P. v. Lynch
Filed 6/26/12 P. v. Lynch CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DARYL LYNCH,
Defendant and Appellant.
B232245
(Los Angeles County
Super. Ct. No. BA349702)
APPEAL from a judgment of the
Superior Court of
County, Lisa B. Lench, Judge.
Affirmed.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Daryl
Lynch appeals from the judgment entered following a jury trial that resulted in
his convictions for first degree felony
murder, carjacking and attempted carjacking, second degree robbery, and evading
an officer, causing death. The trial
court sentenced Lynch to life in prison without the possibility of parole. Lynch contends the evidence was insufficient
to support the jury’s special circumstance findings, as well as his convictions
for murder, attempted carjacking, and robbery; the People improperly alleged
special circumstances in conjunction with a felony-murder theory; and his
sentence constitutes cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
a.
At approximately 11:15 a.m. on November 27, 2008,
Thanksgiving Day, Lorene Simpson and her boyfriend, Charles Hart, drove to a
Von’s Market in Lincoln Heights in Hart’s four-door Jeep Liberty and parked in
the market’s parking lot. Hart went
inside the Von’s store, taking the Jeep’s keys with him, while Simpson and her
two dogs waited outside in the Jeep. The
Jeep’s left back window was half open; the other windows were “cracked” to
allow for air circulation. The doors
were unlocked.
Appellant Lynch, who was 19 years
old, was “standing around” in a corner of the parking lot, alone. When Hart entered the store, Lynch approached
the passenger side of the Jeep where Simpson was seated and jiggled the handle
of the door, attempting to enter the car.
Simpson quickly locked the doors.
Lynch then walked to the driver’s side of the vehicle, reached through
the half-open back window, unlocked the driver’s side door, and reached in and
felt around the ignition as if searching for the car keys. Simpson exited the Jeep and screamed for
Lynch to get away from the car. Lynch
ignored her and continued looking for the keys.
He picked up Hart’s iPhone, which was on the driver’s seat. Simpson continued screaming and threw a soft
drink that she had been holding at Lynch.
Lynch threw the iPhone to the ground and moved away from the Jeep. Hart ran to the center of the parking lot and
“screamed for help at the top of [her] lungs.”
Meanwhile, Raymond Ardiles had been
in the Von’s store, unsuccessfully attempting to cash some checks. He had left his white Toyota Corolla in the
Von’s parking lot. When he returned to
his car, he placed the keys in the ignition and the checks he had attempted to
cash in the car. He heard Simpson
screaming and observed Lynch attempting to enter the Jeep, which was parked
approximately three spaces away from his Corolla.
Lynch turned his attention to
Ardiles, who was at that point on the telephone with his girlfriend. Lynch looked toward Ardiles and walked to the
passenger side of the Corolla. He
punched the passenger side window as if trying to break it. He then walked to the driver’s side of the
Corolla, opened the door, pulled Ardiles from the car, punched Ardiles in the
back of the head, and drove away, almost striking Ardiles with the car as he
fled. Lynch sped from the parking lot,
driving erratically, while Ardiles chased him on foot while at the same time
calling 911. Simpson also called 911.
Los Angeles Police Officer John
Talbot, who was on patrol on his motorcycle, was busy issuing a ticket to a
motorist at the intersection of Hill Street and Olympic Boulevard. Talbot heard the sound of a vehicle being
driven at an excessive speed. He looked
up and saw Lynch speeding in Ardiles’s Corolla, driving approximately 60 miles
per hour in a 35-mile-per hour zone.
Lynch ran a red light and nearly hit several pedestrians, who had to
jump back to avoid the Corolla. Officer
Talbot aborted writing the ticket, mounted his motorcycle, and followed
Lynch. In accordance with departmental
policy, he did not activate his siren or lights at that point. He observed Lynch make additional traffic
violations. When Lynch slowed to make a
turn and became stuck behind slower traffic, Talbot caught up to him, turned on
his lights, and “chirped” his siren.
Lynch was sitting very low in his seat; only part of Lynch’s head was visible
through the rear window. Lynch did not
stop but instead ran another red light at Grand and Venice, and then ran a stop
sign at Hope and Venice. Officer Talbot
honked his air horn. Lynch sat up
abruptly and looked at Talbot over his shoulder. It appeared to Talbot that Lynch had not seen
him until that point.
