P. v. Rocha
Filed 9/6/13 P. v. Rocha CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICARDO GUERRA ROCHA,
Defendant and
Appellant.
___________________________________
In re RICARDO GUERRA ROCHA,
On Habeas
Corpus.
G047420
(Super. Ct.
No. 11CF0470)
O P I N I O N
G048047
Appeal and petition for
a writ of habeas corpus following a judgment of the Superior Court of Orange
County, Steven D. Bromberg, Judge.
Judgment affirmed. Petition
denied.
Kurt David Hermansen,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Sean M. Rodriquez,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted
defendant Ricardo Guerra Rocha of second degree murder (Pen. Code, §§ 187,
subd. (a), 189; all further statutory references are to this code unless
otherwise indicated; count 1); and street terrorism (§186.22, subd. (a); count
2). It further found true allegations he
vicariously discharged a firearm, causing the victim’s death (§ 12022.53,
subds. (d) & (e)(1)), and committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd.
(b)). The court sentenced defendant to
15 years to life on count 1 and 25 years to life for the enhancements but
stayed his sentence on count 2.
In his appeal, defendant
contends (1) the court erred in admitting his statements to a detective because
they were obtained in violation of Miranda
v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (
supports the section 186.22, subdivision (b) and vicarious firearm discharge enhancements,
(3) California’s mandatory sentencing scheme under section 12022.53,
subdivisions (d) and (e)(1) violates the Eighth Amendment as applied to
juveniles, and (4) his 40 years to life sentence constitutes cruel and unusual
punishment under the California Constitution.
Defendant also filed a
petition for writ of habeas corpus, which we consolidated with the appeal for
all purposes, raising the same Miranda and
cruel and unusual punishment issues he asserts in his direct appeal. He also claims his trial attorney failed to
provide him with effective assistance of counsel by failing to advocate on his
behalf at sentencing. Finding no error,
we affirm the judgment and deny the petition.
FACTS
Defendant’s sister,
Maria, drove defendant, Ivan Sanchez and Humberto Rivera to dinner one
evening. Defendant, aka “Husky,†had
just been released from juvenile hall three days earlier where he had been
placed for consuming controlled substances and violating his probation terms,
and he and Sanchez were members, and Rivera was an associate, of the Central
Myrtle Street gang. Sanchez wore a
Milwaukee Brewers hat, a symbol of the gang, which defendant also owned but did
not wear that night. Seven months
earlier, defendant told a police officer he had been “kicking back†with the
gang since he was 8 or 9 years old, that he was wearing the Milwaukee Brewers
hat because he was proud to represent the gang, and would “back up his homies
against all his enemies.†Per gang expert
Matthew McLeod, that meant “he would do anything to support his fellow gang
members in whatever criminal enterprise or endeavor they chose to
undergo.â€
At the restaurant,
located about 10 minutes away from Central Myrtle gang territory, defendant’s
group had an altercation with another group.
Esteban Navarrete, his wife, niece, and niece’s boyfriend sat at a table
between them. A video recording showed
Sanchez making the Central Myrtle Street gang hand sign during the
approximately 30 minute argument.
According to McLeod, gang signs are “a nonverbal way of claiming a gang,
showing one’s dedication and membership in that gang to all those who would
view it, be they rivals, perceived rivals, [or] just community members.†When
defendant’s group left the restaurant and went to Maria’s truck, the other
group “went after them†and “pushed them around.†After a minute or so of back and forth
pushing and shoving, defendant’s group drove off.
About 15 to 20 minutes
later, defendant and Sanchez approached Navarrete’s group as they were entering
their car. Defendant was “walkingâ€
Sanchez “like if Sanchez didn’t know what he was doing†and pointed at
Navarrete’s car as they approached.
Standing really close to each other “like they were hugging or
something,†either defendant or Sanchez said, “‘That’s the girl that beat us.’â€
With defendant directly
behind him, Sanchez aimed the gun at Navarrete’s wife. Navarrete got out of the car and said, “‘Hey,
it’s not us. It’s over there. It’s not us.’†Sanchez shot Navarrete in the head and fired
at least four more shots into Navarette’s car.
After Sanchez stopped firing the gun, defendant pushed the gun down with
his hand. Defendant pointed to the
vehicle they arrived in and ran to it with Sanchez.
Five days later,
defendant voluntarily went to the police station and asked to speak to a
detective. He stated Sanchez had
received the gun from another Central Myrtle gang member and that once the
shooting was complete he told Sanchez to dispose of his clothes in order not to
be linked to the murder.
