P. v. Gallegos
Filed 6/17/13
P. v. Gallegos CA2/7
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opinion has not been certified for publication or ordered published for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 SEVEN
THE
PEOPLE,
Plaintiff and Respondent,
v.
RODOLFO
GALLEGOS,
Defendant and Appellant.
B238571
(Los Angeles County
Super. Ct. No. MA047368)
APPEAL from a judgment of the Superior Court of
County. Bob S. Bowers Jr., Judge. Affirmed with directions.
Fay Arfa for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for
Plaintiff and Respondent.
___________________________________
INTRODUCTION
In 1991, gang member Rodolfo Gallegos (then 16) shot at
five people, killing one of them. After
admitting the shooting to others, he fled to Mexico but was apprehended and
tried nearly 20 years later.
A jury convicted Gallegos of one count of
murder and four counts of attempted premeditated murder and found true
related gang and firearm allegations.
The trial court sentenced Gallegos to state prison for a term of 85
years to life on the murder and four attempted murder counts plus another 5
years for the firearm enhancement.
Gallegos appeals, claiming insufficiency of the evidence
as well as various evidentiary errors and sentencing error. We affirm the convictions but remand for
resentencing.
FACTUAL
AND PROCEDURAL SUMMARY
On Friday, August 23, 1991, several friends (Johnnie
Nieto, Felipe Curiel, Canea Rowan (also known as Robin Rowan), Ruben Perez and
Kenny Caldera) attended a party. Later,
another guest at the party (Reinaldo Morales) agreed to drive the friends home,
and the group left at about 1:00 a.m. (on August 24). After dropping off Curiel, Morales stopped at
a red light. Another car pulled up on
the right, and someone inside that car yelled, “Where are you from?†Rowan screamed, “We are from nowhere,†and
urged Morales, “Go, go, go.†Within
seconds, the passenger in the second car who was holding a gun (later
identified as Rodolfo Gallegos) leaned over the driver and fired several
shots. Morales drove off, but bullets
hit Caldera, Nieto and Rowan, and Caldera died of his injuries shortly
thereafter.
The other victims described the car involved in the
shooting as white. Los Angeles Police
Officer Carlos Sanchez told detectives about a cream colored Monte Carlo owned
by Kevin Lopez.
The next day or so, Gallegos (known as “Shy Boy†within
his gang, Blythe Street (BST)) told fellow BST gang member Kevin Lopez (known
as “Strangerâ€) he had “fucked up†and was “responsible†for the shooting. Lopez said he did not want to hear it. Gallegos told Lopez he had a stolen car and
thought the victims were from a rival gang trying to do a “drop off†and a
“walk-by†shooting; he told Lopez the victims were actually from “nowhere†and
had said “go, go, go†before the shooting.
That same day or so, Gallegos spoke with fellow BST gang
members Raul Garay, “Sneaky†and “Chico.â€
Gallegos said, “Fuck, I fucked up.â€
He gave Garay a 9 mm Star Brand handgun, saying he had killed someone
with the gun.
name="_ftnref1" title="">[1] He said he had told his “old lady†he had
“smoked a fool,†and she had told the police.
She knew what had happened, and he was worried the police were looking
for him. Garay told Gallegos to
“vanish.â€
Angela Garcia was Gallegos’s “off and on†girlfriend; he
had cheated on her. Two days after the
shooting, Gallegos called Rosa Gomez when Garcia was there, and she (Garcia)
and Gallegos spoke. Gallegos told Garcia
he and his friends had gone “gapping,†which meant shooting. He identified the location at Roscoe and
Willis, said someone had asked “where you from†and the victims were saying to
hurry and go. Garcia knew Caldera and
already knew he had died at the exact location Gallegos identified. She told Gallegos Caldera was not “from
anywhere,†meaning he was not from a gang, and was very upset. After that, Gallegos said it had not been
him; it had been his friends.
After the
shooting, the police prepared several photographic lineups which included
photographs of BST gang members Kevin Lopez, his brother Leon, Raul Urquiza and
Gallegos. At the time, none of the
victims identified Gallegos. Morales
initially identified someone named David Soto, saying he looked like the
shooter, and later identified Kevin Lopez, based on his eyes.