Lynch slowed and eventually stopped
at 15th and Hope Streets. As Officer
Talbot dismounted from his motorcycle to make the traffic stop, Lynch rapidly
accelerated away from the curb, ran another stop sign, and continued to
accelerate. Talbot got back on his
motorcycle and continued chasing Lynch.
Meanwhile, Tyrone Tucker and his
girlfriend, Karen George, were driving westbound on Pico Boulevard in Tucker’s Oldsmobile,
en route to do errands. Tucker was driving and George was
seated in the front passenger seat. As
Tucker drove through the intersection at Pico and Hope Streets on a green
light, Lynch ran the red light and the Corolla collided with Tucker’s Oldsmobile,
“T-boning” the Oldsmobile’s driver’s side door.
The impact threw Tucker on top of George and pushed the Oldsmobile onto
the sidewalk.
Lynch attempted to open the
Corolla’s door, but it was jammed shut.
He began crawling out the window but was detained by Officer
Talbot. Lynch admitted the car was
stolen. Ardiles’s checks were in Lynch’s
pocket. Ardiles subsequently identified
Lynch as the person who took his car.
George was transported to the
hospital, where she was treated for serious injuries but survived. Tucker died at the scene from injuries
sustained in the accident.
b.
Defense evidence.
The parties stipulated that Lynch’s blood tested negative for
drugs or alcohol.
2.
Procedure.
Trial was by jury.
Lynch was convicted of first degree murder (Pen. Code, § 187, subd.
(a),
title="">[1] carjacking (§ 215, subd. (a)), second degree
robbery (§ 211), evading an officer causing death (Veh. Code, § 2800.3, subd.
(b)), and attempted carjacking (§§ 664, 215, subd (a)). The jury found the murder was committed while
Lynch was engaged in immediate flight after having committed and attempted to
commit carjacking and robbery (§ 190.2, subd. (a)(17)), and that Lynch
personally inflicted great bodily injury upon George (§ 12022.7, subd.
(a)). The trial court sentenced Lynch to
life in prison without the possibility of parole.
and imposed a restitution fine, a suspended parole restitution fine, court
security fees, and a criminal assessment fee.
Lynch appeals.
DISCUSSION
1. Sufficiency
of the evidence.
a. Standard
of review.
When determining whether the evidence was
sufficient to sustain a criminal conviction, “we review the whole record in the
light most favorable to the judgment below to determine whether it discloses
substantial evidence––that is, evidence that is reasonable, credible and of
solid value––from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citations.]” (
43, 66; People v. Carrington (2009)
47 Cal.4th 145, 186-187; People v.
Halvorsen (2007) 42 Cal.4th 379, 419.)
We presume in support of the judgment the existence of every fact the
trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’
[Citation.]” (
331; People v. Zamudio (2008) 43
Cal.4th 327, 357.) The same standard
applies when we assess the sufficiency of the evidence supporting a special
circumstance allegation, and when the conviction is based primarily upon
v. Zamudio, supra, at p. 357; People
v. Valdez (2004) 32 Cal.4th 73, 104-105; People v. Maury (2003) 30 Cal.4th 342, 396.)
b. Sufficient
evidence supported the felony-murder conviction and the special circumstance
allegations.
As noted ante, Lynch was prosecuted for murder under a felony-murder
theory. The jury found true the special
circumstance allegations that the killing occurred while Lynch was “engaged in
immediate flight after having committed and attempted to commit” the crimes of
carjacking and robbery. Lynch contends
the evidence was insufficient
to support the jury’s true findings on the special circumstance allegations and
his conviction under a felony-murder theory because the robbery and carjacking
had ended before the killing occurred.
We disagree.
Murder is the unlawful killing of a
human being with malice aforethought.
(§ 187, subd. (a).) A
murder “committed in the perpetration of, or attempt to perpetrate” carjacking
or robbery is murder of the first degree.
(§ 189.) When the prosecution
establishes that a defendant killed while committing one of these felonies,
“ ‘ “by operation of the statute the killing is deemed to be first
degree murder as a matter of law.” ’
[Citation.]” (
1175.) The purpose of the felony-murder
rule is to deter felons from killing negligently or accidentally by holding
them strictly responsible for killings they commit. (People
v. Farley (2009) 46 Cal.4th 1053, 1121.)