According to McLeod,
gang members sometimes commit crimes with nongang members. When a gang member is disrespected in front
of another gang member, he must respond immediately with an act outweighing the
disrespect he incurred or risk harming his reputation in the gang and bringing
disrespect on the gang as a whole. The
disrespect does not have to be gang related but merely something viewed as
“negative†and can include “a menacing glare,†or being bumped, stepped on, or
verbally discredited. The greater the
violence committed, the more respect the gang
member
obtains, with homicide providing the highest status to all the gang members
present or participating.
Testifying on his own
behalf, defendant denied being a member of Central Myrtle, although he admitted
being friends with members. He had been
drinking whiskey, smoking marijuana, and using methamphetamine before the
shooting and only had a Milwaukee Brewers hat because he was a fan of the team. He met Rivera while in juvenile hall and Sanchez
the night of the shooting while he was “getting high.â€
At the restaurant,
defendant drank beer and Rivera tried to settle the fight between Sanchez and
the other group. He told Marie they
should leave when Sanchez threw up. As
he was helping Sanchez leave, a man from the other group hit defendant and
defendant fought back. The rest of the
other group came out and a fight ensued between them. The members of the other group were older and
bigger than defendant, Sanchez, and Rivera.
Defendant and his friends left with Maria in her truck. Defendant was “pissed.â€
Sanchez had Maria drive
to the house where he and defendant had been using drugs and drinking
earlier. Sanchez left the truck, and
returned with a Central Myrtle gang member, who placed a loaded gun on an empty
seat in the truck. Sanchez stated he was
“‘going to scare this mother fucker’†while defendant wanted to “‘fuck [the
other group] up.â€
At Sanchez’s request,
Maria drove them back to the restaurant, entering through the back of the
lot. Sanchez got out of the truck and
when he pointed the gun, defendant hit him on the hand. Sanchez kept walking and defendant did not
try to stop him because he was scared Sanchez would shoot him.
Upon seeing Navarrete,
defendant believed he was one of the men who had attacked him earlier. Sanchez fired several shots at Navarrete and
his vehicle, which defendant knew contained other passengers. Defendant pushed him, saying, “‘What the
fuck’†and took the gun away once they entered Maria’s truck. Defendant told Sanchez to get rid of his
clothes to prevent his DNA from being discovered and identifying him as the
shooter. Maria dropped Sanchez off where
he obtained the gun, and defendant went to find his friend with whom he “got
high.â€
DISCUSSION
Miranda Violation
Defendant contends the
court erred in denying his motion to exclude the statements he made at the
police station because he was not informed of his Miranda rights. In his
petition for writ of habeas corpus, he asserts he would not have testified at
trial if those statements had not been admitted.
a. Relevant Proceedings
Dean Fulcher, the
detective conducting the interview, testified at trial that between the night
of the shooting and the day defendant went to the police station, police
obtained a video showing defendant, Sanchez, and Maria at the restaurant and
disseminated it to the press. Although
defendant had not been identified as a participant in the murder and had not
been summoned by anyone in the department, he walked into the police station
lobby with his sister and asked to speak with a detective.
Fulcher did not know
what information defendant intended to share and did not handcuff him or place
him under arrest. Unlike the standard
procedure in a homicide case where two detectives conduct the interview,
Fulcher spoke with defendant alone in a department room. During the hour-long interview, Fulcher never
became confrontational or raised his voice.
Fulcher began by turning
on a recording device and telling defendant he was not in custody or under
arrest, was free to leave at any time, and the only reason he closed the door
was for privacy. He asked defendant his
age and defendant responded he was 17 years old. Fulcher then asked what defendant wanted to talk
about.
Defendant gave a
narrative of his version of what happened the day of the shooting, including
the dinner, the argument with the other group, and the fight outside the
restaurant. Afterwards, he and his
sister dropped his friends off and went home.
Fulcher did not interrupt defendant except to say “yes,†“okay,â€
“right,†and “uh-huh.†He also asked
several follow up questions, such as who else was involved that evening.
After defendant denied
knowing where Sanchez and Rivera were, Fulcher tapped his finger on their
photographs and said “three hots and a cot, brother.†Fulcher fabricated the existence of
surveillance footage from the restaurant’s parking lot showing them returning
in his sister’s truck to the restaurant, defendant and Sanchez getting out and
walking up to Navarrete, and Sanchez shooting him. Fulcher told defendant Sanchez had turned
himself in and confessed to the shooting and that the problem for defendant was
the video showed him walking up to Navarrete with Sanchez. He advised him to help himself by using his
own words to explain what happened.
