P. v. Hightower

`Filed 6/19/08 P. v. Hightower CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Patricia Hightower.

John Ward, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Trumble.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

20-year-old defendant Kevin Trumble (Kevin) and 18-year-old defendant Jessica Hightower (Jessica) were frustrated with Jessicas parents disapproval of and interference with their relationship. They conspired to kill Jessicas parents so that they could be together. After collaborating on a plan of attack, Kevin went to Jessicas house in the middle of the night and stabbed Jessicas father in the chest. Jessicas father sustained a flesh wound but was otherwise unharmed. Jessica helped Kevin escape; however, the two were later detained and confessed.

Kevin and Jessica were charged with attempted murder (Pen. Code,^[1] 664, 187, subd. (a)) and conspiracy to commit murder. ( 182, subd. (a)(1).) It was further alleged that the attempted murder was willful, deliberate and premeditated; that both codefendants personally inflicted great bodily injury ( 1192.7, subd. (c)(8), 1022.7, subd. (a)); and that Kevin personally used a knife. ( 1192.7, subd. (c)(23), 12022, subd. (b)(1).)

The two codefendants were jointly tried in front of separate juries. Each defendant was found guilty of attempted murder and conspiracy to commit murder. Jessicas jury found the attempted murder was willful, deliberate, and premeditated. Kevins jury found true the special allegation that Kevin personally used a knife but did not personally inflict great bodily injury.

The trial court sentenced Jessica to life without the possibility of parole,^[2]stayed that sentence pursuant to section 654, and also sentenced her to 25 years to life for the conspiracy. The court sentenced Kevin to 25 years to life for the conspiracy, and imposed the middle term of seven years for the attempted murder, which was stayed pursuant to section 654. A one-year term for the knife enhancement was also imposed and stayed.

On appeal, Jessica contends that the trial court made two instructional errors: (1) it gave an implied malice instruction for attempted murder, and (2) gave erroneous mental elements for conspiracy. Kevin urges that his sentence of 25 years to life is cruel and unusual punishment. Each defendant joins in the others arguments to the extent they inure to his or her benefit. We reject defendants contentions and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Kevin and Jessica were involved in a romantic relationship, of which her parents disapproved.

Early in the morning of April 16, 2004, Jessicas father, Marc Hightower (Marc) was awakened by the sound of his dog barking. Shortly thereafter, he was awakened again, this time by Kevin stabbing him in the chest with a knife. Marc told police that just before he was stabbed, he heard Jessica tell Kevin, Just do it.

After the assault, Kevin remained in the doorway of Jessicas bedroom. Marc called 911, and begged Kevin to leave so that he (Marc) could get help. Kevin left when Jessicas mother, Donna Hightower (Donna), took the telephone from Marc and spoke with the dispatcher.

Marc was transported to a hospital, where he was treated and released. No stitches or surgery were required. Marc testified that he experienced pain for several months and had difficulty moving his shoulder for several weeks following the stabbing. He took time off from his job because of the stab wound.

Deputy Don Fortney responded to the emergency call. He found Jessica sitting outside the front door, being very quiet and not showing any emotion. Inside the home, Deputy Fortney found Donna pressing a cloth to Marcs wound. He noticed a good deal of blood. Other deputies arrived and the paramedics were summoned.

Deputy Forney asked Jessica what had happen. Jessica said she had woken up to use the bathroom and while in the bathroom, she heard screaming and yelling. When she came out, she saw Kevin standing in front of her parents with a bloody knife. Deputy Fortney told Jessica he did not think she was telling him the truth. Jessica then said that she and Kevin planned to kill her father because he would not let them be together. Jessica said they had been planning it for approximately a year. Kevin called her around midnight, told her that he had all the stuff, and was on his way to her house to kill her father. At approximately 2:30 a.m., Kevin arrived at her house and knocked on her window. The window had been propped open, and Kevin used a screwdriver he had with him to unscrew the screen. They waited for approximately 30 minutes for her parents to fall asleep.