Thus, the
required mental state for felony murder is the specific intent to commit the
underlying felony. (People v. Booker (2011) 51 Cal.4th 141, 175; People v. Gutierrez (2002) 28 Cal.4th 1083, 1140-1141.)
A “killing is considered to be
committed in the perpetration of the underlying felony if the acts were part of
a continuous transaction.
[Citation.] No strict causal or
temporal relationship between the murder and [the] underlying felony is
required.” (People v. Booker, supra, 51 Cal.4th at p. 175; People v. Young, supra,
34 Cal.4th at p. 1175; People v.
Gutierrez, supra, 28 Cal.4th at p. 1141.)
“This transaction may include a defendant’s flight after the felony to a
place of temporary safety.” (
109 [“a murder may be determined to have been committed in the
perpetration of a felony if it occurred after the felony, e.g., during the
attempt to escape or for the purpose of preventing discovery of the previously
committed felony”].) The same holds true for a
felony-murder special circumstance. (
761, fn. 5; People v. Coffman and Marlow (2004)
34 Cal.4th 1, 87.)
Robbery is the felonious taking of
personal property in the possession of another, from his or her person or
immediate presence, and against his or her will, accomplished by means of force
or fear, with the specific intent to permanently deprive the person of the
property. (§ 211; People v. Burney (2009) 47 Cal.4th 203, 234; People v. Gomez (2008) 43 Cal.4th 249, 254.) The crimes of robbery or attempted robbery
are not complete until the perpetrator reaches a place of temporary
safety. (People v. Young, supra, 34 Cal.4th at p. 1177; People v. Wilson (2008) 43 Cal.4th 1, 17; People v. Keith (1975) 52 Cal.App.3d 947, 953.) “A fleeing robber’s failure to reach a
place of temporary safety is sufficient to establish the continuity of the
robbery within the felony-murder rule.”
(People v. Johnson (1992)
5 Cal.App.4th 552, 561.)
Carjacking is the felonious
taking of a motor vehicle in the possession of another, from his or her person
or immediate presence, or from the person or immediate presence of a passenger
of the motor vehicle, against his or her will and with the intent to either
permanently or temporarily deprive the person in possession of the car,
accomplished by means of force or fear.
(§ 215; People v. Medina (2007)
41 Cal.4th 685, 693.) Carjacking is a “
‘direct offshoot of robbery.’ ” (
also In re Travis W. (2003) 107
Cal.App.4th 368, 376.) The “taking”
element of carjacking has the same meaning as in robbery, that is, possession
and asportation. (People v. Lopez (2003) 31 Cal.4th 1051, 1054-1055.) Accordingly, the crime of carjacking, like
robbery, continues until the perpetrator reaches a place of temporary
safety.
Here, the
evidence was sufficient to support the jury’s findings that the killing
occurred during Lynch’s commission of the carjacking, attempted carjacking, and
robbery. Several cases inform our
analysis. In People v. Russell (2010) 187 Cal.App.4th 981, a case much like this
one, defendant Russell burglarized a house, stole a car from the garage, and
fled the scene in the stolen car.
Approximately 10 to 15 minutes later, when Russell was approximately
four miles from the burgled home, an officer observed him running a red light
and driving at an excessive speed. (
and eventually crashed into a truck, killing the driver. As here, Russell contended he could not be
convicted under the felony-murder rule because the burglary and accident were
not part of a continuous transaction. (
neighbor had observed him committing the burglary, fled the house; when he
spotted the patrol car he feared he would be caught. Russell’s “maniacal driving at speeds up to
100-plus miles per hour, placing innocent lives at risk, [spoke] loudly about
Russell’s fear of apprehension.” (
reasonably conclude Russell “had not achieved a place of temporary safety when
he began his deadly flight from [the officer].”
(Ibid.)
Similarly,
in People v. Johnson,
committed robberies in San Mateo and fled in a stolen car. He drove a considerable distance, during
which time police did not observe or follow him. Eventually an officer attempted to pull him
over. Rather than stopping, the defendant
led the officer on a high speed chase.
During the chase, the defendant hit another car, killing the
driver. The accident occurred 30 minutes
after the defendant fled the robbery scene, and 22 miles away from the robbery
location. (Id. at p. 562.)
30 minutes away from the robbery and not having been pursued for the vast bulk
of his travels, was nonetheless in flight and thus the homicide and robbery
were part of a continuous transaction.”