On September 11, 1991, the police interviewed Garcia, and
she recounted her telephone conversation with Gallegos. She told police Gallegos lived with Kevin
Lopez. Police served a search warrant on
Lopez’s residence, and arrested Kevin Lopez, his brother Leon, Urquiza and
Renee Vargas.
When Detective Hooks told Kevin Lopez he had been identified
as the shooter, he told police about his conversation with Gallegos who said he
had “fucked up†and “committed that shooting.â€
He told the police Gallegos was in Mexico.
After Lopez’s arrest and interview, BST gang member
Robert Rivera known as “Wizard†(21 at the time of the shooting) provided
police with documentation (a rental agreement for a cabin) regarding a trip to
Big Bear he had taken with other BST members.
Rivera, accompanied by Raul Urquiza (“Boo Booâ€), Leon Lopez (“Sneakyâ€),
and Kevin Lopez (“Strangerâ€), left Panorama City at about 9:00 or 10:00 p.m. on
August 23, 1991. Gallegos (“Shy Boyâ€)
did not go on the trip. Kevin Lopez had
encouraged Gallegos (“Shy Boyâ€) to go; they had had a dispute “over a femaleâ€
and Lopez invited Gallegos to “put it behind [them],†but Gallegos
declined. Urquiza and someone named
Norma rode in Kevin Lopez’s car. His
brother Leon drove another car, and Rivera drove a third car.
At about 11:00 p.m. on August 23, they were all pulled
over by police on the eastbound Interstate 10 freeway near the intersection
with the Interstate 15 freeway. The
police questioned the group, noting each of their names and completing field
identification cards. Kevin Lopez gave a
false name (“Angel Reyesâ€) and presented a fake driver’s license, but officers
also photographed everyone there.
According to the police, the detention lasted until 12:21 a.m. when
everyone then continued on to Big Bear. The
group also had receipts reflecting various purchases and rentals in Big Bear. Everyone including Kevin Lopez stayed until
Sunday (August 25) when they left around noon, arriving in their neighborhood
in the evening.
The police looked for Gallegos but were unable to locate
him. A warrant was placed in a law
enforcement database on September 19, 1991.
A bulletin was distributed in the area and published in Spanish
newspapers. Gallegos did not contact the
police. Neither Rivera nor Urquiza who had regularly seen Gallegos in the
neighborhood in the past saw Gallegos again after the weekend of the
shooting. Kevin Lopez did not leave the
area.
In July 1999, a family friend from the same town in
Mexico as Gallegos’s family (Refugio Espino) learned police sought Gallegos for
murder. When he later visited the town
(Tarimoro), he saw Gallegos there, noted his address and provided it to police
upon his return to the United States.
The case had been reassigned to Detective Angel Lopez who then attempted
to locate witnesses from the 1991 shooting.
In 2004, Garcia told Detective Lopez that Gallegos
contacted her six months after the shooting and told her to date other people
because he was not returning. Urquiza
reported Gallegos had taken his belongings with him. Kevin Lopez recounted that Gallegos had said
he had “fucked up and had shot the wrong person.†Nieto, the rear right passenger closest to
the car involved in the shooting, said he did not think he could make an
identification and declined to view a lineup because he feared gang retaliation;
he had also thought it to be pointless as he had seen the flyer with Gallegos’s
picture.
In 2005, Morales told Detective Lopez he had identified
Kevin Lopez because he was unable to recognize the shooter. Detectives did not tell him who to identify,
but kept pressing him to make an identification after the shooting he
said.
In 2006, Detective Lopez conducted a photographic lineup
with Nieto who identified Gallegos, writing: “[this picture] is known to me as
Rodolfo Gallegos. When I first saw this
picture, when I first saw it, it was a confirmation to my memory of the
incident. I saw that picture and
thought, so this is how he looks. This
is the guy with the gun.†He said his
identification was not affected by the flyer because he had relived the
shooting for the first “couple of years†afterward. Morales declined another lineup, saying he
had nothing to add. In April, Detective
Hooks located Raul Garay and, after speaking with him, applied for Gallegos’s
extradition from Mexico.
