DISCUSSION
Jury
instructions
The prosecution’s theory to support
the attempted murder charges was that Calderon returned to the Claves home with
the rifle to kill Ramon, Alejandro, and Oscar.
The prosecutor argued Calderon had the intent to kill these individuals
when he shot at the house. In addition,
the prosecutor argued that Calderon had the intent to kill Claves, his wife,
and his son because they were within the “kill zone,†and Calderon intended to
kill everyone within that zone.
The trial court instructed the jury
on this theory with CALCRIM No. 600, without objection, as follows:
“To prove that the defendant is
guilty of attempted murder, the People must prove that: [¶] One, the defendant took a direct but
ineffective step -- the defendant took direct but ineffective steps toward
killing another person; and [¶] Two, The defendant intended to kill that
person.
“A direct step requires more
than merely planning or preparing to commit murder or obtaining or arranging
for something needed to commit murder. A
direct step is one that goes beyond planning or preparation and shows that a
person is putting his or her plan into action.
A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission
of the crime after preparations are made.
It is an immediate step that puts the plan in motion so that the plan
would have been completed if some circumstance outside the plan had not
interrupted the attempt.
“A person may intend to kill a
specific victim or victims and at the same time intend to kill everyone in a
particular zone of harm or kill zone. In
order to convict the defendant of attempted murder of victim A.H., Miguel
Claves, Edelmira Hernandez, the People must prove that the defendant not only
intended to kill Oscar …, Ramon …, and [Alejandro] … but also either intended
to kill victim A.H., Miguel Claves, Edelmira Hernandez, or intended to kill
everyone within the kill zone. If you
have a reasonable doubt whether the defendant intended to kill victim A.H.,
Miguel Claves, Edelmira Hernandez or intended to kill Oscar …, Ramon …,
[Alejandro] … by killing everyone in the kill zone, then you must find the
defendant not guilty of the attempted murder of victim A.H., Miguel Claves,
Edelmira Hernandez.â€
During deliberations the jury sent
the following question: “What is the
definition of kill zone and how do you define its boundaries.†After conferring with the attorneys, and
receiving no objection, the trial court responded to the jury’s question as
follows: “Please refer to the last
paragraph in Jury Instruction #600. A
‘kill zone’ theory is not a legal doctrine requiring a special jury
instruction. Rather, it is simply a
reasonable inference that you, the jury, may draw depending upon what you
determine to be the facts.â€
Relying on the trial court’s
general obligation to instruct the jury correctly, Calderon argues the trial
court erred by failing to reply adequately to the jury’s question. According to Calderon, the jury “obviously
did not feel they adequately understood†the kill zone theory, so the trial
court was obligated to provide additional guidance. Calderon asserts the kill zone theory applies
in at least two distinct situations: (1)
where shots are fired at a primary target that is located near a group of
people, and (2) where shots are fired at a group of people where there is
no primary target. The trial court could
have, according to Calderon, explained this distinction to the jury, thus
providing guidance in addition to the instruction already given. Thus, the trial court “erred in failing to
provide to the jury a clarifying definition of ‘kill zone’ as requested by the
jury.â€
We reject Calderon’s argument for a
variety of reasons. First, he
misunderstands the two cases on which he relies. To support his theory that there are two
distinct situations in which the kill zone theory applies, Calderon cites
zone theory.
Bland and another man shot and
killed Kenneth Wilson, a member of a rival gang. Wilson was driving a car at the time of the
shooting. Two of his friends who were
not gang members also were in the car at the time. When the shooting started, Wilson was able to
drive a short distance before the car crashed.
Bland and his accomplice continued shooting at the car, injuring the two
passengers.
Bland was convicted of the murder
of Wilson and the attempted murder of the two passengers. The evidence suggested that Bland intended to
kill Wilson, but did not specifically target the passengers. The prosecution argued the intent to kill
Wilson was transferred to the two passengers, thus providing the requisite
intent for the attempted murder convictions.
The trial court instructed the jury on the transferred intent doctrine.
The Supreme Court explained that
transferred intent, which has been a part of California law since the murder
statute was passed in 1872, applies when a defendant “‘who shoots with the
intent to kill a certain person and hits a bystander instead is subject to the
same criminal liability that would have been imposed had “‘the fatal blow
reached the person for whom intended.’â€
[Citation.] In such a factual
setting, the defendant is deemed as culpable as if he had accomplished what he
set out to do.’ [Citation.]†(Bland,
supra, 28 Cal.4th at p. 321.)