Following a 20-second
pause, Fulcher said he knew defendant’s group had been drinking and “not
thinking straight†and were “pissed off,†but that “[t]he good thing for you
[is] you’re not the one who . . . pulled the trigger. We . . . know its him and
we’ve got him. You’re still involved in
this whole thing, and that’s why its important for you to kind of lay out in
your words what happened. Okay. I know it’s kind of difficult, I’m sure you
probably don’t [want to] talk about it, it’s uncomfortable,
but . . . I mean you came down here I think to clear your
conscie[nce], and . . . you’re about halfway there, now
it’s time to take that next step; which is the more difficult step. I understand, especially you, you’re a young
kid, got your whole life ahead of you, . . . but just keep
in mind we know what happened. I’m just
giving you an opportunity to say it in your own words.â€
After a 15-second pause,
Fulcher asked if it “would . . . be easier if [he] just
asked [him] questions and [defendant] answere[ed] them?†Another 5 seconds ensued and defendant said
something unintelligible, followed by a 20-second pause. Fulcher then started asking questions
beginning with where they obtained the gun.
Defendant answered “[o]n Myrtle†after a 5-second pause.
Fulcher asked if they
called someone in advance or if they just went over to Myrtle. When defendant did not respond after
30-seconds, Fulcher inquired who actually obtained the gun, to which defendant
immediately responded, Sanchez and that he “just had to pick it up from
somebody.†Defendant did not answer
right away whether Sanchez had to go into a house or if someone just gave him
the gun, prompting Fulcher to say, “Hey, Ricardo.†Defendant said something unintelligible and 5
seconds later, answered, “Someone gave him the gun.â€
Fulcher questioned
whether defendant was “pissed off†and after 5-seconds defendant answered he
was. Fulcher said, “Rightfully so. You’re only 17,†to which defendant
responded, “Yeah.†When asked if
defendant’s group explained why they needed a gun, defendant said he and
Sanchez both did.
Fulcher inquired where
everyone was sitting in the truck and if Sanchez said what he was going to
do. Defendant answered Sanchez said he
was “just gonna scare this mother fucker†and when they returned to the parking
lot, the only person they saw was Navarrete getting into his car. He then described getting out of the car with
Sanchez, walking behind Sanchez toward Navarrete, and Sanchez shooting
him. Defendant was shocked and pushed
Sanchez when he continued shooting.
Defendant took the gun away from him and told him he was stupid, at
which point Sanchez hit him. Once back
in Maria’s truck, Sanchez took the gun back.
Maria dropped Sanchez
and Rivera off where they obtained the gun and went home. Maria was scared and suggested they go to the
police, which defendant agreed was the right thing to do. When Fulcher asked if defendant wanted to “go
back and fuck these guys up,†defendant said “yeah,
but . . . not with the strap [i.e., gun].â€
Fulcher told defendant
the law made each of them responsible for the shooting and asked about
Sanchez’s clothes. Defendant admitted
telling Sanchez to get rid of his clothes so the police could not connect him
with the shooting. At the end of the
interview, Fulcher convinced defendant to provide a DNA sample. The probation report indicates defendant was
arrested when the interview ended although a complaint was not filed against
him until four days later.
At the suppression
hearing, the court noted the interview had been “warm and fuzzy†up to when
Fulcher asked where they had picked the gun up and asked Fulcher if he would
have allowed defendant to leave at that point.
Fulcher responded that he would not have handcuffed him but would have
contacted the lead detective for instructions and they might have stopped him
“before he made the parking structure, or something like that†or they could
have obtained a warrant and picked him up later.
Defendant then testified
he had discussed what happened with his sister and they both decided it would
be best for him to go in because he “had nothing to hide†and did not kill
Navarrete. When they asked him at the
station why he was there, he told them he was “there to tell the truth what
happened . . . about the incident.†He had been under the influence of
methamphetamine, alcohol, and marijuana during the interview, although he did
not tell Fulcher that; he “was nervous[ and] . . . just
want[ed] to say the truth.†After the
interview, defendant still believed he had nothing to fear or hide by going to
the police department.
The court found
defendant had conducted himself well during the interview despite his age of 17
and purported substance abuse. Although
___ [131 S.Ct. 2394, 180 L.Ed.2d 310] (J.D.B.)
required it to consider a juvenile’s age in its Miranda analysis, the court noted no special rules govern whether a
juvenile is in custody. In light of
these circumstances, plus the fact defendant entered the police station
voluntarily, which “change[d] the issue pretty significantly,†the court denied
the suppression motion.
b. Legal Principles
A person subjected to
custodial interrogation must be given Miranda
warnings apprising the person of his or her right to remain silent, that any
statement the person makes may be used against the person and that the person
has the right to counsel, retained or appointed. (Miranda,
supra, 384 U.S. at pp. 444-445.) “[C]ustodial
interrogation . . . means, ‘questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.’ [Citation.]