Jessica told Deputy Fortney that Kevin said, Okay, lets do this. Lets do this. Jessica went to the bathroom to wait because she could not watch. She heard screaming, looked out the bathroom door, and saw Kevin with a knife. Her parents were begging Kevin to leave. Kevin ran past Jessica, and she followed him into her bedroom. Kevin climbed out the window and, before he left, told Jessica he had forgotten his backpack and asked her to hide it. Jessica put the backpack under her bed. Deputy Fortney found the backpack underneath her bed. The backpack contained a knife.

Deputy Fortney placed Jessica in the back of his patrol car. He gave her a Miranda^[3]warning, which she waived, and she agreed to speak with the deputy. Jessica said the plan was to kill both her mother and father. She and Kevin would then steal the two family cars and her mothers credit cards, and drive to Miami to live together. Kevin had designated an area in Palm Springs where they would burn the bodies.

Earlier that evening, Deputy Ole Williams had been patrolling the Morongo reservation. At approximately 1:38 a.m., he saw Kevin riding his bicycle. The bicycle did not have any lights and had only one rear reflector, which was improper lighting for nighttime operation. After running Kevins name through dispatch, Deputy Williams gave Kevin a verbal warning and released him. He observed Kevin wore black clothing and carried a backpack.

Later that evening, Deputy Williams received a dispatch that an incident had occurred and the suspects name was Kevin Trumble. The deputy recognized this name from his earlier contact with Kevin. He located Kevin walking onto a freeway on-ramp with the same bicycle he had earlier; however, he did not have the backpack. Kevin told Deputy Williams that he had gotten rid of a buck knife and a pair of gloves on the freeway.

Detective George Stanley interviewed Kevin. Kevin said that he and Jessica had been living together but that her parents came and took her home. Kevin claimed that Marc threatened to hunt him down and kill him. Kevin also said that Jessica wanted her parents dead because they were interfering with her life. Kevin agreed to kill Jessicas parents. The plan was to kill Jessicas parents, bury their bodies, and run away together to Miami.

Kevin admitted to Detective Stanley that he stabbed Marc with a kitchen knife. He threw the knife and the gloves he wore during the stabbing into the bushes. He and Jessica had decided on the date for the killing a couple of days earlier. On the night of the stabbing, Kevin took a knife from his parents kitchen and rode to Jessicas house on his bicycle. Jessica had asked him to force open a window with a screwdriver to get into the house. After Kevin was in the house, Jessica opened her door to see if her parents were sleeping. Once she saw they were asleep, Jessica and Kevin left her bedroom; Jessica went back and turned on her bedroom light so that Kevin could see better. Kevin entered the room and stabbed Marc. The plan was to kill both of Jessicas parents and their 6-year-old son, Vern; however, as soon as Kevin stabbed Marc, he realized what he was doing and retreated. He said he was disoriented and remained in the living room while Marc and Donna called the police. Jessica pushed him out through the same window he had entered, telling him how sorry she was for what happened. Kevin admitted to Detective Stanley that he had been angry at Jessicas parents for taking her home from the trailer where he and Jessica had been living together.

Deputy Fortney and Detective Stanley interviewed Jessica at the police station and the tape of that interview was played for the jury.

Jessica and Kevin were placed in a room together and their conversation was recorded. That tape was played to Jessicas jury. On the tape, Jessica told Kevin that she loved him and was sorry. Portions of that conversation were also played to Kevins jury. In that tape, Jessica told Kevin that she did not tell officers that he had told her to grab a bat and start swinging during the incident

Additional facts will be provided as part of the discussion within each separate contention.

DISCUSSION

A. Erroneous Implied Malice Instructions Did Not Prejudice Jessica.

The trial court gave the following instructions for attempted murder:

The defendant is accused in Count 1 of having committed the crime of attempted murder, [in] violation of Section[s] 664 and 187 of the Penal Code.

Every person who attempts to murder another human being is guilty of a violation of Penal Code Section[s] 664 and 187.

Murder is the unlawful killing of a human being with malice aforethought. In order to prove an attempted murder, each of the following elements must be proved:

1. A direct but ineffectual act was done by one person towards killing another human being. [] [A]nd []

2. The person committing the act harbored express malice aforethought. Namely, a specific intent to kill unlawfully another human being.