The Supreme Court explained how the
transferred intent doctrine applies in different factual contexts and
concluded, “Whether one conceptualizes the matter by saying that the intent to
kill the intended target transfers to others also killed, or by saying that
intent to kill need not be directed at a specific person, the result is the
same: assuming legal causation, a person maliciously intending to kill is
guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or
murders are first degree.†(
323-324.)
The Supreme Court next addressed
the question of whether transferred intent can apply to the crime of attempted
murder. After addressing several
appellate court cases, the Supreme Court concluded that transferred intent does
not apply to the crime of attempted murder:
“We explained above that intent
to kill is not ‘used up’ with the killing of the intended target but extends to
every person actually killed. But this
rationale does not apply to persons not killed.
We see no suggestion the Legislature intended to extend liability for
unintended victims to an inchoate crime like attempted murder. The crime of attempt sanctions what the
person intended to do but did not accomplish, not unintended and unaccomplished
potential consequences.
differed from that required for murder itself.
Murder does not require the intent to kill. Implied malice—a conscious disregard for
life—suffices. [Citation.] But over a century ago, we made clear that
implied malice cannot support a conviction of an attempt to commit
murder. ‘“To constitute murder, the
guilty person need not intend to take life; but to constitute an attempt to
intend.†[Citation.] “The wrong-doer must specifically contemplate
taking life; and though his act is such as, were it successful, would be
murder, if in truth he does not mean to kill, he does not become guilty of an
attempt to commit murder.â€
[Citation.]’ [Citations.]
and attempted murder regarding transferred intent. Someone who in truth does not intend to kill
a person is not guilty of that person’s attempted murder even if the crime
would have been murder—due to transferred intent—if the person were
killed. To be guilty of attempted
murder, the defendant must intend to kill the alleged victim, not someone
else. The defendant’s mental state must
be examined as to each alleged attempted murder victim. Someone who intends to kill only one person
and attempts unsuccessfully to do so, is guilty of the attempted murder of the
intended victim, but not of others.†(
327-328.)
However, the Supreme Court also
explained that even though transferred intent could not support an attempted
murder conviction, a person who shoots at a group of people can still be
punished for the attempted murder of everyone in the group under the kill zone
theory.
“As to the nontargeted members
of the group, the defendant might be guilty of crimes such as assault with a
deadly weapon or firing at an occupied vehicle.
[Citation.] More importantly, the
person might still be guilty of attempted murder of everyone in the group,
although not on a transferred intent theory.
The Ford [v. State (1993) 330 Md. 682 [625 A.2d 984]] court discussed this
last point in explaining why one of its earlier cases (State v. Wilson (1988) 313 Md. 600 [546 A.2d 1041]) correctly
affirmed attempted murder convictions even though it erred in relying on
transferred intent. ‘The result in Wilson
can best be explained and justified by distinguishing between transferred
intent and what is essentially concurrent intent.’ (Ford
v. State, supra, 625 A.2d at p. 1000.)
“The Ford court
explained that although the intent to kill a primary target does not transfer
to a survivor, the fact the person desires to kill a particular target does not
preclude finding that the person also, concurrently, intended to kill others
within what it termed the ‘kill zone.’
‘The intent is concurrent … when the nature and scope of the attack,
while directed at a primary victim, are such that we can conclude the
perpetrator intended to ensure harm to the primary victim by harming everyone
in that victim’s vicinity. For example,
an assailant who places a bomb on a commercial airplane
to harm a primary target on board ensures by this method of attack that all
passengers will be killed. Similarly,
consider a defendant who intends to kill A and, in order to ensure A’s death,
drives by a group consisting of A, B, and C, and attacks the group with
automatic weapon fire or an explosive device devastating enough to kill
everyone in the group. The defendant has
intentionally created a “kill zone†to ensure the death of his primary victim,
and the trier of fact may reasonably infer from the method employed an intent
to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of
attack from a single bullet aimed at A’s head to a hail of bullets or an
explosive device, the factfinder can infer that, whether or not the defendant
succeeded in killing A, the defendant concurrently intended to kill everyone in
A’s immediate vicinity to ensure A’s death.