Gallegos was charged with one count of murder (Pen. Code,
§ 187, subd. (a) [all undesignated statutory references are to the Penal Code])
(count 1, relating to Caldera) as well as four counts of attempted premeditated
murder (§§ 187, subd. (a); 664) in counts 2 through 5 (relating to Nieto, Rowan,
Morales, Perez, respectively). As to all
counts, it was further alleged Gallegos had committed the crimes for the
benefit of his criminal street gang (§ 186.22, subd. (b)(4)); had personally
used a firearm (§ 12022.5, subd. (a)); was a minor at least 16 years of age at
the time of each offense (Welf. & Inst. Code, § 707, subd. (d)(1)); was a
minor at least 14 years of age at the time of each offense (Welf. & Inst.
Code, § 707, subd. (d)(2)(B)); and was a minor at least 14 years of age at the
time and the crime was committed for the benefit of a criminal street gang
(Welf. & Inst. Code, § 707, subd. (d)(2)(C)(ii)).
At trial, the People presented evidence of the facts
summarized above. Nieto testified he had
not initially identified Gallegos because he was young (14) at the time of the
shooting and had been afraid but said he was certain of his identification; he
had been the closest occupant of the car to the shooter, and “it’s one of those
moments you do not forget.â€
When police reinterviewed Kevin Lopez in November 2010,
he was scared and did not want to be involved, indicating the defense had
contacted him. He acknowledged Gallegos
had admitted committing the shooting and after hearing his interview from 1991,
confirmed what he said then was true.
In addition, Detective Lopez testified as a gang expert
regarding BST. Given a hypothetical
based on the facts of the case, Detective Lopez opined the shootings were gang
motivated as a way to tell others to stay out of the gang’s territory and to
garner respect.
Los Angeles Police Officer Steve Park testified that he
had come into contact with Gallegos on July 25, 1990 (more than a year before
the shooting). A photograph taken at the
time showed that Gallegos had “BST†tattooed across his chin and had another
BST tattoo on his right forearm.
Gallegos told police his “homeboy†“Happy†was being “jumped,†he rode
in another homeboy’s car with “Killer†to help “Happy.â€
In Gallegos’s defense, an eyewitness identification
expert testified as to various factors affecting reliability of eyewitness
identifications. In addition, a defense
investigator said Kevin Lopez had told her his statements to police were
inaccurate. He had made them up because
he was “terrified†of the police; he was worried about a juvenile warrant and
was told he would not be arrested if he cooperated. He acknowledged Gallegos told him he had
“fucked up.â€
The jury found Gallegos guilty on all counts and found
true the allegations he had used a handgun and had committed his crimes for the
benefit of a criminal street gang.
The trial court sentenced Gallegos to state prison for a
term of 85 years to life plus 5 years, calculated as follows: on count 1, 25 years to life for murder, plus
5 years for the firearm enhancement; on count 2 (attempted premeditated
murder), a consecutive term of life as the base term, with a minimum parole
eligibility period of 15 years for the gang enhancement; on counts 3, 4 and 5
(attempted premeditated murder), consecutive sentences identical to the sentence
imposed on count 2.
Gallegos appeals.
Substantial
Evidence Supports Gallegos’s Convictions.
According to Gallegos, the “evidence failed to prove that
[he] shot at or killed anyone.†He says
the eyewitnesses suffered from “well-known deficiencies,†the prosecution
failed to produce forensic evidence to corroborate the witnesses
identifications and although former BST gang members and Gallegos’s
girlfriend testified against him, their
testimony “should be deemed unreliable.â€
In a separate but related argument, he says “[n]either the killing nor
the attempted killings were premeditated and deliberate.†Gallegos ignores the standard of review as
well as the record.
“The uncorroborated testimony of a single witness is
sufficient to sustain a conviction, unless the testimony is physically
impossible or inherently improbable.†(
296.) Nieto identified Gallegos as the
shooter, and it was for the jury to assess the credibility of his explanation for
his delay in doing so. In addition, as
he acknowledges, fellow gang members Kevin Lopez and Raul Garay and girlfriend
Angela Garcia (who testified at the time of the trial she was again “in loveâ€
with Gallegos and had been in contact with him during the proceedings)
testified Gallegos had admitted the shooting, and he fled to Mexico shortly
thereafter. Similarly, given the
evidence Gallegos followed the victims with a gun and fired at them in spite of
their denials of any gang affiliation, his claim there was no evidence of
premeditation and deliberation is meritless.