In deciding whether an act . . . was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other.

^[]Mere preparation, which may consist of the planning or of the devising or obtaining or arranging the means for its commission is not sufficient to constitute an attempt.

^[]However, acts of a person who attempts to kill a person would constitute an attempt where these acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing. The progress of which will be completed unless interrupted by circumstances not intended in the original design. (CALJIC No. 8.66Attempted Murder.)

Malice may be either express or implied. Malice is express when there is manifested an intention, unlawfully, to kill a human being.

Malice is implied when, [1.] the killing resulted from an intentional act, [2.] the natural [consequences] of the act are dangerous to human life, and [3.] the act was deliberately performed with knowledge of danger to conscious disregard for human life.

When it is shown that an attempted killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish mental state with malice aforethought.

The word aforethought does not imply deliberation of the lapse of a considerable time. It only means that the required mental state must precede, rather than follow, the act. (CALJIC No. 8.11Malice AforethoughtDefined.)^[4]

Jessica contends that her attempted willful, deliberate, premeditated murder conviction must be reversed because the trial court committed instructional error. She complains the jury was improperly instructed that it could find her guilty of attempted murder if she harbored either express or implied malice. She claims that the instructional error was prejudicial because an attempted murder conviction must be premised upon express, and not implied malice, and the evidence of whether she had the specific intent to kill was equivocal.

Instructional errors are reviewable on appeal to the extent they affect a defendants substantial rights, such as the omission of an element of a substantive offense. (People v. Prieto (2003) 30 Cal.4th 226, 247, 256.) The Chapman^[5]test is the appropriate standard in an attempted murder case where conflicting specific intent and implied malice instructions have been given. (People v. Lee (1987) 43 Cal.3d 666, 676 (Lee).)

The People agree that attempted murder requires the specific intent to kill (People v. Smith (2005) 37 Cal.4th 733, 739), and that implied malice instructions are not to be given for attempted murder. (People v. Viscotti (1992) 2 Cal.4th 1, 59 (Viscotti).) However, the People assert that Jessica was not prejudiced by the trial courts implied malice instructions because the jury was clearly apprised that it had to find Jessica harbored express malice aforethought[,] [n]amely, a specific intent to kill . . . .

We find that the trial court erred in instructing the jury on implied malice. Contrary to the assertion of the People, we do not agree that the instruction defining both express and implied malice was used to show the jury what constituted express malice, as opposed to what constituted implied malice. Instructing a jury in an attempted murder case that malice can be either express or implied can be confusing. (People v. Murtishaw (1981) 29 Cal.3d 733, 764-765.) Express malice is an intent to kill, whereas implied malice is doing an act dangerous to human life but not necessarily intending that the act result in death. (People v. Swain (1996) 12 Cal.4th 593, 602-603.) Therefore, implied malice cannot support a conviction of an attempt to commit murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328.)

To prove attempted murder, the prosecution has the burden to show defendant had the specific intent to commit murder plus a direct but ineffectual act towards its commission. (Lee, supra, 31 Cal.4th at pp. 623-624.)

The California Supreme Court found it was error to give implied malice instructions in two attempted murder cases: Lee, supra, 43 Cal.4th at p. 670 and Visciotti, supra, 2 Cal.4th at p. 58.

In Lee, the court found that the error was harmless beyond a reasonable doubt because, (1) the number of times the court told the jury a conviction of attempted murder requires proof of the specific intent to kill, (2) the courts consistent reference to malice as a mental state and intent to kill as the specific intent required, and (3) the argument of counsel directed specifically at the requirement of intent to kill and suggesting that both specific intent to kill and malice had to be proven by the prosecution, they concluded beyond a reasonable doubt that the jury believed proof of both malice and intent to kill was required. (Lee, supra, 43 Cal.3d at p. 678.)

In Visciotti, the court concluded the instructional error was harmless beyond a reasonable doubt. (Visciotti, supra, 2 Cal.4th at p. 59.) The jury was instructed that the defendant must have a specific intent to commit murder, and murder had been defined. The prosecutor argued implied malice instructions were inapplicable to attempted murder, that attempted murder required express malice and an intent to kill, which was demonstrated when the defendant fired into the victims face at point-blank range. (Ibid.)

