P. v. Diaz

Filed 12/22/08 P. v. Diaz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.

Marsha L. Levick, Jessica R. Feierman, Jennifer Pokempner and Neha Desai for Amicus Curiae Juvenile Law Center on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Mariano Diaz, Jr., was convicted of two counts of attempted murder and numerous enhancements were found true. He was also convicted of two counts of assault with a firearm. The trial court sentenced him to prison for a total term of 75 years to life. He appeals, claiming the evidence was insufficient to support the jurys findings that he premeditated and deliberated the attempted murders and the trial court erred in its imposition of sentence. He also argues that his sentence is cruel and unusual punishment, particularly because he was only 17 years old when the crimes were committed. Except to correct the base sentence ordered, as conceded by respondent, we affirm.

FACTS

On March 12, 2003, Christopher Sanchez and his brother, Loyal Gonzalez, traveled to Ivanhoe to pick up Sanchezs girlfriend, Ofelia Diaz, at her place of employment. Sanchez and Gonzalez were both members of a Northern gang, and Gonzalez was wearing a red shirt. Diaz was not ready to leave work when Sanchez and Gonzalez arrived, and Diaz asked Sanchez to go to the market next door and buy her a soda.

Sanchez and Gonzalez went to the cash register in the market to purchase a beer for Sanchez and a soda in a plastic bottle for Diaz. Defendant stood directly behind Sanchez and Gonzalez. Defendant was wearing blue clothing and a blue hat. He stared at them. Sanchez made his purchases and started to walk out. Sanchez stopped at the soda fountain machine near the exit doors, where Gonzalez filled up a cup with soda. Defendant walked by and said he would be waiting for them outside. While in the store defendant was making gang slurs towards them.

Defendant went outside, and H.V. ran up to defendant and waited with him. Sanchez went outside and, when he did so, defendant began groping at his waist. Sanchez told defendant he did not want any problems and told defendant he should not start anything with Sanchez or Gonzales. Defendant told Sanchez that he was out of bounds and this was Ivanhoe--his town. Sanchez repeated that he did not want any problems. Defendant said, All right, Ill be waiting right here.

Sanchez went back inside the store and got his brother, Gonzalez. He told Gonzales not to say anything and not to give defendant and H.V. a chance to start anything. He instructed Gonzalez to walk straight to the car.

The brothers exited the store and saw defendant and H.V. standing next to each other. Gonzalez and Sanchez walked to the car. As they walked to the car, defendant and H.V. mouthed off to them. An older male on a bicycle drove up and defendant said to him, heres those Busters right there.^[1] The man on the bicycle responded, Shoot them fools.

Defendant pulled out a gun and started shooting at Gonzalez. Sanchez rushed from the other side of the car to get in front of his brother. He threw the soda bottle at defendant. Defendant continued shooting and eventually the gun stopped firing. Sanchez was not shot, but Gonzalez was shot once through his right forearm while it was raised up to cover his head and face and a second time in his neck. Once defendant pulled out the gun, he shot without hesitation and shot as many times as he could.

As defendant and H.V. ran away, Gonzalez and Sanchez got in the car. Sanchez sped off. On the way to taking Gonzalez to the hospital, the car crashed. Shortly thereafter, officers arrived and Gonzalez was transported to the hospital.

Defendant, who was 17 years old at the time of the crimes, was not found until September 5, 2005. On that date, he fled on foot when an officer spotted him. He was apprehended and initially gave a false name.

Deputy sheriff Joe Aguilar testified that the South Side Kings is a Southern criminal street gang in Ivanhoe and that defendant is a member of that gang. It was Aguilars opinion that the crimes in question were committed by defendant for the benefit of a criminal street gang.

Ofelia Diaz saw the shooting from the window of her workplace. She testified that the man dressed in blue did the shooting. She was unable to identify the shooter at trial.

Several women working in the market testified that defendant was the person in the store. He was staring at Gonzalez and Sanchez. Gonzalez and Sanchez were minding their own business. One of the women said it appeared that defendant was going to start something. All of the women testified that defendant was dressed in blue. None of the employees were able to identify the shooter, although one of the employees had said previously that she saw H.V. holding and pointing the gun. At trial, she said they were too close together to see who was holding the gun at the time of the shooting. None of the women heard defendant say anything to Gonzalez or Sanchez.

DISCUSSION

I. Substantial Evidence

Defendant contends there was insufficient evidence that he premeditated and deliberated the attempted murders. Defendant asserts the facts demonstrate that he was a scared 17-year-old who would not have taken out his gun and fired if an adult had not happened by and ordered him to shoot. In addition, defendant claims the evidence shows that he shot wildly without taking careful aim and ran. Under these facts, defendant argues no one could find that he premeditated or deliberated before acting.