In determining whether an individual was in custody, a court must
examine all of the circumstances surrounding the interrogation, but the
ultimate inquiry is simply whether there was a ‘“formal arrest or restraint on
freedom of movement†of the degree associated with a formal arrest.’ [Citations.]
The deprivation can be constructive as well as actual. ‘[C]ustody occurs if the suspect is physically
deprived of his freedom of action in any significant way or is led to believe,
as a reasonable person, that he is so deprived.’†(In re
Kenneth S. (2005) 133 Cal.App.4th 54, 64 (Kenneth S.).)
The test to determine
whether a custodial interrogation has triggered the necessity of
interrogation, not the subjective intention of the interrogating officer or the
subjective understanding of the person being questioned, is evaluated in
determining whether the person was in custody at the time of the
questioning. ‘A policeman’s
unarticulated plan has no bearing on the question whether a suspect was “in
custody†at a particular time’; rather, ‘the only relevant inquiry is how a
reasonable man in the suspect’s position would have understood his
situation.’†(Kenneth S., supra, 133
Cal.App.4th at p. 64.) “In considering a
claim that a statement or confession is inadmissible because it was obtained in
violation of a defendant’s rights under Miranda . . . ’[w]e
must accept the trial court’s resolution of disputed facts and inferences, and
its evaluations of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed facts, and
those properly found by the trial court, whether the challenged statement was
illegally obtained.’ [Citations.] We apply federal standards in reviewing
defendant’s claim that the challenged statements were elicited from him in
violation of Miranda.†(People
v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.)
c. Analysis
Defendant argues the
court erred in concluding no interrogation occurred and that he was not in
custody because the voluntary encounter became a custodial interrogation. We reject his claim he was in custody after
Fulcher “confronted [him] with evidence of guilt in the bowel’s [sic] of the
police department in an interrogation room†and thus need not discuss whether
defendant was subjected to interrogation.
Regarding whether
defendant was in custody, defendant contends the court erroneously looked at
Fulcher’s subjective belief and ignored defendant’s age. Neither assertion persuades us to reverse.
We agree with defendant
that Fulcher’s subjective belief about defendant’s custodial status was not
relevant to whether defendant was actually in custody because the determinative
question is how a reasonable person in the defendant’s position would view the
circumstances. (Kenneth S., supra, 133
Cal.App.4th at p. 64.) But asking
Fulcher what he would have done had defendant attempted to leave does not mean
the court relied on that to make its determination. If it had, it probably would have concluded
defendant was in custody given Fulcher’s statements that although he would not
have handcuffed him, he would have contacted the lead detective for
instructions and they might have stopped him “before he made the parking
structure.†In fact, the court noted
that “once inculpatory statements start to be made [Fulcher] should have then
said, ‘well, here is your Miranda.’†It found, however, the fact defendant
voluntarily walked in to the police station made “a big, big difference.â€
In this regard,
foster mother and asked if she would voluntarily bring the minor and his
brother to the police station for questioning about “‘crimes that had occurred
in the neighborhood.’†At 7:00 the
following morning, the foster mother brought the boys to the station. They were all buzzed into a security area and
taken upstairs to an area where civilians were not allowed to “‘just roam
around.’†(Id. at p. 59.) The foster
mother agreed to allow the detective to speak to the minor alone. The two boys were escorted to separate
rooms. The minor was placed in a small
room with the door partially open. The
foster mother was put in a room about 10 feet away. The interview with the minor was
recorded. The detective thanked him for
volunteering to come to the station, and told him he was not under arrest and
was free to leave at any time. (
Miranda warnings were not given
before the interview. Twenty-five
minutes into the interview, the detective began asking about the robbery which
he was investigating. Eventually the
minor admitted the robbery. (
At that point, he was given his Miranda
rights and was detained. (
Kenneth S. concluded that the minor was subjected to neither actual
nor constructive restriction on his freedom.
He came to the station voluntarily with his foster mother. The detective told him he was not under
arrest and was free to leave. (
The court held that the fact the interview took place in the police
station did not demonstrate a constructive restriction on the minor’s freedom
and a reasonable person in the minor’s position would not have understood he
was in custody within the meaning of Miranda. (Ibid.)
Similarly, here,
defendant testified at the suppression hearing that he voluntarily went to the
police station “to tell the truth [about] what happened†because he “had
nothing to hide†and did not kill Navarrete.
He was not physically restrained at any time. He was placed in an interview room and told
he was not in custody or under arrest, could leave at any time, and that the
door was closed only for privacy reasons.
As in Kenneth S., there is no
evidence defendant was actually or constructively restrained. In fact, defendant testified that even after
the interview he did not believe he had anything to fear or hide by going to
the police department. We conclude that
a reasonable person in defendant’s position would not have understood he was in
custody under the totality of these circumstances.