In a third case, People v. Carpenter (1997) 15 Cal.4th 312 (Carpenter), the court found giving implied malice instructions in an attempted murder case was not a misinstruction. (Id. at p. 391.) It held that the trial court properly instructed that an attempt requires a specific intent to commit the crime and that the crime of attempted murder requires the specific intent to commit murder. It also stated the district attorney correctly argued that attempted murder would require the intent to unlawfully kill another human being, the intent required for murder. (Ibid.)

The situation here is similar to Lee, Visciotti, and Carpenter. The prosecutor argued that for attempted murder, the law required defendant to harbor express malice aforethought and that malice aforethought is a specific intent to kill, unlawfully, another human being. He insisted that specific intent to kill was obviously proven by the fact [Kevin] put the knife in; right? There is no better evidence of that element than the actual act of plunging the knife in a man as he sleeps in his own bed. He posited that Jessica was just as responsible as Kevin was, as if she were holding the knife, under an aider and abettor theory. The prosecutor never mentioned implied malice to the jury.

The instructions, read as a whole, point to the need for the jury to find express malice. The trial court instructed the jury twice that it had to find Jessica had the specific intent to kill. It gave CALJIC No. 8.66 which said that a specific intent to kill another human being must be proven. It also gave CALJIC No. 3.31 which states that for attempted murder, there must exist a union between the act and specific intent in the mind of the perpetrator and without the specific intent, the attempted murder was not committed, and referred back to the attempted murder instruction.

We disagree with Jessicas claim that the evidence of specific intent to kill her father was equivocal and not clear cut. On a Thursday afternoon, Jessicas counsel called her as a witness in her defense case. Jessica testified that she was angry, upset, irritated, and frustrated that her parents were adamant about not letting her see Kevin. She felt upset when she got in trouble when Kevin called her house. She said it was Kevins idea to hurt her parents. She admitted she unscrewed her window a couple of weeks before the April incident and always left the window open to get air inside her stuffy room, and not for Kevin to sneak in.^[6] She claimed she woke up when she saw Kevins shadow and watched him unscrew the screen. She let him in because she was used to doing what he wanted her to do. She was scared that Kevin would harm her and her family. She flatly said that she did not plan to help Kevin kill her parents.

However, on the next day of trial, a Tuesday morning, Jessica essentially retracted her Thursday afternoon testimony. Although claiming no memory, Jessica admitted during the prosecutors cross-examination that she lied to Deputy Fortney when she told him she was not involved. She said it was very easy to lie to the police because she wanted to protect herself and did not want to get caught for what she and Kevin had planned together.

She confessed that there was a plan to kill her father and her entire family and the whole point of getting rid of her family was so that she could have money and cars, and see Kevin. Again claiming no recall, Jessica admitted that in her taped jailhouse conversation with Kevin, she told him she was sorry that she couldnt hit her father with a baseball bat because [l]ooking at [her] dad fucked [her] all up. She admitted that she told Kevin on the recording that she felt nothing when he stabbed her father. She admitted she was an active participant in the conspiracy to kill her father. She admitted that she knew about the plan and they planned it together but she did not know the details. She went on to concede, however, that she told Kevin about her moms credit card, and had the window open for Kevin, and used a screwdriver she retrieved from a toolbox on her back porch to open the window. She testified that she let Kevin into her room that night. After Kevin stabbed her father, she followed Kevin into her bedroom and helped him escape so he would not get caught.

During her trial counsels redirect examination, Jessica testified that she was guilty of conspiring to commit murder because she knew about the plan and didnt stop it, and not because she helped Kevin plan it. She finally admitted that she kept the window open for Kevin to come in and kill her father.^[7]

In his closing argument, Jessicas defense counsel was at a loss to explain her trial admissions that she knew of the plan and left the window open. He said, Her mother, her father, states [sic] that she is a lady of good character. I do not know what else to say. For that I am sorry. Defense counsel was able to muster the following argument:

I asked her last Thursday, Did you help Kevin try to kill your parents? And she said.

No. I did not try to help him.