(People v. Halvorsen (2007) 42
Cal.4th 379, 419-420.)
Gallegos
Has Failed to Demonstrate Prejudicial Error in the Trial Court’s Admission of
Tape Recorded Police Statements.
Gallegos says he was prejudiced by the admission of the
statements of Kevin Lopez and Raul Garay to police, arguing the rule of
completeness set forth in Evidence Code section 356 only applies to allow the
out-of-court statement to seek admission in its entirety. We disagree.
At the time of trial, Kevin Lopez (who was 16 at the time
of the shooting but who had left the
gang a year of so later and was working as a financial manager by the time of
trial) did not want Gallegos to see his face because he was afraid of
retaliation. At trial, he said he could
not remember “details†and did not remember which shooting Gallegos had been
talking about. The prosecution argued he
was feigning and sought to impeach him with his prior testimony. (Evid. Code, § 1235.) Similarly, Garay was denying “about 90
percent†of what he had previously told detectives.
Gallegos has failed to demonstrate error. (People
v. Fierro (1991) 1 Cal.4th 173, 221-222; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220).
Gallegos
Has Demonstrated No Error Relating to Evidence of Uncharged Conduct.
Gallegos says the trial court erred in allowing the
prosecutor to introduce testimony from an accomplice (Raul Garay) regarding an
uncharged offense without giving the jury an accomplice instruction, and his
trial counsel was ineffective for failing to object. As he acknowledges, however, an accomplice is
defined to mean “one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of
the accomplice is given.†(§ 1111.)
Therefore, Garay was not an “accomplice†within the meaning of section
1111, and the claim is meritless.
Ineffective Assistance of Counsel for Failure to Present Evidence of his Good
Character While in Mexico.
Gallegos says he had evidence he
went to Mexico
to do good deeds—he taught school and showed “good behavior†which would have
countered the argument he fled to escape prosecution. As the Attorney General observes, citing
495, trial counsel may not have wished to further emphasize Gallegos’s flight
to Mexico, and the record does not support the conclusion there could have been
no reasonable tactical reason to forego this line of inquiry. (People
v. Anderson (2001) 25 Cal.4th 543, 569.)
Gallegos’s claim fails.
Gallegos
Has Failed to Demonstrate Error Resulting from the Gang Expert’s Testimony.
According to Gallegos, the trial court erred in allowing
Detective Lopez’s gang expert testimony.
Contrary to this testimony, Gallegos says, the evidence shows he shot,
if he shot, by mistake; there is no evidence he gained any respect; and
witnesses snitched on him. Detective
Lopez’s testimony, based on the facts of the case, was proper.
v. Vang (2011) 52 Cal.4th 1038, 1048.)
Remand
for Resentencing Is Appropriate in this Case.
Because he was 16 at the time of the shooting, Gallegos
argues, his sentence is unconstitutional.
resentencing in light of recent case law.
Gallegos’s age (along with the ages of his victims as
well as his fellow gang members) was noted repeatedly throughout the
trial. In addition, in their sentencing
memorandum, the People expressly acknowledged Gallegos’s age at the time he
committed his crimes, but emphasized the “great violence, great bodily harm, threat
of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness or callousness†evidenced by the facts of the case, as well his
flight to Mexico in avoidance of prosecution for 20 years and failure to show
any remorse for the devastation he had caused served as justification for the
maximum sentence.
Gallegos (represented by new trial counsel—and now
appellate counsel) filed a “motion to reduce sentence based on cruel and
unusual punishment,†specifically arguing the sentence the People sought to
impose on a 16-year-old offender (a term of 30 years plus 53 years to life in
state prison) violated both the United States and California
Constitutions. First, Gallegos argued,
the United States Supreme Court has consistently refused to impose the harshest
sentences on juvenile offenders. In
for example, the Supreme Court extended the prohibition against the death
penalty on all juvenile offenders under the age of 18 because of the “three
general differences between juveniles and adults. First, the Supreme Court noted that ‘[a] lack
of maturity and an underdeveloped sense of responsibility are found in youth
more often than in adults and are more understandable amount the young. These qualities often result in impetuous and
ill-considered actions and decisions.