(People v. Russell, supra, 187
Cal.App.4th at p. 991; People v.
Johnson, supra, at pp. 561-562.)
In
the defendant robbed a market and drove away on the highway. Approximately 48 minutes later, a police
officer observed him speeding and pulled him over. (Id. at
p. 89.) When the officer approached the
car, the defendant shot and killed him.
The Supreme Court concluded instructions on felony-murder were proper
despite the temporal and geographic distance between the robbery and the murder. “[T]he homicide could properly be viewed as
committed by defendant in an endeavor to effect an escape. [¶]
‘Robbery, unlike burglary is not confined to a fixed
considerable distance and varying periods of time. The escape . . . with the
loot, by means of arms, necessarily is as important to the execution of the
plan as gaining possession of the property.’ ”
(Id. at pp. 89-90.) Because the homicide was committed while the
defendant was “in hot flight with the stolen property and in the belief that
the officer was about to arrest him for the robbery,” instruction on felony
murder was proper. (Ibid.)
The instant matter presents even
stronger facts than the foregoing cases in support of the finding the crimes at
the market and the killing were part of a continuous transaction. After committing the carjacking, robbery, and
attempted carjacking, Lynch immediately fled the scene in Ardiles’s car,
speeding and driving erratically. He
obviously knew both victims had seen him; Simpson was screaming and Ardiles was
attempting to pursue him on foot. He
would necessarily have expected them to immediately contact police, resulting
in imminent efforts by officers to find and apprehend him. Officer Talbot, at the corner of Hill and
Olympic, just a few miles from the Vons, heard Lynch’s car before he observed
it because Lynch was travelling so fast.
Talbot observed Lynch travelling at a speed of 55 to 60 miles an hour
and running red lights and stop signs.
Lynch was sitting very low in the car, from which the jury could infer
he was attempting to avoid observation and detection. When Talbot attempted to stop Lynch, Lynch
evaded him by pretending to stop, then speeding away after Talbot was off his
motorcycle, additionally supporting the conclusion he was still fleeing the
crime scene and attempting to avoid apprehension. The fatal crash occurred approximately five
miles from the Vons, approximately eight minutes after the crimes. Nothing suggested Lynch had made any stops or
reached a place of safety during his brief trip from the Vons to the accident
site. Jurors could readily infer from
the foregoing evidence that Lynch was still fleeing the crime scene. Indeed, any other conclusion would have been
difficult to square with the evidence.
Lynch argues that the evidence
established he had reached a place of temporary safety before the accident, and
therefore the crimes at Vons and the fatal accident were not part of a
continuous transaction. He urges that
the accident occurred “a substantial distance” from the Vons; police had not
followed him from the Vons; and police were not looking for the stolen car, as
it had not yet been reported stolen.
foregoing authorities, none of these circumstances compels a finding, as a
matter of law, that Lynch had reached a place of temporary safety. Lynch’s attempts to distinguish
Cal.App.4th 552, as well as his reliance on the dissent in People v. Russell, supra, 187 Cal.App.4th 981, are not persuasive. Whether the crimes and the killing were part
of a continuous transaction, and whether the defendant had reached a place of
temporary safety, were questions of fact for the jury. (People
v. Russell, supra,
559.) As we have discussed, there was
ample evidence from which the jury could have found a continuous transaction,
and it was the role of the jury, not this court, to make such a determination. (People
v. Maury, supra, 30 Cal.4th at p. 403; People
v. Mejia (2007) 155 Cal.App.4th 86, 98.)
c.
conviction for the robbery of Ardiles.
Lynch next challenges the sufficiency of the evidence to
support his conviction for the robbery of Ardiles’s car, because “the evidence
failed to show [he] had the specific intent to permanently deprive” Ardiles of
the vehicle.
title="">[4] This contention is meritless.
As noted, an element of robbery is
that the defendant had the specific intent to permanently deprive the victim of
his or her personal property. (
p. 234.) “[T]he intent required for
robbery . . . is seldom established with direct evidence but instead is usually
inferred from all the facts and circumstances surrounding the crime. [Citations.]”
(People v. Lewis (2001) 25
Cal.4th 610, 643.) The intent to
permanently deprive someone of his or her property may be inferred when
the defendant unlawfully takes the property of another. (People
v. Morales (1993) 19 Cal.App.4th 1383, 1391.) As Lynch recognizes, this is especially so
when the taking is accomplished by means of force.