But then on Monday, this Monday,^[[8]] she told you something else. She told you she was guilty. I asked the question.

I dont know. Is it because of her character? Is it because she is the type of person that could be easily swayed? Easily persuaded, willing to say anything? Thats something that you can consider.

She also told you that she was guilty. What exactly did that mean? Did she tell you because she was guilty because she felt bad about the situation? Yes. That she felt bad about the plan that Kevin told her, and yet did nothing? Yes. She told you that. But that doesnt make her guilty.

Knowing of the plan and not doing anything doesnt make her guilty. Even though she left the window open doesnt make her guilty, if she just knew of the plan. (Italics added.)

Reversal is not required because it appears beyond a reasonable doubt that this error did not contribute to the verdict. (People v. Petznick (2003) 114 Cal.App.4th 663, 681 (Petznick).) Based on this record, we find that the jury could find Jessica had the specific intent to kill her father. Thus, the trial courts error in giving implied malice instructions were harmless beyond a reasonable doubt.

B. The Trial Court Properly Instructed the Jury It Had to Find a Specific Intent to Kill in Order to Convict Jessica of Conspiracy.

The trial court gave several instructions on conspiracy, including CALJIC Nos. 8.69 (conspiracy to commit murder), 6.01 (abandonment of attemptwhen not a defense), 6.02 (abandonment of attemptwhen a defense), 6.11 (joint responsibility), 6.12 (conspiracyproof of express agreement not necessary), 6.13 (association alone does not prove membership in conspiracy), 6.18 (commission of act in furtherance of a conspiracy does not itself prove membership in a conspiracy), 6.20 (withdrawal from conspiracy), 6.22 (conspiracycase must be considered as to each defendant).

Jessica contends that none of those instructions specified the mental element of the target crime of murder. She argues that the courts conspiracy instructions failed to point out that the jury had to find Jessica personally had the specific intent to kill.^[9]

CALJIC No. 8.69 provides in pertinent part:

In order to prove this crime, each of the following elements must be proved:

1. Two or more persons entered into an agreement to kill unlawfully another human being;

2. [Each] [At least two] of the persons specifically intended to enter into an agreement with one or more other persons for that purpose;

3. [Each] [At least two] of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and

4. An overt act was committed in this state by one or more of the persons [who agreed and intended to commit murder.]

The trial court modified this instruction by selecting each and by deleting at least two for the mental elements listed in numbers 2 and 3.

Because conspiracy requires proof that two or more persons or at least two of the persons had the specific intent to agree and the specific intent to commit the target crime,^[10]Jessica claims that CALJIC No. 8.69 did not tell the jury that defendant intended to enter an agreement to kill. Jessica adds that it was incumbent upon the trial court to point out that there was no conflict between CALJIC No. 8.69, which required express malice, and CALJIC No. 6.11, which does not require express malice because a coconspirator is criminally liable under the natural and probable consequences doctrine.

A conspiracy to commit murder may exist if . . . at least two of the participants intended to kill. [Citation.] (Petznick, supra, 114 Cal.App.4th at p. 680, fn. omitted.) A defendant can be guilty of this conspiracy only if he or she is one of the participants who harbored this intent. (Id. at p. 681.) CALJIC No. 8.69 advised the jury that the People were required to prove, At least two of the persons to the agreement harbored express malice aforethought.

It is unfathomable that any reasonable juror would have understood the instruction required anything less than two people, each with the specific intent, made an agreement, and two people, each having the specific intent to kill. Unlike other cases, here there were only two people involved in the conspiracyKevin and Jessica. It is true if there were more than two coconspirators, it could be misleading to instruct at least two persons intended to agree. This could provide a gap where a jury does not find a defendant personally intended to agree to find them guilty. (Petznick, supra, 114 Cal.App.4th at p. 681.) However, under no stretch of the imagination could the instruction be misconstrued because there were only two people conspiring to commit murder. (Cf. Id. at p. 663 [four coconspirators]; People v. Morante (1999) 20 Cal.4th 403 [four coconspirators]; People v. Cook (2001) 91 Cal.App.4th 910 [four coconspirators].)