[Citations.]’ (
“Second, ‘. . . juveniles are more
vulnerable or susceptible to negative influences and outside pressures,
including peer pressure.
[Citations.]’ Third, ‘the character
of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more
transitory, less fixed.
[Citations.]’ (
“‘These differences render suspect any conclusion that a
juvenile falls among the worst offenders.
The susceptibility of juveniles to immature and irresponsible behavior
means “their irresponsible conduct is not as morally reprehensible as that of
an adult.†[Citations.] Their own vulnerability and comparative lack
of control over their immediate surroundings mean juveniles have a greater
claim than adults to be forgiven for failing to escape negative influences in
their whole environment.
[Citations.] The reality that
juveniles still struggle to define their identity means it is less supportable
to conclude that even a heinous crime committed by a juvenile is evidence of
irretrievably bad character. From a
moral standpoint it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor’s character
deficiencies will be reformed. Indeed,
“[t]he relevance of youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals mature, the
impetuousness and recklessness that may dominate in younger years can subside.†[Citations.]’
(Id. at p. 570.)â€
Similarly, Gallegos argued, his case was analogous to
479, in which our Supreme Court stated that, in making a determination of
whether a punishment is cruel or unusual, “[w]ith respect to the offense, the
court considers ‘the totality of the circumstances surrounding the commission
of the offense in the case at bar.’ [(
Regarding the offender, courts consider his ‘individual culpability as
shown by factors as his age, prior criminality, personal characteristics, and
state of mind.’ (Ibid.)â€
Gallegos urged the trial court his case was “analogous to
Dillon, supra, in which the court
struck down a sentence imposed on a juvenile offender. In Dillon,
a 17-year-old with no criminal record joined a group of youths hoping to steal
some marijuana grown in a nearby field.
The youths knew the field was being guarded by armed men, so they armed
themselves before embarking on their night-time raid. Dillon happened on one of the armed guards,
and hearing gunfire, panicked and began shooting at the guard, fearing the
guard would shoot him. (
451-452.)
“A psychologist testified that Dillon was immature and
acted without thinking, and no contrary expert testimony was presented. (Dillon,
supra, 34 Cal.3d at p. 483.) The
trial court expressed its belief that Dillon did not pose a danger to society,
but notwithstanding that belief, the felony-murder rule required imposition of
a first degree murder penalty. (
the most severe form of a prison sentence:
Life imprisonment in state prison . . . . (
“All the other coconspirators of the raid were neither
convicted of any homicide nor received any prison sentence at all: They received the ‘proverbial slap on the
wrist[,]’ while Dillon received the ‘heaviest penalty provided by law’ at that
time. (Dillon, supra, 34 Cal.3d at p. 488.) Because the court’s analysis of Dillon’s
individual culpability, background and participation led it to conclude he had
been unjustifiably punished via the felony-murder rule, it reduced the
conviction to second degree murder, thereby permitting Dillon to serve his
sentence in CYA. (Id. at p. 489.)
“All of the conditions leading the Dillon court to reduce the sentence in that homicide are present in
Gallegos’s case. Like Dillon, Gallegos
was a young gang member. Gallegos, like
Dillon, led a crime-free life. (See
Prob. Rpt. At pp. 10, 14.) Gallegos
acted immaturely and without thinking.
(See, Dillon, supra, 34 Cal.3d
at p. 483; see also Roper, supra, 543
U.S. at pp. 569-570.) The prosecution
never even prosecuted the driver of the car and therefore, the driver never
received any punishment. Since the
incident, Gallegos has never suffered any adult convictions.
“Like Dillon, Gallegos’[s] individual culpability,
background and participation require this Court to conclude that Gallegos will
be unjustifiably punished with a determinate sentence of 30 years and an
indeterminate sentence of [53] years to life.