Defendant distinguishes
door there was partially open, his foster mother only 10 feet away, and the
detective stated “he had information that [Kenneth S.] was involved in†a
robbery (Kenneth S.,
whereas here defendant was “interrogated in a closed room in the interior of
the police department with no one nearby . . . [a]nd
Fulcher did not merely tell [him] that he had information that he was involved
in a crime[ but] . . . repeatedly confronted [him] with
specific evidence of his guilt in a murder case.†But Fulcher explained to defendant the door
was only closed for privacy reasons, which implies he would have opened it had
defendant asked. Additionally,
defendant’s sister was nearby in the station, having accompanied him there, and
there is no evidence she asked to go with him to the interview room. As to confronting defendant with evidence
showing guilt, that goes toward the issue of whether an interrogation occurred,
not whether it was in a custodial setting.
Here, defendant was not formally arrested, restrained from moving in any
way, or led to believe, as a reasonable person, that he was physically deprived
of his freedom of movement. (
We see no basis to distinguish the holding in Kenneth S.
Defendant maintains his
custodial status was demonstrated by the fact “[h]e could not use the restroom
unless Fulcher accompanied him, and he could not open the door on his
own.†But that is not what the record
reflects. When defendant asked if he
could use the restroom, Fulcher said, “Yeah, absolutely,†and then asked if he
wanted to “do that right now or . . . wait until I get that
[consent to take his DNA] form and come back?â€
When defendant said he did not know, Fulcher asked if he had to “go real
bad,†to which defendant responded he “could wait.†Although Fulcher closed the door behind him
as he left the room, he told defendant to knock if he needed anything because
they could not allow people to wander the halls. Defendant answered, “Alright.†The tone of this colloquy was not
confrontational and gave defendant the options of when to go to the restroom
and to request anything he needed by knocking on the door; it does not suggest
a reasonable juvenile in defendant’s position would feel that he was not free
to leave.
Defendant contends the
court also erred by failing to apply the test set forth by J.D.B., supra, 564 U.S.
__ [131 S.Ct. 2394], which held that a juvenile suspect’s age must be taken
into account when considering the Miranda
custody analysis. (
2402-2403].) But the court pointed out
“[t]his is not to say that a child’s age will be a determinative, or even a
significant, factor in every case†(id.
at p. 2406) and the majority specifically noted that omitting a suspect’s age
was not unreasonable when the suspect “‘was almost 18 years old at the time of
his interview’†(ibid.). The record here similarly demonstrates that
on the date of his interview at the station defendant was less than three
months short of his 18th birthday. It
thus would not have been unreasonable for the court to have not considered his
age. Moreover, it did consider it,
expressly noting how well defendant conducted himself during the interview
despite his age and claim that he was high and drunk. In light of this, we reject defendant’s claim
the court did not consider his age just because it said “juvenile[s do] not
having any special rules for determining whether someone is in custody or
not.â€
People v. Boyer (1989) 48 Cal.3d 247, overruled on another point in
People v. Stansbury (1995) 9 Cal.4th
824, 830, fn. 1, cited by defendant, is distinguishable. There, the police detained the defendant as
he attempted to leave his home by the backdoor, other officers having sought
entry at the front door. The defendant
agreed to accompany officers to the police station where he was subjected to
more than an hour of intense and accusatory questioning. The officers directly accused the defendant
of the homicide under investigation and told him they possessed undisclosed
information incriminating him and that he would be unable to live with himself
if he did not confess. The officers
proclaimed they knew the defendant was guilty, they intended to charge him, and
expressed confidence their evidence would hold up in court. Perhaps most importantly, the officers
rebuffed the defendant’s requests to have a lawyer present and to end the
interview altogether, demonstrating he was at the mercy of the police in
circumstances tantamount to formal arrest.
Here, in contrast,
defendant was not detained as he tried to leave his home or pressured by police
to go to the police station but instead went there of his own accord. He shared his story voluntarily and was
expressly told he was not under arrest, was free to leave, and that the door
was closed only for privacy reasons.
Fulcher never raised his voice or became confrontational during the
hour-long interview. Nor did defendant
ask to end the interview. Further,
unlike in Boyer, the police did not
repeatedly ignore statements that he wanted a lawyer and did not want to talk
to them further.
We conclude the
interview of defendant was not custodial and did not trigger the need for
denying his suppression motion, his petition for writ of habeas corpus on this
ground fails.