Moreover, the trial court selected the term each as the subject of the mens rea to agree and the mens rea of the target offense. It deleted the phrase at least two from elements two and three. The use of the word each clarified for the jury that every person in the conspiracythat is, both Kevin and Jessicahad to have the specific intent to agree. Under the instructions given, the jury could not have convicted defendants of attempted murder if they did not also believe that each of them acted with the intent to kill necessary for a conviction of conspiracy to commit murder.

Further clarification was given to the jury in order to assess Jessicas culpability. The trial court gave CALJIC No. 3.01 which advised the jury that a defendant was an aider and abettor only if there was proof he or she acted [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime. This meant that Jessica and Kevin would not have been convicted of attempted murder if they did not also harbor an intent to kill. The court also gave CALJIC No. 6.10 which stated that [a] conspiracy to commit murder is an agreement entered into between two or more persons with [the] specific intent to agree to commit the crime of murder with the further specific intent to commit that murder, followed by an overt act. Also given was CALJIC No. 6.22 which charged the jurors to determine whether each individual joined the conspiracy: Each defendant in this case is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally[,] and knowingly joined with any other or others in the alleged conspiracy.

Viewing the instructions in their totality, we conclude there was no reasonable likelihood that the jury misunderstood the courts conspiracy instructions. (People v. Harrison (2005) 35 Cal.4th 208, 252 [defendants argument that the jury was confused by the courts instruction was rejected when there was no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction].) The attempted murder convictions show that the jury believed each defendant acted with the requisite intent for the conspiracy charge. There was no defect in CALJIC No. 8.69. The conspiracy instructions adequately conveyed the requirement that Jessica had to have harbored a specific intent to kill. (See People v. Morante, supra, 20 Cal.4th at p. 416; Petznick, supra, 114 Cal.App.4th at p. 680.)

C. Kevins Life Sentence Does Not Constitute Cruel and Unusual Punishment.

Kevin argues, by citing a concurring United States Supreme Court opinion in Krulewitch v. United States (1949) 336 U.S. 440,445-446, that unfair sentencing results when conspiracy is charged in addition to the substantive offense. He asserts that his 25-years-to-life sentence constitutes cruel and unusual punishment in that the life sentence imposed on the conspiracy to murder charge outstrips the seven-year midterm for the attempted murder substantive offense, plus the one-year consecutive term for personal use of the knife.

Kevin contends his sentence is grossly disproportionate to his culpability as it was Jessica who was the leader of the conspiracy and he was just a follower, and thus was less culpable. He asserts his culpability is also muted because he stopped his attack upon Marc after the first unsuccessful blow and then just stood there until persuaded by Marc to leave. He maintains that the only available penalty of 25 years to life for conspiracy to commit murder should not apply to him because his jury could not agree on the premeditation finding. Therefore, he should not be punished for conspiracy to murder, which is a premeditated and deliberate act.^[11] Kevin also claims that his lack of serious prior offenses and his mental and physical medical problems of depression, inability to function, being heavily medicated, confused, and forgetful weighs more towards a mitigated sentence.^[12]

Punishment is cruel and unusual under the Eighth Amendment of the United State Constitution if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173; see also Ewing v. California (2003) 538 U.S. 11, 21; Lockyer v. Andrade (2003) 538 U.S. 63, 72.) Because a sentence that is constitutional under the California criteria for cruel and unusual punishment is also constitutional under the Eighth Amendment, we evaluate defendants claim under California Supreme Court authority. The federal Constitution affords no greater protection than the state Constitution. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez).)

Under article I, section 17 of the California Constitution, cruel and unusual punishment occurs when a sentence is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) The Lynch court identified three techniques to review disproportionality: First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions. [Citation.] (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; People v. Ingram (1995) 40 Cal.App.4th 1397, 1413-1414, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 559, fn. 8.)^[13]

As to Kevins first claim that his sentence for conspiracy to commit murder should not be greater than the substantive offense of murder, we find that his sentence is not excessive when compared to sentences for more serious crimes in California.