The defendant’s intent need not be transferred from A to B, because
although the defendant’s goal was to kill A, his intent to kill B was also
direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime
against a primary victim create a zone of harm around that victim, the
factfinder can reasonably infer that the defendant intended that harm to all
who are in the anticipated zone. This
situation is distinct from the “depraved heart†[i.e., implied malice]
situation because the trier of fact may infer the actual intent to kill which
is lacking in a “depraved heart†[implied malice] scenario.’ (Ford
v. State, supra, 625 A.2d at pp. 1000-1001, fn. omitted.)
“California cases that have
affirmed convictions requiring the intent to kill persons other than the
primary target can be considered ‘kill zone’ cases even though they do not
employ that term. In
554, 563-565, for example, the defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder
charges as to everyone in both houses—11 counts—even though the defendants may
have targeted only one person at each house.
‘The jury drew a reasonable inference, in light of the placement of the
shots, the number of shots, and the use of high-powered, wall-piercing weapons,
that defendants harbored a specific intent to kill every living being within
the residences they shot up.… The fact
they could not see all of their victims did not somehow negate their express
malice or intent to kill as to those victims who were present and in harm’s
way, but fortuitously were not killed.’
[Citations.]†(
329-330.)
The Supreme Court concluded the
facts in the case before it compelled the same conclusion. “Even if the jury found that defendant
primarily wanted to kill Wilson rather than Wilson’s passengers, it could
reasonably also have found a concurrent intent
to kill those passengers when defendant and his cohort fired a flurry of
bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted
murder convictions as to the passengers.â€
(Bland, supra, 28 Cal.4th at
pp. 330-331.)
Important to this case is the
Supreme Court’s observation in a footnote:
“This concurrent intent theory is not a legal doctrine requiring special
jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the
jury may draw in a given case: a primary
intent to kill a specific target does not rule out a concurrent intent to kill
others.†(Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
The Supreme Court applied these
concepts to the facts before it in concluding that the kill zone theory was
applicable. “In this case, defendant’s intent to kill
Wilson does not transfer to [the passengers].
This is so, not because defendant killed his intended target, but
because transferred intent does not apply to attempted murder. Whether defendant is guilty of attempted
premeditated murder of [the passengers]
on his mental state as to them, not on his mental state as to Wilson.†(Bland,
supra, 28 Cal.4th at pp. 331-332.) “Moreover, we agree … that the evidence here virtually
compelled a finding that, even if defendant primarily wanted to kill Wilson, he
also, concurrently, intended to kill the others in the car. At the least, he intended to create a kill
zone.†(Id. at p. 333.)
Stone involved
a defendant who shot into a group of people without a specific target. The Supreme Court held that because the
“mental state required for attempted murder is the intent to kill
could be convicted of attempted murder.
(Stone, supra, 46 Cal.4th at
p. 134.)
The facts, unsurprisingly, involved
a confrontation between rival gangs.
After an initial confrontation, members of the rival gang, including the
defendant, returned to the scene of the original confrontation. These members observed approximately 10
members of the other gang sitting on the ground. Stone pulled a gun, and without identifying a
specific target, fired a single shot at the group. The jury found Stone guilty of attempted
murder. Stone appealed, arguing there
was no evidence that he had targeted an individual, and therefore he could not
be convicted of attempted murder.
The Supreme Court began its
analysis by discussing Bland in
detail, and specifically the discussion of the “kill zone†contained
therein. (Stone, supra, 46 Cal.4th at pp. 137-138.) However, like the Court of Appeal, the
Supreme Court concluded that the trial court erred in instructing the jury with
the kill zone theory. (
facts of this case. That theory
addresses the question of whether a
murder or attempted murder of an intended target can also be convicted
of attempting to murder other, nontargeted, persons. Here, defendant was charged with but a single
count of attempted murder. He was not
charged with 10 attempted murders, one for each member of the group at which he
shot. As the Court of Appeal explained,
‘There was no evidence here that [defendant] used a means to kill the named
victim, Joel F., that inevitably would result in the death of other victims
within a zone of danger. [Defendant] was
charged only with the attempted murder of Joel F. and not with the attempted
murder of others in the group on which [defendant] fired his gun.’†(Ibid.)
Nonetheless, the Supreme Court concluded that one “who intends to kill
can be guilty of attempted murder even if the person has no specific target in
mind. An indiscriminate would-be killer
is just as culpable as one who targets a specific person.†(Stone,
supra, 46 Cal.4th at p. 140.) The
Supreme Court explained that “One difference
regarding intent to kill does exist between murder and attempted murder. A person who intends to kill can be guilty of
the murder of each person actually killed, even if the person intended to kill
only one. [Citation.] The same is not necessarily true regarding
attempted murder. Rather, ‘guilt of
attempted murder must be judged separately as to each alleged victim.’ [Citation.]