Sufficiency of the Evidence to Support Enhancements
Defendant contends
insufficient evidence supports the jury’s finding he specifically intended to
promote, further, or assist a gang member’s criminal conduct as required for
the gang enhancement under section 186.22, subdivision (b) and the vicarious
firearm discharge enhancement under 12022.53, subdivision (d) and (e)(1). (See People
v. Mejia (2012) 211 Cal.App.4th 586, 614-615.) We disagree.
The gang enhancement
under section 186.22, subdivision (b)(1) requires proof the crime for which the
defendant was convicted had been “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .†The
enhancement thus has two prongs—the benefit prong and the intent prong. (People
v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Defendant disputes only the latter.
In particular, defendant
notes there was no evidence Navarrete’s family knew defendant or Sanchez were
gang members, no percipient witness saw anyone flash a Central Myrtle hand sign
in the restaurant despite a surveillance video showing an unknown person making
the sign, and that neither he nor Sanchez identified their gang affiliation
when Sanchez shot Navarrete. But nothing
in the statute requires defendant promote the gang during the offense, only
that he promote (or further or assist) criminal conduct by a gang member. (People
v. Albillar (2010) 51 Cal.4th 47, 64-67.)
This is most often satisfied by evidence the defendant committed the
crime with other known gang members.
From evidence “the defendant intended to and did commit the charged
felony with known members of a gang, the jury may fairly infer that the
defendant had the specific intent to promote, further, or assist criminal
conduct by those gang members.†(
1145, 1171 [“‘[I]f substantial evidence establishes that the defendant intended
to and did commit the charged felony with known members of a gang, the jury may
fairly infer that the defendant had the specific intent to promote, further, or
assist criminal conduct by those gang members’â€].) Here, defendant concedes he committed the
offense with Sanchez, an active gang member.
Accordingly, defendant’s intent can be inferred from the circumstances
of the offense. The second prong was satisfied
by substantial evidence.
Defendant relies on
1350 and People v. Ramon (2009) 175
Cal.App.4th 843 (Ramon) to argue
there was no evidence he had the specific intent to benefit the Central Myrtle
gang. His reliance on these cases is
misplaced. In re Daniel C. concluded
the evidence was insufficient to support the specific intent element of the
gang enhancement, noting there was no evidence the defendant was acting in
concert with his companions when he robbed a liquor store and no evidence that
his companions committed or were charged with any crime. (Daniel
C., at pp. 1359-1364.) The same is
not true here. In Ramon, the defendants, members of the same gang, stole a truck
together. A gang expert testified that
the crime benefitted the gang because they could commit other crimes with the
stolen truck. Ramon held that the expert’s opinion was improper because there
were no facts from which he could discern whether the men were acting on their
own behalf or on behalf of the gang. (
focus was on the sufficiency of the evidence showing that the crime was
committed for the gang’s benefit. (
specific intent issue, Ramon appears
to have framed the issue differently; namely, whether the defendant had the
specific intent to promote the criminal street gang (id. at pp. 849, 853) as opposed to whether the defendant had the
specific intent to promote, further or “assist criminal conduct by gang
members†(§ 186.22, subd. (b)(1)). When
the issue is framed as whether defendant intended to promote or to benefit the
gang, then Ramon’s conclusion that
there was insufficient evidence is understandable, because there was no
evidence that gang slogans were shouted or of other indicia that commonly
denote a gang crime. It becomes less so
when the issue is framed according to the actual language of the statute.
We are satisfied that
substantial evidence supports the jury’s true finding on the gang allegation
and thus affirm its findings on the enhancements under both sections 186.22,
subdivision (b)(1) and 12022.53, subdivisions (d) and (e)(1).
Constitutionality of Section 12022.53 as Applied to Juveniles
The court sentenced
defendant to a mandatory 15-year-to-life term for the second degree murder and
a mandatory 25-year-to-life term under section 12022.53, subdivisions (d) and
(e)(1), resulting in a mandatory sentence of 40 years to life. Defendant contends this sentence violates the
Eighth Amendment because “section 12022.53’s mandatory sentencing scheme is
unconstitutional as applied to juveniles[, as
it] . . . eliminated the trial court’s discretion to
consider the mitigating circumstances of [defendant’s] youth.†(Bold omitted.) He acknowledges he did not object to the
enhancement on that ground and, therefore, “technically forfeited his Eighth
Amendment challenge to his 40-years-to-life sentence†but urges us to reach the
merits of his claim to avoid an ineffective assistance of counsel claim. We shall consider the argument on the merits.