Such a sentence would violate the constitutional prohibitions against
cruel and unusual punishment.â€
At the January 2012 sentencing hearing, the trial court
heard argument on Gallegos’s “motion for cruel and unusual punishment.†Gallegos’s counsel reiterated: “[W]hat is so tragic about this thing is Mr.
Gallegos was 16 at the time of the incident.
And I think the court recognizes how 16 year olds are vulnerable and
have a lack of maturity and an underdeveloped sense of responsibility.
“They are more susceptible to negative influences and
outside pressures, and I think the United States Supreme Court has recognized
this. Since this has happened, he has
developed and matured into a matured human being. [T]he issue we would like the court to
consider is that . . . he is looking at a life sentence in
terms of what happened. But in fact he
was a 16 year old subject to outside influences, and it’s really unfortunate
this happened all the way around for everybody.
And so we would like the court to consider a lesser sentence based on
his background, his participation and his age.
[A]nything beyond a determinate sentence would be cruel and unusual[
given] the facts and circumstances of this case, Mr. Gallegos[’s] lack of
maturity, his young age. . . . [¶] Basically his
young age and the fact that he was impressionable and apparently got involved
with the wrong people. And so we would
like the court to consider that.â€
The prosecutor argued Gallegos’s arguments were misplaced
as the proposed sentence was not a true life-without-possibility-of-parole
sentence, and he was “appropriately being sentenced under California law.â€
After stating the court had read and considered the
probation officer’s report, the trial court inquired whether defense counsel
wished to augment that report. She
indicated she did not believe the report acknowledged that Gallegos was
teaching English at a school while he was in Mexico and submitted a letter from
the school where he worked between 1992 and 2002 which “shows good behavior and
that he never did get in any trouble in Mexico.†The trial court acknowledged this
augmentation.
Next, the trial court heard victim impact statements from
Caldera’s father, mother and brother, followed by a statement from Gallegos’s
mother who again stressed that at the time, “[Gallegos] was still very young,â€
“inexperienced, he was a minor.†She
said he had a “very good record†when he went to Mexico and was working there
and “ha[d] always been a very good son also.â€
The trial court
denied Gallegos’s motion to reduce his sentence on cruel and unusual punishment
grounds. “[B]efore I pronounce sentence
in this matter, those of us who work in courts, who handle cases such as this,
we all know that this is [a] tragedy, this is [a] tragedy for both sides.†The trial court further stated: “I am convinced that all avenues regarding
this matter have been explored by [Gallegos’s new and current appellate]
attorney who came in after the verdict was taken in this
matter . . . .â€
The trial court then sentenced Gallegos to state prison
for a term of 85 years to life plus 5 years, calculated as follows: on count 1 (Caldera’s murder, committed for
the benefit of Gallegos’s gang), a term of 25 years to life, plus an additional
and consecutive term of 5 years for the firearm enhancement, and on counts 2
through 5 (four attempted premeditated murder counts, with true findings on the
gang allegations), four consecutive terms of life with the possibility of
parole (consecutive to count 1 and consecutive to each other), with minimum
parole eligibility periods of 15 years on each of the four attempted murder
counts. The trial court reiterated: “It’s the intent of the court imposing the
full sentence, the defendant shall serve the determinate term of five years
plus life with the possibility of parole, the aggregate total minimum parole
eligibility period which is [60] years plus 25 years to life.â€
On appeal, Gallegos raises the same arguments, adding
that in Graham v. Florida (2010) __
U.S. __ [176 L.Ed.2d 825] the
States Supreme Court concluded the Eight Amendment prohibits the imposition
of a life sentence without possibility of parole for a juvenile offender who
did not commit homicide, noting “No
recent data provide reason to reconsider the Court’s observations in
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 actions of adults. Roper, 543
U.S. at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.
It remains true that ‘[f]rom a moral standpoint it would be misguided to
equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies will be
reformed.’ Ibid. These matters relate
to the status of the offenders in question; and it is relevant to consider next
the nature of the offenses to which this harsh penalty might apply.
“The Court has recognized that
defendants who do not kill, intend to kill, or foresee that life will be taken
are categorically less deserving of the most serious forms of punishment than
are murderers. [Citations.] There is a line ‘between homicide and other
serious violent offenses against the individual.’ [Citations.]