Here, Lynch took Ardiles’s Corolla
by force. He attempted to punch out the
window, pulled Ardiles from the car, punched him in the head, and sped off in
the car. He and Lynch were
strangers. From these facts, a
reasonable jury, using common sense, could readily infer that Lynch had the
specific intent to permanently deprive Ardiles of the vehicle. Indeed, any other conclusion would have been
fanciful. Lynch’s discussion regarding
the circumstances under which a temporary taking may constitute robbery is not
germane to the issues at hand; there was no evidence from which jurors could
have inferred Lynch intended only a temporary taking. Lynch took a vehicle from a stranger, by
force; no evidence remotely suggested he merely intended to borrow and return
it. Lynch’s additional arguments––that
there was no evidence he intended to change the registration or sell the car for
parts, no evidence of his motive for taking the car, and no evidence showing
what he planned to do with it––are unpersuasive. Such evidence is not required. The evidence was sufficient.
d.
Simpson.
Lynch further contends the
evidence was insufficient to support his conviction for the attempted
carjacking of Simpson because there was insufficient evidence he intended to
take the Jeep by force. The thrust of
Lynch’s argument appears to be that he took insufficient steps to constitute an
attempt.
As noted
a motor vehicle accomplished by means of force or fear. (§ 215; People
v. Medina, supra, 41 Cal.4th at p. 693.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission.” (§ 21a; People
v. Medina, supra, at pp. 693-694.)
The act must exceed mere preparation and demonstrate the perpetrator is
putting his or her plan into action, but it need not be the “last proximate or
ultimate step toward commission of the substantive crime[,]” nor must it
satisfy any element of the crime. (
376; People v. Clark (2011) 52
Cal.4th 856, 948; People v. Superior
Court (Decker) (2007) 41 Cal.4th 1, 8.)
“ ‘[B]etween preparation for the attempt and the attempt itself,
there is a wide difference. The
preparation consists in devising or arranging the means or measures necessary
for the commission of the offense; the attempt is the direct movement toward
the commission after the preparations are made.’ [Citation.]”
(People v. Superior Court
(Decker), supra, at p. 8.) When the
defendant’s conduct is unequivocal, and “it appears the design will be carried out
if not interrupted, the defendant’s conduct satisfies the test for an overt
act.” (Id. at p. 13; see also
312, 387 [to establish the act element of an attempted crime, the evidence must
show “a direct movement after the preparation that would have accomplished the
crime if not frustrated by extraneous circumstances”].)
Lynch
argues that his actions of jiggling the door, unlocking the door, and placing
his hand in the Jeep were insufficient as a matter of law to show he was going
to take the Jeep by force. He urges that
in other cases finding sufficient evidence of attempt, the defendant “did
considerably more than merely reaching inside the car,” such as actually
sitting in the car and attempting to start it.
Lynch’s
argument fails. From the evidence, the
jury could readily have concluded Lynch was loitering in the parking lot,
searching for victims. His actions of
approaching the car with Simpson inside, managing to gain access to the
interior of the car, and searching for the ignition keys with his hand, were
direct movements toward putting his plan into action. He continued his efforts after Simpson locked
the doors in an effort to impede him, walking around to the car’s partially
open window and reaching through to unlock the door. The jury could readily conclude Lynch’s
actions amounted to more than preparation.
A reasonable juror could readily have concluded that, had Lynch not been
thwarted by the fact the keys were not in the car, he would have completed the
carjacking. His intent to use force or
fear in obtaining the car was demonstrated by his use of force on Ardiles
moments after his foray into Simpson’s vehicle.
That evidence, coupled with the fact he paid no heed to Simpson’s
commands to get away, readily suggested that, had he found the keys in the
Jeep, he would have completed the carjacking of Simpson by means of force or
fear. That different or stronger
evidence may have been present in other cases considering the issue does not
establish the evidence was insufficient here; each case must be considered on
its own facts. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1010.)
2. Prosecution
on a felony-murder theory with special circumstance allegations was not
improper.