But this is true whether the alleged victim was particularly targeted or
randomly chosen. As
defendant who intends to kill one person will be liable for multiple counts of
murder where multiple victims die, but only one count of attempted murder where
no one dies.’ But when no one dies that
person will be guilty of attempted
even if he or she intended to kill a random person rather than a specific one.†(Id.
at p. 141.)
Calderon’s assertion the kill zone theory applies where the defendant
fires at a group of people without a specific target is simply wrong. The Supreme Court stated that these facts are
inconsistent with the kill zone theory.
(Stone, supra, 46 Cal.4th at
p. 138.)
Not only is Calderon’s argument unsupported by the cases cited by him,
the jury instructions were correct.
Calderon did not object to the initial instruction on the kill zone
theory, and this indeed is a correct statement of the law. Nor does he object to the initial instruction
on appeal. Instead, he focuses on the
trial court’s response to the jury’s question, but in doing so he ignores the
most important part of the response.
The trial court’s response contained two parts. In the second part of the response, the part
on which Calderon focuses, the trial court relied on the above quoted footnote
from Bland to tell the jury that “A
‘kill zone’ theory is not a legal doctrine requiring a special jury
instruction. Rather, it is simply a
reasonable inference that you, the jury, may draw depending upon what you
determine to be the facts.†This is a
correct statement of the law and also responded to the jury’s question. But, more importantly, in the first part of
its response the trial court also instructed the jury to review CALCRIM No. 600
for the full explanation of the kill zone theory.
This was a thorough response to the
jury’s question and obviously provided all the aid the jury needed because they
returned with a verdict a short while after receiving the response. There was no error and, accordingly, trial
counsel was not ineffective for failing to object to the response.
Prosecutorial
Misconduct
title="">[2]
During closing argument, the
prosecutor attempted to draw the distinction between Calderon the gang member
and Calderon the defendant. “Now, we’ve
been sitting here for the past five days, and you’ve been looking at Mr.
Calderon. Every day he’s had a nice
shirt on, his hair’s nicely groomed, he’s got some glasses on, he’s got a nice
tie on.â€
At this point defense counsel
objected, the trial court overruled, and the prosecutor continued his
argument. “But is this the real Miguel
Calderon? Yes, his physical being sits here
in the courtroom for the past five days.
But is that actually who he is.
No. He’s done up by his attorney
or by his family who provides him the clothing.â€
Defense counsel again objected and
the trial court sustained the objection.
The prosecutor then continued his argument that Calderon was a gang
member acting on behalf of the gang when he shot at the Claves house.
Calderon contends that the first
comment was an improper comment on his demeanor, requiring reversal. People
v. Boyette (2002) 29 Cal.4th 381 explains “comment during the guilt phase of a capital
trial on a defendant’s courtroom demeanor is improper [citation] unless such
comment is simply that the jury should ignore a defendant’s demeanor
[citation]. ‘In criminal trials of
guilt, prosecutorial references to a nontestifying defendant’s demeanor or
behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and
relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on
the defendant’s right not to testify.
(3) Consideration of the defendant’s behavior or demeanor while off the
stand violates the rule that criminal
conduct cannot be inferred from bad character.’ [Citation.]†(Id.
at p. 434.)
In Boyette the prosecutor
argued in closing argument, “[Defendant is a v]ery remorseless, cold-blooded
individual .… Remember, appearances
can be very deceiving and he’s been working on you. He has been working on you, watching you come
and go, smiling and waving when he’s introduced to you. Appearances, ladies and gentlemen, can be
very deceiving.†(Boyette, supra, 29 Cal.4th at p. 434.) The Supreme Court concluded the prosecutor’s
comments were ambiguous, but the comments constituted misconduct to the extent
she was suggesting the defendant was duplicitous based on his courtroom
demeanor. (Ibid.) The Supreme Court,
however, found no prejudice because (1) the defendant testified, (2) the
comments were brief, (3) and there was ample evidence of the defendant’s guilt
and lack of credibility. (
The comments to which Calderon objected here were far less
egregious. The comments could be
interpreted as suggesting that he was duplicitous because his appearance in
court was far different than his actions outside the courtroom. Even if we were to assume misconduct,
however, there is no possibility that Calderon suffered any prejudice. The comments were brief, they were not
strictly comments on demeanor, and the evidence against Calderon, including his
own confession, was overwhelming. Since
there was no pattern of conduct that infected the trial with unfairness, and
the prosecutor did not use deceptive or reprehensible methods to attempt to
persuade the jury, there is no discernable prejudice. We thus conclude there are no grounds for
reversal.