Defendant relies on recent
federal and state high court case law, namely Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d
407] (Miller), Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct 2011, 176 L.Ed.2d
825] (Graham), and
(Caballero), for the proposition that
the court must have discretion to consider the mitigating circumstances of his
youth. But these cases are
distinguishable because they involved juveniles whose sentences were either (1)
life without possibility of parole (LWOP) (Miller,
at p. 2460; Graham, at p. 2020) or
(2) a term of years so long as to be the functional equivalent of LWOP (
with the permissible length of a juvenile offender’s sentence “follow a
remarkably consistent pattern. There is
a bright line between LWOPs and long sentences with eligibility for parole if
there is some meaningful life expectancy left when the offender becomes
eligible for parole. We are aware of—and
have been cited to—no case which has used the . . .
jurisprudence to strike down as cruel and unusual any sentence against anyone
under the age of 18 where the perpetrator still has substantial life expectancy
left at the time of eligibility for parole.â€
(People v. Perez (2013) 214
Cal.App.4th 49, 57, fn. omitted (Perez).)
In Perez, we rejected an Eighth Amendment challenge by a 16-year-old
defendant who had been sentenced to a term of 30 years to life in prison. (Perez,
supra, 214 Cal.App.4th at pp. 51,
57-58.) We acknowledged that “[h]ow
time of eligibility for parole of course remains a matter for future judicial
development,†but because the defendant there would be eligible for parole when
he reached the age of 47, we held “there is plenty of time left for Perez to
demonstrate, as the Graham court put it, ‘some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’†(Id.
at pp. 57-58.) Because the defendant’s
sentence could not be considered a “‘functional’†or “‘de facto’ LWOP,†neither
Miller, Graham, nor Caballero
applied. (Perez, at p. 58.)
Similarly, here,
defendant was 17 years old at the time of his offense and sentenced to 40 years
plus was given 574 days of credit for time served. He will become eligible for parole long
before the end of his life expectancy.
Like the juvenile defendant in Perez,
defendant will have ample time to obtain release based on demonstrated maturity
and rehabilitation. (
cases does not assist defendant.
Defendant maintains in
both his direct appeal and his writ of habeas corpus petition that his own
research shows his life expectancy is 33.3 years. He cites the 2005 Federal Sentencing
Sourcebook and claims his sentence is functionally equivalent to life without
parole.
We reject the claim
because defendant has not (1) attached either the sourcebook or the relevant
pages of the sourcebook to his opening brief or habeas corpus petition, (2)
demonstrated the relevancy of 2005 federal sentencing statistics to defendant’s
2012 sentence in this California case, or (3) cited the most recent 2012
edition of the Federal Sourcebook, which can be found at
www.ussc.gov/Data_and_Stati...urcebooks/2012/sbtoc12.htm. As the Attorney General notes, the 2012
edition reports that only 2.2 percent of the male offenders in the study were
under 21 years old (id. at table 7)
and thus does not support defendant’s claim he will die in prison in 33.3
years.
Cruel and Unusual Punishment
Defendant argues his
sentence of 40 years to life violates the ban on cruel and unusual punishment
under the California Constitution because it was grossly disproportionate to
his culpability. Again we address the
contention despite defendant’s failure to object in the trial court given the
ineffective assistance of counsel claim made in his writ of habeas corpus
petition.
The basic test of a
cruel or unusual punishment under the California Constitution is whether it is
so disproportionate to the crime as to shock the conscience and offend
fundamental notions of human dignity. (
478; In re Lynch (1972) 8 Cal.3d 410,
424.) The defendant must demonstrate the
punishment is disproportionate in light of (1) the nature of the offense and
defendant’s background, (2) more serious offenses, or (3) similar offenses in
other jurisdictions. (Lynch, at pp.
425-427.) The record must be viewed in
the light most favorable to the sentence (People
v. Martinez (1999) 76 Cal.App.4th 489, 496), and defendant must overcome a
considerable burden in convincing us that his sentence is disproportionate (
1190, 1196-1197).
Defendant addresses only
the first Lynch factor, contending
his “sentence is grossly disproportionate to his individual culpability because
(1) he was a juvenile when he committed the offense, and (2) his accomplices’s
sentences were comparatively disproportionate relative to their
culpability.†But courts have upheld
consecutive sentences for murder and firearm use enhancements even as applied
to juveniles. In People v. Em (2009) 171 Cal.App.4th 964, we affirmed two
consecutive 25-year-to-life sentences imposed on a 15-year-old gang member for
actively aiding and abetting felony-murder and a firearm enhancement under
section 12022.53, noting “a sentence enhancement of 25 years to life is not
disproportionate to a violation of . . . section 12022.53;
the Legislature has determined that a significant increase in punishment is
necessary and appropriate to protect citizens and deter violent crime.†(People
v. Em, at p. 973; see also People v.
Demirdjian (2006) 144 Cal.App.4th 10, 12-13.)