Serious nonhomicide crimes ‘may be devastating in their harm . . . but
“in terms of moral depravity and of the injury to the person and to the
public,†. . . they cannot be compared to murder in their “severity and
irrevocability.†[Citations.] This is because ‘[l]ife is over for the
victim of the murderer,’ but for the victim of even a very serious nonhomicide
crime, ‘life . . . is not over and normally is not beyond repair.’ [Citation.]
Although an offense like robbery or rape is ‘a serious crime deserving
serious punishment, [citation], those crimes differ from homicide crimes in a
moral sense.
“It follows that, when
compared to an adult murderer, a juvenile offender who did not kill or intend
to kill has a twice diminished moral culpability. The age of the offender and the nature of the
crime each bear on the analysis.†(
pp. __, 130 S.Ct. at pp. 2026-2027.)
did not address life sentences for juveniles like Gallegos who do commit
homicide.
In addition, Gallegos now cites Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 2475] (
recently determined mandatory life-without-possibility-of-parole
sentences for juvenile offenders who commit homicide violate the Eighth
Amendment’s ban on cruel and unusual punishment, emphasizing the necessity for
“the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for
juveniles.†(Italics added.)
The Miller court
explained: “Roper and Graham
establish that children are constitutionally different from adults for purposes
of sentencing. Because juveniles have
diminished culpability and greater prospects for reform, we explained, ‘they
are less deserving of the most severe punishments.’ Graham,
560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825. Those cases relied on three significant gaps
between juveniles and adults. First,
children have a ‘“lack of maturity and an underdeveloped sense of
responsibility,â€â€™ leading to recklessness, impulsivity, and heedless
risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Second, children ‘are more vulnerable . . .
to negative influences and outside pressures,’ including from their family and
peers; they have limited ‘contro[l] over their own environment’ and lack the
ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as
‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less
likely to be ‘evidence of irretrievabl[e] deprav[ity].’ Id.,
at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1.â€
(Miller, supra, 132 S.Ct. at
p. 2464.)
“[N]one 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 (as in both cases here) 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. (Miller, supra, 132 S.Ct. at p. 2465.) “Most fundamentally, Graham insists that youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of
parole.†(Ibid.) “By removing youth
from the balance—by subjecting a juvenile to the same life-without-parole
sentence applicable to an adult—these laws [at issue in Miller] prohibit a sentencing authority from assessing whether the
law’s harshest terms of imprisonment proportionately punishes a juvenile
offender. That contravenes
that imposition of a State’s most severe penalties on juveniles
offenders cannot proceed as though they were not children.†(Id. at p. 2466.)
In addition, “
life sentences as analogous to capital punishment,†[citation], makes relevant
here a second line of our precedents, demanding individualized sentencing when
imposing the death penalty.†(
2467.) “Of special pertinence here, we
insisted in these rulings that a sentencer have the ability to consider the
‘mitigating qualities of youth.’
[Citation.] Everything we said in
Roper and Graham about that stage of life also appears in these
decisions.†(Ibid.) “‘[J]ust as the
chronological age of a minor is itself a relevant mitigating factor of great
weight, so must the background and mental and emotional development of a
youthful defendant be duly considered’ in assessing his culpability.
[Citation.]†(Id. at p. 2468.)
“In light of Graham’s
reasoning, these decisions too show the flaws of imposing mandatory
life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties, by their nature,
preclude a sentencer from taking account of an offender’s age and the wealth of
characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive
the same sentence as every other--the 17-year-old and the 14-year-old, the
shooter and the accomplice, the child from a stable household and the child
from a chaotic and abusive one. And
still worse, each juvenile (including these two 14-year-olds [the defendants in
Miller]) will receive the same
sentence as the vast majority of adults committing similar homicide
offenses--but really, as Graham
noted, a greater sentence than those adults will serve.†(Miller,
supra, 132 S.Ct. at pp. 2467-2468, footnote omitted.)