Custody
Credits
The trial court awarded Calderon
presentence custody credits of 251 days for time served and 37 days of conduct
credits. This credit appears to have
omitted the time Calderon spent in the juvenile detention facility. The People concede Calderon should have
received credit for the time he spent in the juvenile detention facility. (People
v. Saldivar (1984) 154 Cal.App.3d 111, 114.) On remand the trial court must correct this
error.
Cruel and
Unusual Punishment
Calderon, 17 at the time he
committed the crimes of which he was convicted, was sentenced to a term of 120
years to life. In Graham, supra, 560 U.S. 48, the United States Supreme Court held
that a sentence of life without the possibility of parole for a nonhomicide
offense violated the Eighth Amendment’s prohibition against cruel and unusual
punishment if the offender was under 18 at the time he or she committed the
offense. Calderon claims the sentence he
received constitutes cruel and unusual punishment because it is virtually
certain he will never be released from prison.
The People argue that
sentence for three reasons. First, the
People assert that attempted murder is a homicide offense, and
offenses. Second, Graham applies only to sentences of life without the possibility of
parole, and Calderon did not receive this sentence. Third, cumulative or consecutive sentences do
not implicate the Eighth Amendment.
In Caballero, supra, 55 Cal.4th 262, a decision that came out after
the briefing in this case was completed, the California Supreme Court
considered and rejected each of the People’s arguments.
Caballero was convicted of three counts of
attempted murder and enhancements for (1) personally and intentionally
discharging a firearm (§ 12022.53, subds. (c), (d)), (2) inflicting
great bodily harm on one victim (§ 12022.7), and (3) committing the crimes
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The charges arose out of an incident where
Caballero shot a firearm at three rival gang members, injuring one victim. He was sentenced to a term of 110 years to
life. His appeal to the Supreme Court
asserted his sentence constituted cruel and unusual punishment, in violation of
the Eighth Amendment and Graham.
The Supreme Court thoroughly
considered, and rejected, each of the People’s arguments. (Caballero,
supra, 55 Cal.4th at pp. 267-269.)
Since our case virtually is indistinguishable from Caballero, we too reject each of the People’s arguments and
conclude that Calderon’s sentence is cruel and unusual, in violation of the
Eighth Amendment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) To guide the trial court, we quote
Caballero’s conclusion:
“Consistent with the high court’s holding in
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. Although proper authorities
may later determine that youths should remain incarcerated for their natural
lives, the state may not deprive them at sentencing of a meaningful opportunity
to demonstrate their rehabilitation and fitness to reenter society in the
future. Under Graham’s nonhomicide ruling, the sentencing court must consider all
mitigating circumstances attendant in the
or her chronological age at the time of the crime, whether the juvenile
offender was a direct perpetrator or an aider and abettor, and his or her
physical and mental development, so that it can impose a time when the juvenile
offender will be able to seek parole from the parole board. The Board of Parole Hearings will then
determine whether the juvenile offender must be released from prison ‘based on
demonstrated maturity and rehabilitation.’
[Citation.] Defendants who were
sentenced for crimes they committed as juveniles who seek to modify life
without parole or equivalent de facto sentences already imposed may file
petitions for writs of habeas corpus in the trial court in order to allow the
court to weigh the mitigating evidence in determining the extent of
incarceration required before parole
not provide trial courts with a precise timeframe for setting these future
parole hearings in a nonhomicide case.
However, the sentence must not violate the defendant’s Eighth Amendment
rights and must provide him or her a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation’ under Graham’s mandate.†(Caballero,
at pp. 268-269.)
DISPOSITION
The judgment is reversed and the
matter is remanded to the trial court for resentencing. At the hearing, the trial court is instructed
to recalculate the custody credits
to which Calderon is entitled. The
judgment is otherwise affirmed.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
KANE, J.
_____________________
FRANSON, J.
further statutory references are to the Penal Code unless otherwise stated.
applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘“A prosecutor’s …
intemperate behavior violates the federal Constitution when it comprises a
pattern of conduct ‘so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.Չۉ۪ [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘“‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.Չۉ۪
[Citation.]†(
841.)