Lynch next complains that by
prosecuting him under a felony-murder theory while at the same time charging
special circumstance allegations, the prosecutor violated his rights to due
process. He contends that given the
nature of the crime and his background, seeking a life term without the
possibility of parole was not only arbitrary and capricious, but offended
fundamental principles of justice. In
his view, the circumstances of his case were unique, and “the prosecution’s
exercise of discretion . . . was fundamentally unfair.” Therefore, he urges that the trial court
should have sua sponte dismissed the special circumstances allegations prior to
trial. Further, he contends that due
process required that the prosecutor “specify the reasons” for charging both
felony murder and special circumstances allegations, as well as for seeking a
term of life without parole rather than 25 years to life.
Lynch’s
claims are unsupported by adequate authority and lack merit. Lynch concedes that the prosecutor has
discretion to charge a defendant with both felony murder and special
circumstances allegations based on the same facts. He cites no authority suggesting that it was
impermissible to do so in the instant case, and we are aware of none. (See People
v. Abilez (2007) 41 Cal.4th 472, 528 [double-counting charged felonies,
once to elevate the degree of homicide to first degree murder, and again to
render the defendant eligible for the death penalty, was permissible];
158 [first degree murder liability and special circumstance findings may be
based upon common elements without offending the Eighth Amendment].)
Lynch
correctly recognizes that prosecutorial discretion to charge a special
circumstance allegation generally does not violate the federal
Constitution. (See People v. Tafoya (2007) 42
Cal.4th 147, 198.) It is well settled
that a district attorney has broad prosecutorial discretion in charging. (People
v. Maury, supra, 30 Cal.4th at p. 438.)
“Prosecutorial discretion in charging special circumstances or seeking
the death penalty is not unconstitutional.
[Citation.] Intercase
proportionality review is not required.”
(People v. Chatman (2006) 38
Cal.4th 344, 410.) “Vigorous prosecution
is not capricious prosecution.” (
829.) Even where the death penalty is
sought, “[a]bsent proof of invidious discrimination [citations] or vindictive
prosecution because of a defendant’s exercise of his legal rights [citation],
neither of which defendant alleges in this case, ‘as a general matter a
defendant who has been duly convicted’ ” may “ ‘not be heard to complain on
appeal of the prosecutor’s exercise of discretion in charging him with special
circumstances and seeking the death penalty.’ ” (People
v. Maury, supra, at p. 438; People v.
Jurado (2006) 38 Cal.4th 72, 98.)
Moreover, by failing to bring a due process challenge to the charging
decision below, Lynch has forfeited any claim of vindictive prosecution on
appeal. (People v. Maury, supra, at p. 439; People v. Ledesma (2006) 39 Cal.4th 641, 730.)
Lynch cites
no authority or persuasive argument for his contention that he received
improper notice in regard to the reasons for the prosecutor’s charging
decisions. Indeed, Lynch acknowledges
that “the case law [is] against him on this point,” which he raises in order to
preserve the issue for further state and federal review. We discern no constitutional violation.
3. Lynch’s
sentence of life without the possibility of parole does not constitute cruel or
unusual punishment.
Lynch next urges that imposition of
a sentence of life without the possibility of parole (LWOP) amounted to
unconstitutionally cruel or unusual punishment because it was disproportionate
to his culpability. He argues that he
was 19 years old when he committed the crimes; the crimes were not particularly
egregious or sophisticated; he did not have a substantial criminal record; and
express malice was not shown.
First, as the People argue, Lynch
has forfeited this claim by failing to raise it below. (See, e.g., People v. Russell, supra, 187 Cal.App.4th at p. 993.) Nonetheless, we consider the claim “ ‘in the
interest of judicial economy to prevent the inevitable
ineffectiveness-of-counsel claim.’
[Citation.]” (
A sentence violates the federal
Constitution only if it is “grossly disproportionate” to the severity of the
crime. (U.S. Const., 8th Amend.;
2021; People v. Blackwell (2011) 202
Cal.App.4th 144, 158; People v. Russell,
supra, 187 Cal.App.4th at p. 993; People
v. Carmony (2005) 127 Cal.App.4th 1066, 1076.) “A court must begin by comparing the gravity
of the offense and the severity of the sentence. [Citation.]