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

In making our determination, we focus on the whole record, not isolated bits of evidence. [Citation.] We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jurys verdict. [Citations.] (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.)

Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.)

Defendants argument focuses on the framework set forth in People v. Anderson (1968) 70 Cal.2d 15 for evaluating whether there is substantial evidence to sustain findings of premeditation and deliberation. In Anderson, the California Supreme Court described three categories of evidence recurring in those cases: planning, motive, and manner of killing. [Citations.] The Anderson decision stated: Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing]. [Citations.] Since Anderson, we have emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight. [Citations.] (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.)

The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.... [Citations.] (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

Defendant argues there was no evidence of planning, pointing to the testimony of Sanchez and Gonzalez that they did not think defendant wanted to pull out the gun and did not do so until told to by the older man on the bicycle. Defendant contends he could not have premeditated since he shot as soon as he received the order to shoot from the bicyclist.

Sanchez testified that when he and Gonzalez went toward the car defendant was standing with H.V. and they were kind of scared. Later Sanchez testified that he probably used the wrong word earlier when he described defendant; he said defendant was excited, like if he was going to do something. Sanchez also testified that defendant looked like he was scared. Hes a young kid. He had a gun. He didnt want to pull it out, you know. He probably needed an older influence. When Sanchez was asked if it appeared the shooting was spontaneous, he replied, I would say, you know, I think he was probably waiting for somebody to say. In his mind he knew he had it, so he just needed the extra little shove, you know. Sanchez said that once defendant pulled the gun out there was no hesitation on his part to shoot. Gonzalez agreed that it appeared that nothing was going to happen until the individual on the bicycle arrived.

We do not believe the evidence that defendant did not appear as if he was going to shoot until he received the order to do so from the bicyclist negates evidence of planning; in fact, it supports the opposite. Defendant stared at the brothers in the store, uttered gang slurs to them, told them he would be waiting for them outside and made a gesture to Sanchez indicating he had a gun in his waistband. When the bicyclist arrived, defendant told the man on the bicycle, heres those Busters right there. From this evidence the jury could have concluded that defendant was prepared to act and had made the cold, calculated judgment to do whatever was required of him when he was told to do so. It could even be inferred that defendant and/or H.V. were in contact with the person on the bicycle before the brothers walked out of the store and were waiting for the bicyclist to ride by, when defendant would initiate this conversation with the bicyclist leading to the order to shoot. We find this to be strong evidence of planning.

In addition, defendant carried a loaded gun on him. He was dressed in gang colors. He waited outside joined by his fellow gang member, H.V., and he waited even though Sanchez said he did not want any problems.

The evidence of motive is abundant. Defendant, dressed in gang colors, made gang slurs toward the brothers, one of whom was dressed in rival gang colors. He told them they were out of bounds because this was Ivanhoe--his town. Defendant was in the company of another known gang member.

Defendant argues that the manner of the attempted killing failed to demonstrate that he attempted to kill according to a preconceived design. In particular, he argues that he did not shoot until ordered to do so; he held the gun sideways, like a gangster; and he shot wildly.

We fail to see how not shooting until ordered to do so negates defendants premeditation or deliberation. A member of a firing squad does not shoot until ordered to do so; much the same occurred here when defendant opened fire on unarmed individuals at close range. Defendant held the gun sideways because that is the way gangsters hold guns. Defendant fired every bullet from his gun. Gonzalez tried to duck and get in the car, yet defendant fired one shot through Gonzalezs forearm as he tried to protect his head and shot another time into Gonzalezs neck. The fact that defendant fired two shots that hit Gonzalez while aimed at his head, a vital area of the body, shows an exacting manner of killing.

Substantial evidence supported the jurys verdicts finding defendant guilty of two counts of premeditated and deliberated attempted murder.