“So Graham and
cases alike teach that in imposing a State’s harshest penalties, a sentencer
misses too much if he treats every child as an adult. To recap:
Mandatory life without parole for a juvenile precludes consideration of
his chronological age and its hallmark features--among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family
and home environment that surrounds him--and from which he cannot usually
extricate himself--no matter how brutal or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct and the way
familial and peer pressures may have affected him. Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for incompetencies associated
with youth--for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his to assist his own
attorneys. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most
suggest it.†(Miller, supra, 132 S.Ct. at p. 2468.)
“We therefore hold that the
scheme that mandates life in prison without possibility of parole for juvenile
offenders.†(Miller, supra, 132 S.Ct.
at p. 2469, citation omitted.) “Although
we do not foreclose a sentencer’s ability to make that judgment in homicide
cases, we require it to take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in
prison.†(Ibid.) The
distinction [between homicide and nonhomicide cases]: Graham established
one rule (a flat ban) for nonhomicide offenses, while we set out a different
one (individualized sentencing) for homicide offenses.†(Id.
at p. 2466, fn. 6.)
In People v.
Caballero (2012) 55 Cal.4th 262, 265 (Caballero),
the California Supreme Court considered whether a 110-year-to-life sentence
imposed on a juvenile convicted of nonhomicide offenses contravenes
punishment under the Eighth Amendment and concluded that it does. In Caballero,
the Attorney General had argued Graham’s
ban on life without parole sentences does not apply to juvenile offenders who
commit attempted murder, with its requisite intent to kill and that a
cumulative sentence for distinct crimes could not constitute an Eighth
Amendment violation because each sentence was permissible individually where
each included the possibility of parole within the defendant’s lifetime. (Id.
at p. 267.) The Caballero court rejected both arguments. (Id.
at pp. 267-268.)
“In Miller, the
United States Supreme Court extended Graham’s
reasoning (but not its categorical ban) to homicide cases, and, in so doing,
made it clear that Graham’s ‘flat ban’ on life without parole sentences
for juvenile offenders in nonhomicide cases applies to their sentencing
equation regardless of intent in the crime’s commission, or how a sentencing
court structures the life without parole sentence. (Miller,
supra, 567 U.S. at pp. ___, ___ [132
S. Ct. at pp. 2465, 2469].) The high
court was careful to emphasize that Graham’s
‘categorical bar’ on life without parole applied ‘only to nonhomicide
crimes.’ (Id. at p. ___ [132 S. Ct. at p. 2465].) But the court 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.’ (Miller, supra, 567 U.S.
___ [132 S. Ct. at p. 2465].)
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.†(Caballero, supra, 55 Cal.4th at pp. 267-268.) The Caballero
court expressly acknowledged that Miller
requires sentencers in homicide cases
‘to take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.’ (Miller,
supra, 567 U.S. at p. __ [132
S.Ct. at p. 2469].) We leave Miller’s application
in the homicide context to a case that poses the issue.)â€
supra, 55 Cal.4th at p. 268, fn. 4, italics added.)
Gallegos’s sentencing predated Miller, supra, 567 U.S.
__ [132 S.Ct. 2455], and Caballero,
supra, 55 Cal.4th 262. Although the
record establishes defense counsel argued the trial court should consider the
factors distinguishing juvenile offenders from adult offenders as discussed in
concerned imposition of the death penalty for
the trial court recognized the significance for sentencing purposes of
Gallegos’s youth (and all that accompanies youth) in imposing the “functional
equivalent†of a life without possibility of parole sentence. In light of the Supreme Court’s admonition
that a sentence of life without possibility of parole is to be imposed on “the
reflects irreparable corruption,†(
S.Ct. at p. 2469], italics added), we are persuaded the preferred course in
this case is to remand the matter so the trial court will have the opportunity
to reconsider its sentence in light of Miller.
DISPOSITION
The judgment is affirmed. The case is remanded for resentencing
consistent with the views expressed in this opinion.
WOODS,
J.
We
concur:
PERLUSS, P. J.
ZELON, J.
name="_ftn1" title="">
[1] Garay
then destroyed the gun with a grinder.
He later testified at trial under a grant of immunity and said he had
used the same gun six months earlier to commit a shooting from a white Cutlass
with Gallegos driving; Gallegos said to “just blast†someone he thought was
from a rival gang.
name="_ftn2" title="">[2] After that phone
conversation, Garcia did not hear from Gallegos for six months.