‘[I]n the rare case in which [this] threshold comparison . . .
leads to an inference of gross disproportionality’ the court should then
compare the defendant’s sentence with the sentences received by other offenders
in the same jurisdiction and with the sentences imposed for the same crime in
other jurisdictions. [Citation.] If this comparative analysis ‘validate[s] an
initial judgment that [the] sentence is grossly disproportionate,’ the sentence
is cruel and unusual.” (
Under the California Constitution,
article I, section 17, “a sentence will not be allowed to stand when it is so
disproportionate to the crime committed that it shocks the conscience and
offends fundamental notions of human
dignity, considering defendant’s history and the nature of the
offense.” (People v. Blackwell, supra, 202 Cal.App.4th at p. 158;
1080, 1092; People v. Russell, supra, 187
Cal.App.4th at p. 993.) “Much like
Eighth Amendment analysis, we consider the nature of the offense and the
offender, with particular regard to the danger each presents to society, as
well as the penalties prescribed in this state for more serious offenses and
those prescribed in other states for the same offense.” (People
v. Blackwell, supra, at p. 158;
p. 1092; People v. Russell, supra,
at p. 993.)
Whether a punishment is cruel and
unusual is a question of law, but we review the underlying facts in the light
most favorable to the judgment. (
354, 358.)
Lynch’s sentence is undoubtedly
harsh (Graham v. Florida, supra, 130
S.Ct. at p. 2027), but we cannot say it is grossly disproportionate or
shocks the conscience in view of Lynch’s crimes. Murder is generally the most serious criminal
offense possible. Lynch’s conduct
directly resulted in an innocent man’s death.
The victim’s death was the result of his conduct in carjacking a car
from one innocent victim, and then driving with complete disregard for other
persons, as he sped down the city streets and ran traffic signals. Contrary to Lynch’s argument, we do not
believe the nature of the offense requires a finding of disproportionality. (See Harmelin
v. Michigan (1991) 501 U.S. 957, 961, 966 [LWOP sentence for possession of
cocaine was not cruel and unusual].)
Nor does Lynch’s background
mitigate his culpability. He was no
longer a juvenile. His criminal history
was not insignificant. By the age of 19,
he had sustained juvenile petitions for grand theft person and robbery, and an
adult conviction for grand theft. In one
of the thefts, his juvenile accomplice reportedly used a gun when confronting a
customer at a taco stand; Lynch reportedly asked, “ ‘Why don’t you go
ahead and shoot him’ ” during the crime.
He violated probation at least twice, and was on probation at the time
of the instant crimes. As the probation
report explained, Lynch’s history demonstrated a “growing record of criminal
conduct with past efforts at rehabilitation appearing to have been futile.”
Lynch argues that his sentence is
disproportionate because he was convicted under the felony-murder rule and
there was no proof he had the intent to kill, yet his sentence is the same as
if he had committed premeditated first degree murder. But a finding of disproportionality does not
necessarily flow from this comparison.
In Tison v. Arizona (1987) 481
US. 137, the defendants contended that because they had not intended to kill
the victims, their death sentences were disproportionate under the Eighth
Amendment. (Id. at p. 150; People v.
Estrada (1995) 11 Cal.4th 568, 576.)
Tison rejected the defendants’
argument. After observing that a
“critical facet of the individualized determination of culpability required in
capital cases is the mental state with which the defendant commits the
crime” (Tison v. Arizona, supra,
faced with determining the level of a defendant’s culpability for which the
state may exact the death penalty, focusing solely on the question of whether
the defendant intended to kill the victim was unsatisfactory.” (People
v. Estrada, supra, at p. 576; Tison
v. Arizona, supra,
the most dangerous and inhumane of all—the person who tortures another not
caring whether the victim lives or dies, or the robber who shoots someone in
the course of the robbery, utterly indifferent to the fact that the desire to
rob may have the unintended consequence of killing the victim as well as taking
the victim’s property. This reckless
indifference to the value of human life may be every bit as shocking to the
moral sense as an ‘intent to kill.’ ”
(Tison v. Arizona,
Estrada, supra, at p. 576.) Here,
Lynch may not have had the intent to kill, but he attempted to carjack one
vehicle, took another, and drove with extreme reckless indifference to human
life when making his getaway. Under
these circumstances, his disproportionality claim fails.
In light of his history and the
very serious nature of his crimes, we cannot say that his LWOP sentence is
disproportionate to his individual culpabilty as a matter of law. (See People
v. Blackwell, supra, 202 Cal.App.4th at p. 159.)
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
name="_ftn1" title="">[1] All
further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2] Sentence
on counts 2 through 5 was stayed pursuant to section 654. Sentence on count 6 was ordered to run
concurrent to the life term. The court
struck the allegation that Lynch had suffered a prior “strike” conviction.