II. Sentence for Attempted Murders

At sentencing, the trial court stated that the sentence for the attempted murder convictions (counts 1 and 2) was 15 years to life, plus additional terms for the enhancements. Defendant contends and respondent concedes that because the crimes were committed for the benefit of a criminal street gang the correct base term for each attempted first degree murder conviction should have been life with a minimum term of 15 years before parole eligibility. Based on Penal Code section 186.22, subdivision (b)(5), they are correct.^[2]

III. Cruel and Unusual Punishment

In count 1, defendant was convicted of the attempted murder of Gonzalez. In addition, it was found true that the attempted murder was committed willfully, deliberately, and with premeditation. The jury also found true that defendant personally and intentionally discharged a firearm causing great bodily injury and committed the crime for the benefit of a criminal street gang. The punishment for willful, deliberate, and premeditated attempted murder is life in prison. (Pen. Code,  664, subd. (a).)^[3] Because of the street gang finding, defendants life sentence is restricted by the provision that he is not eligible for parole for a minimum of 15 calendar years. ( 186.22, subd. (b)(5).) In addition, because the jury found that defendant personally discharged a firearm that caused great bodily injury, his sentence on count 1 was increased with a consecutive term of 25 years to life. ( 12022.53, subd. (d).) The conviction for the attempted murder of Sanchez in count 2 differed only in the imposition of a consecutive term of 20 years for the discharge of a gun rather than 25 years to life for the discharge of a gun causing great bodily injury. ( 12022.53, subd. (c).) The court ordered that count 2 be served consecutively to count 1.

Defendant equates his sentence to a sentence of life without the possibility of parole and argues that it is cruel and unusual punishment under the federal Constitution to sentence a juvenile to a term of life without the possibility of parole. In addition, he argues his sentence is cruel or unusual under the California Constitution in light of People v. Dillon (1983) 34 Cal.3d 441. The Juvenile Law Center has filed an amicus curiae brief in support of defendants argument.

We begin, for the sake of argument only, by accepting defendants calculation that he will not be eligible for parole for 66.6 years. We also preliminarily note that defendant has forfeited raising this issue on appeal because his counsel did not challenge the constitutionality of his sentence below. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) For this reason alone his argument fails. We will, however, discuss the merits of the claim in the interest of judicial economy and because defendant has raised a claim of ineffective assistance of counsel regarding his counsels failure to raise the issue at sentencing.

Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. omitted.)

Defendant and amicus contend that his de facto sentence of life without the possibility of parole constitutes cruel and unusual punishment as applied to a juvenile. This analysis is based primarily on the United States Supreme Court case of Roper v. Simmons (2005) 543 U.S. 551 (Simmons). In Simmons the United States Supreme Court found that the imposition of the death penalty for juvenile offenders constituted cruel and unusual punishment. The earlier case of Thompson v. Oklahoma (1988) 487 U.S. 815 held that juveniles under the age of 16 could not be subject to the death penalty. In Atkins v. Virginia (2002) 536 U.S. 304 it was held that the death penalty cannot be imposed on mentally retarded persons. In all three cases a clear distinction was made between execution and lesser sanctions. Justice OConnors concurring opinion in Thompson, in which she cast the fifth and decisive vote for the judgment in that case, pointed out the significance of the distinction: The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality. [Citation.] (People v. Dermirdjian (2006) 144 Cal.App.4th 10, 14.) Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. (Simmons, supra, at p. 568.)

Although Simmons points out that youth are more impetuous, are more vulnerable or susceptible to negative influences and outside pressures, and the personality traits of a juvenile are less fixed and more transitory (Simmons, supra, 543 U.S. at pp. 569-570), we have not been provided any California or United States Supreme Court authority holding that lengthy sentences are per se excessive in all cases involving juveniles. (People v. Demirdjian, supra, 144 Cal.App.4th at p. 15.) We reject defendants argument that Simmons conclusion regarding juveniles and the death penalty applies with equal force to juveniles receiving a sentence defendant claims is the equivalent of life without the possibility of parole.

Characteristics found in juvenile offenders are, however, still relevant to an inquiry regarding cruel and unusual punishment, as demonstrated by the California case of People v. Dillon (1983) 34 Cal.3d 441, a case relied on heavily by defendant here. In Dillon, a 17-year-old juvenile planned with other juveniles to steal marijuana from a nearby field. During their first attempt they were discovered and sent away by the fields owner with threats they would be shot if they returned. The group devised another plan and returned to the field; this time they were armed with shotguns. One of the youth accidently discharged his gun. The defendant thought his friends were being shot and he became very frightened. The owner of the field, armed with a shotgun, circled around the group and approached. The defendant saw the owner and was sure the owner saw him. The owner shifted his gun so it was pointed in the defendants direction. The defendant was terrified that he was about to be shot. The defendant lowered his gun and began firing. When the owner of the field fell to the ground, the defendant stopped firing. The owner died after having been hit nine times. (Id., at p. 483.)