The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Gonzales (2001) 87 Cal.App.4th 1, 16.) Courts will not interfere in this process unless a statutory scheme prescribes a penalty too severe in relation to the crimes as to violate the constitutional prohibition. (People v. Dillon (1983) 34 Cal.3d. 441, 477-478 (Dillon); Lynch, supra, 8 Cal.3d at pp. 423-424.)

Whether a particular punishment is disproportionate to the offense is . . . a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. (Lynch, supra, 8 Cal.3d at pp. 423.) Mere length of imprisonment is insufficient to demonstrate the punishment is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (Id. at p. 424, fn. omitted.)

Conspiracy to commit murder is, as a matter of law, conspiracy to commit first degree murder. (People v. Cortez, supra, 18 Cal.4th at pp. 1237-1238.) The sentence to be imposed for the crime of conspiracy to commit murder is the same as first degree murder,^[14]which in this case, is 25 years to life.^[15]

Because conspiracy is a distinct offense, it is a matter for legislative determination whether to punish a conspiracy to do an act more severely than the doing of the act itself. [Citations.] The rationale for punishing conspiracy more severely than the offense that is the object of the conspiracy is that a conspiracy increases the likelihood that the criminal object successfully will be attained, and makes more likely the commission of crimes unrelated to the original purpose for which the combination was formed. [Citations.] Collaboration in a criminal enterprise significantly magnifies the risks to society by increasing the amount of injury that may be inflicted. Public policy therefore requires that criminal conspirators be held liable whether or not their scheme actually is carried out, thus justifying intervention by the state at an earlier stage in the course of that conduct. [Citations.] (People v. Morante, supra, 20 Cal.4th at p. 417, fn. 5.)

The trial court had no authority to impose anything other than a life sentence. In its wisdom, the Legislature has seen fit to require an indeterminate life sentence be imposed for conspiracies to commit attempted murder. We have no quarrel with the Legislatures rationale that a conspiracy to commit murder should be punished more severely than the target offense of murder. It is plausible to demand a greater sentence if there is greater risk to society resulting from criminal collaboration. The Legislatures pronouncement is not excessive as to violate the constitutional proscription against cruel or unusual punishments. Such a finding is indeed an exquisite rarity. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) Because such a finding is so rare, appellant must overcome a considerable burden in convincing us his sentence was disproportionate to his level of culpability. (Id. at p. 1197.) Defendant failed to meet his burden to establish his punishment was unconstitutional under either the state or federal Constitutions.^[16] (People v. King (1993) 16 Cal.App.4th 567, 572.)

With respect to Kevins second claim that his indeterminate life sentence is unconstitutionally disproportionate as applied to him based on the Lynch offense/offender test, we conclude that his attempted murder of Jessicas father was sufficiently serious to justify a life sentence.

Under the Lynch and Dillon analyses, we examine the nature of the crime, and the nature of the offender. (See Lynch, supra, 8 Cal.3d 410; Dillon, supra, 34 Cal.3d at p. 479.) The nature of the offender inquiry reviews whether the punishment is grossly disproportionate to the defendants individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. [Citations.] (Martinez, supra, 76 Cal.App.4th at p. 494.) The nature of the offense examines the circumstances of the offense, including its motive, the extent of the defendants involvement in the crime, the manner in which the crime was committed, and the consequences of the defendants acts. (People v. Hines (1977) 15 Cal.4th 997, 1078.)

With respect to the nature of the offense, we agree with the People that the crime was reprehensible in that Kevin intended to kill a man merely because that man disapproved of the relationship between his daughter and Kevin. Because Jessicas familys disapproval interfered with an unfettered relationship, Kevin and Jessica spent over a year plotting the murder. Removing Marc from the picture eliminated any frustration of Kevins desire to be with Jessica.

The conspiracy was planned with sophistication. Kevin packed a backpack with a knife, hot dogs, a portable CD player, a first aid kit, a roll of black electrical tape, a long-sleeved shirt, pliers, and a screwdriver. Kevin unscrewed the screen to Jessicas window and did not go through a different window. Kevin called Jessica several times before he came over. Kevin arrived at the Hightower residence at 2:00 a.m. and waited with Jessica in her bedroom for her parents to fall asleep. Most importantly, Kevin was the one who personally used the knife and was the actual stabber. The fact that Marc was injured but not killed does not lessen the seriousness of the offense. A jury found defendant had the specific intent to kill Marc, which triggered the imposition of an indeterminate life sentence. (People v. Morales (1992) 5 Cal.App.4th 917, 930.)