Moreover, the record
supports the court’s finding that “during this entire process [defendant] was
present and giving guidance and direction to the shooter. The conduct of the defendant was cold blooded
and cowardly. [¶] The
victim . . . was particularly vulnerable because he was
unarmed, he was an innocent bystander, and at the complete mercy of the
defendant and his co-conspirators. The
evidence was clear that the manner in which the crime was carried out indicates
planning and sophistication and with a calculated effort.†In this regard, defendant was the one who
pointed out Navarrete’s vehicle when he and his cohorts returned to the restaurant. He stood behind Sanchez when Sanchez shot at
Navarrete and his family, and when Sanchez was out of bullets, lowered
Sanchez’s gun, directed him back to the escape vehicle, and told Sanchez to
dispose of his clothing so he could not be connected to the shooting.
The court further found
defendant, although only 17 years old when he committed the offenses in this
case, had already demonstrated he posed “a serious danger to society. [¶] . . . By his own
statements and testimony, he has chosen the criminal street gang lifestyle, and
he claimed that lifestyle in 2009 and 2010.â€
The probation report confirms “[t]he violent nature of the instant
offense demonstrates his behavior has escalated to a level which endangers the
community . . . [and] his poor progress on probation
clearly demonstrates it is no longer possible to safely supervise him at the
local level.â€
Defendant analogizes
this case to People v. Dillon,
California Supreme Court found punishment for first degree murder constituted
cruel and unusual punishment where the defendant was an unusually immature 17
year old, in no prior trouble with the law, who shot the victim in response to
a suddenly developing situation which he perceived as threatening to his own
life; while defendant largely created the threatening situation, his immaturity
prevented him from seeing the risk he created or from extricating himself from
the situation without panicking. (
defendant was unusually immature and the court found to the contrary. He did not act in panic to defend himself but
purposely went back to the restaurant with Sanchez, knowing Sanchez was
armed. He had a history of gang
involvement and criminal behavior and had just been released from juvenile hall
three days before the shooting in this case.
People v. Dillon thus does not
aid defendant.
In both his direct
appeal and his writ of habeas corpus petition, defendant compares his sentence
with those received by Maria and Sanchez, of which we granted his request for
judicial notice, and the fact Rivera was not charged with any crime. The California Supreme Court has
“‘consistently rejected the contention that intercase proportionality review is
required’ [citation], even as to codefendants.â€
(People v. Gurule (2002) 28
Cal.4th 557, 663.) In any event, Maria’s
case was different because she pleaded guilty to voluntary manslaughter and a
gang enhancement and in exchange received a 16-year sentence. That does not show defendant’s sentence was disproportionate
to hers. As to Rivera, defendant
acknowledges it is unclear what role Rivera played in the shooting and the
prosecutor may not have filed charges against him for that reason. Regardless, the decision regarding who to
prosecute and what to charge is a matter within the prosecutor’s discretion (
445, 453), and a comparison of the prosecutor’s decision with respect to Maria
and Rivera does not establish defendant received a grossly disproportionate or
shocking punishment.
Defendant also measures
his sentence against the one Sanchez received, a maximum life sentence of 50
years to life for first degree murder and personally discharging a
firearm. But because Sanchez was more
culpable as the one who fired the gun, he received a higher sentence; by
contrast defendant is eligible for probation 10 years earlier than
Sanchez. Defendant does not explain how
that is disproportionate relative to their culpability.
Perez was “not among those ‘exquisitely rare’ cases which merit
reversal on traditional disproportionality review.†(Perez,
supra, 214 Cal.App.4th at p.
60.) Neither is this case.
Ineffective Assistance of Counsel
In his writ of habeas
corpus petition, defendant asserts his counsel was ineffective because he
failed to argue his sentence was unconstitutional under Miller, supra, 567 U.S.
__ [132 S.Ct. 2455], and did not present mitigating evidence of defendant’s
youth and inexperience. To prevail on a
claim of ineffective assistance, defendant must show his attorney’s
representation fell below an objective standard of reasonableness and that he
suffered prejudice as a result. (
668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People
v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Defendant failed to satisfy his burden.
We have already
concluded Miller does not apply to
make section 12022.53’s mandatory sentencing scheme unconstitutional. Because defendant’s sentence was not
unconstitutional, it follows that his counsel was not ineffective for failing
to argue that it was. And given that
defendant’s sentence was statutorily mandated, trial counsel’s decision not to
present evidence of defendant’s youth and inexperience was entirely reasonable,
notwithstanding counsel’s declaration that he “had no tactical reason for not
presenting mitigating evidence at [defendant’s] sentencing hearing[ because he]
assumed that the statutorily mandated sentence mooted arguments in mitigation.â€
DISPOSITION
The judgment is
affirmed. The petition for a writ of
habeas corpus is denied.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
IKOLA, J.