The defendant in Dillon had no prior record and at trial expert testimony was presented showing that he was very immature, even for a youth his age. The defendant was tried for first degree murder under a theory of felony murder. Both the jury and the trial court made it clear they felt a first degree murder conviction was too harsh based on the circumstances of the crime and the defendants background, but he was convicted of first degree murder based on the facts and was sent to prison for life. (People v. Dillon, supra, 34 Cal.3d at p. 484.)

The California Supreme Court modified the conviction of first degree murder to second degree murder, finding that the defendants punishment was cruel and unusual under the California Constitution. The court noted that the other participant in the crime received relatively petty chastisements (People v. Dillon, supra, 34 Cal.3d at p. 488) and further noted the harshness of the felony murder rule (id. at pp. 486-489).

The finding of cruel and unusual punishment in Dillon was based primarily on the first criteria out of three utilized to determine if a punishment is cruel and unusual. The first test is one of intra-case proportionality and we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (People v. Dillon, supra, 34 Cal.3d at p. 479.) This examination requires us to look at the entire circumstances of the crime--including motive, method, and results--and also requires us to look at the characteristics of the defendant--including his age, prior criminality, personal characteristics, and state of mind. (Ibid.)

Although defendant was not an adult when he committed the crime, he was merely one year away from adulthood. He has a relatively minor prior criminal record, having been found in juvenile court to have committed disturbing the peace and being under the influence of a controlled substance. He did not act until told to do so, yet he was fully prepared to act and acted immediately after being told to do so. The victims of the crime did nothing to provoke defendant and, in fact, asked him to refrain from acting out against them. Defendant chose to ignore the plea of Sanchez to not engage in any actions against them. Defendant fired all the bullets he had in his gun at two unarmed suspects who were merely trying to leave the area. He did so while in the company of another validated gang member. Defendant is a gang member and has several gang tattoos. The fact that defendant ... had chosen to embrace an antisocial, savage, gang lifestyle of complete heinousness, callousness and utter disregard for the law or for the rights of others at a relatively early age does not demonstrate the disproportionality of the sentence. The senselessness of defendant[s] ... crimes makes [him] more, rather than less, deserving of punishment. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1146.)

We find the differences between defendant here and the defendant in Dillon to be significant, with the only similarities being their youth and lack of a serious criminal record. This was not a case of unintentional acts resulting from reckless behavior, youthful bravado or accident. Defendant with premeditation and deliberation attempted to murder two unarmed individuals trying to leave the area, after the individuals had asked defendant to allow them peaceable departure.

Defendant does not discuss the second test of the tripartite test for cruel and unusual punishment; a comparison of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. (People v. Chacon (1995) 37 Cal.App.4th 52, 63.) The third part of the test is to compare the challenged penalty with those imposed for the same offense in other jurisdictions. (Ibid.)

Defendant and amicus argue that defendants sentence is the equivalent of a sentence of life without the possibility of parole and that national and international consensus underscores that this punishment on a youthful offender is cruel and unusual.

Defendants comparison between his punishment and youthful offenders who receive life without the possibility of parole is flawed for several reasons. First, defendant did not receive a sentence of life without the possibility of parole. Although it is highly unlikely that defendant will be alive when it is time for parole, he is still eligible for parole. Second, proportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. (People v. Sullivan (2007) 151 Cal.App.4th 524, 571.) Defendant did not receive his lengthy sentence based on the commission of a single crime. He committed two crimes of attempted murder. He did so for the benefit of a criminal street gang. He did so by discharging a gun and, in one count, causing great bodily injury. Comparisons to a solitary offense are not accurate. (People v. Huber (1986) 181 Cal.App.3d 601, 634-635; People v. Mantanez, supra, 98 Cal.App.4th 354, 366.)

Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislatures sole discretion. [Citation.] (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) Our Supreme Court has emphasized the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned unless their constitutionality clearly, positively and unmistakably appears. [Citation.] (People v. Sullivan, supra, 151 Cal.App.4th at p. 569, brackets in original.)

Based on the tests that we are required to apply, we find that defendant has failed to show that his sentence offends the proscription against cruel and unusual punishment.

DISPOSITION

We order the abstract of judgment corrected and forwarded to the appropriate authorities to reflect that defendants base sentence for attempted murder in count 1 and count 2 is life with a minimum term of 15 years before he is eligible for parole. In all other respects. the judgment is affirmed.

___________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

___________________________________

KANE, J.

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^[1]Busters is a derogatory term for a Northern gang member.

^[2]We note that the trial court has corrected other errors in the abstract of judgment pointed out by the defendant in a letter to the trial court.

^[3]All future code references are to the Penal Code unless otherwise noted.