With respect to the nature of the offender, Kevins reliance on his youth, lack of a prior criminal record, and medical history is misplaced. Although Kevin was only 20 years old and in love, he was not a juvenile. While there was evidence that he suffered from depression and prescription side effects, we agree with the People that the conspiracys planning and sophistication militates against a finding of diminished capacity. Moreover, the lack of a significant prior record is not determinative by itself. (Martinez, supra, 76 Cal.App.4th at p. 497.)

Defendant, having attempted to kill someone who stood in the way of something he wanted, represents a significant danger to society. We conclude that defendants 25-years-to-life sentence for conspiracy to commit murder was not cruel and unusual punishment under the state and federal Constitutions, as it was not grossly disproportionate to the crimes for which he was convicted.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of judgment and its minute order in accordance with the views expressed above (ante, fn. 2), and further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P.J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] A defendant convicted of attempted murder is subject to a sentence of life with the possibility of parole if the jury finds that the attempted murder was willful, deliberate, and premeditated murder. (People v. Seel (2004) 34 Cal.4th 535, 540-541.) Neither party raised the issue of the trial courts error in sentencing Jessica to life without the possibility of parole rather than the legal sentence of life with the possibility of parole. Having reviewed the record, we note that the trial courts November 17, 2006, minute order incorrectly ordered that Jessica be sentenced to life without the possibility of parole. On the abstract of judgment, neither of the boxes is checked indicating whether the sentence is Life without the possibility of parole, or Life with the possibility of parole. We direct the trial court to amend the abstract of judgment and its minute order to sentence Jessica to life with the possibility of parole and to stay that sentence. The abstract of judgment correctly reflects that the attempted murder conviction (count 1) was stayed and Jessica was sentenced to 25 years to life for the conspiracy to commit murder (count 2).

^[3]Miranda v. Arizona (1966) 384 U.S. 436.

^[4] [T]he mental state comprising malice is independent of that encompassed within the concepts of willfulness, deliberation, and premeditation. (People v. Neito Benitez (1992) 4 Cal.4th 91, 103.)

^[5]Chapman v. California (1967) 386 U.S. 18, 24.

^[6] Kevins defense counsel caught her obfuscating the evidence when he asked her, [h]ow many times did you open that window, waiting for Kevin? Jessica replied, Not many. When asked, How many? she said, Just that once. When asked is it just once, or not many, Jessica said Just that once. Kevins defense counsel asked her, Did you figure out that you might have said something that got you in trouble right now? Is that what happened? Jessica said, Yes. She agreed that she wanted to make sure the jury knew it wasnt her idea and that it was all Kevins fault.

^[7] She understood how awful it sounded for her to testify that it was typical for Kevin to promise and then not to follow through on killing her family.

^[8] Jessicas testimony to which her attorney refers actually occurred on a Tuesday, February 21, 2006.

^[9] Omitting elements from offenses is instructional error that is not waived on appeal for failure to object because a trial court has a sua sponte duty to properly instruct the jury. (See People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, fn. 5.)

^[10] Jessica admits, based on the evidence, the jury must have understood that the conspiracy only involved two people: Jessica and Kevin.

^[11]People v. Cortez (1998) 18 Cal.4th 1223, 1237-1238.

^[12] Kevins only prior record was a 2001 conviction for leaving the scene of an accident after causing property damage without leaving proper notice.

^[13] While the determination of whether a punishment is cruel and unusual is a question of law for the appellate court, the underlying disputed facts must be viewed in the light most favorable to the judgment. (Martinez, supra, 76 Cal.App.4th at p. 496.)

^[14] Section 182, third paragraph following subdivision (a)(6), provides: If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.

^[15] First degree murder may be punished by death, life without the possibility of parole, or 25 years to life. ( 190, subd. (a).)

^[16] Defendant has preserved this issue on appeal by objecting below on state and federal constitutional grounds of cruel and unusual punishment.