P. v. Waite
Filed 12/4/13 P. v. Waite CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
LUKE AUSTIN WAITE,
Defendant and
Appellant.
2d Crim. No.
B245260
(Super. Ct.
No. F431155)
(San
Luis Obispo County)
Luke Austin Waite and
two of his friends committed an armed home invasion robbery of people they
believed were drug dealers. Masked, clad
in black clothing and armed with handguns, Waite and accomplice Jason Graves burst
into the home and ordered the occupants to the wall or to the floor. During an ensuing fight, Waite shot one of
his resisters in the torso and another in the face, both at close range. A third resister wrested Graves'
gun from him and shot both Waite and Graves, killing the
latter. Both victims of Waite's gunshots
suffered serious injuries
but survived.
Waite now appeals the
judgment entered after a jury convicted him on two counts of attempted willful,
deliberate and premeditated murder (Pen. Code,
in concert (§§ 664/211, 213, subd. (a)(1)(A)), and one count each of first
degree burglary (§ 459) and conspiracy to commit robbery (§ 182,
subd. (a)(1)). The jury also found true
allegations that appellant personally used and intentionally discharged a
firearm in committing the attempted murders, robberies, and burglary (former § 12022,
subd. (a)(1), § 12022.53, subd. (d)), and inflicted great bodily injury on
the victims in committing the attempted murders, two of the robberies, and the
burglary (§ 12022.7).
name="_ftnref2" title="">[2] The
trial court sentenced him to a state prison term of 32 years 8 months plus 64
years to life. Appellant contends the
evidence is insufficient to support the findings that the attempted murders
were willful, deliberate, and premeditated.
He also claims that his sentence amounts to
STATEMENT OF FACTS
On the night of April 8, 2009, Anthony Joseph
Cappelluti, Benjamin Terry, and Seth Terrazas were at their apartment in Morro
Bay along with Christopher
Sidebottom, Wade Johnson, and Derek Rodrigues.
Shortly after 10:00 p.m., two
men, later identified as appellant and Jason Graves, burst into the apartment
through the kitchen door. Appellant and
Graves were holding handguns and were wearing ski masks and dark clothing. They claimed to be police officers and ordered
everyone to move against the wall or get on the ground.
Terrazas grabbed Graves
and began struggling with him.
Cappelluti put his arms around appellant and began pushing him back
toward the kitchen door. Terry,
Sidebottom, Johnson, and Rodrigues ran out of the apartment through the front
door.
Cappelluti managed to
push appellant out of the kitchen door and onto the adjacent carport. As the two continued struggling, appellant
fired at least two shots. Sidebottom witnessed
the struggle and came to Cappelluti's aid.
After Sidebottom used his knee to strike appellant in the head several
times, appellant shot him in the torso at close range. Sidebottom stumbled away and hid behind a
vehicle. As Cappelluti stood
behind
appellant and pinned him against a truck, appellant held his gun over his head
and fired in a backwards direction, hitting Cappelluti in the face.
In the meantime,
Terrazas continued struggling with Graves inside the apartment. Terrazas tackled Graves and placed his knees
on each side of Graves' ribcage. As
Terrazas' left hand was grasping the barrel of Graves' gun, the weapon fired
and the bullet hit the front door jam. Graves
used his free hand to strike Terrazas several times on the side of his head,
causing a large gash that ultimately left a scar. As the two men continued to struggle, Terrazas
managed to turn the gun toward Graves' stomach and pulled the trigger. Graves released the gun and Terrazas grabbed
it. Terrazas stood up and saw appellant
approaching the front door with a gun in his hand. Terrazas shot appellant in the torso and
appellant staggered out of sight. Terrazas
then pointed the gun back at Graves and shot him again. Terrazas went outside and saw appellant
stumbling toward the carport. Terrazas
fired another shot at appellant, and appellant dropped to the ground. Terrazas checked appellant for signs of life
and believed he was dead. Terrazas
removed appellant's gun and put both weapons on the bed in Cappelluti's bedroom. He then grabbed a knife from the kitchen and approached
appellant, who was now lying outside the front door.
The police arrived
shortly thereafter. Graves was found in
the carport area and was pronounced dead at the scene. Appellant was taken to the hospital, where he
was treated for his gunshot wounds. In
one of the bedrooms of the apartment, the police found over $9,500 in cash, two
large bags of marijuana, and a scale. The
police also
>
found
a .25-caliber semiautomatic handgun and a .357-caliber revolver on Cappelluti's
bed.
Joshua Coleman, who was
initially charged as appellant's codefendant, testified for the prosecution.
smoked marijuana together. On the night
of the incident, appellant came to Coleman's house and said he needed someone
to act as the getaway driver for a robbery.
Coleman agreed to participate. Coleman
drove appellant to appellant's house, where they smoked marijuana. While at appellant's house, Coleman saw
appellant holding a .25-caliber gun that Coleman had seen on a previous
occasion.
About an hour later,
Coleman and appellant drove to Graves' house in San Luis Obispo. Coleman then drove appellant and Graves to
Morro Bay. Either appellant or Graves directed
Coleman to drive by the house where the robbery was to take place. Coleman was told that the target of the
robbery was a drug dealer. Several cars
were parked in front of the house, so they drove to a nearby parking lot. When they returned to the house about 20
minutes later, fewer cars were there. Coleman
parked his car and left the engine running.
Appellant and Graves, both of whom were wearing dark clothing, got out of
the car and walked toward the house.
Shortly after appellant
and Graves had exited the car, Coleman heard gunshots. He drove further away from the house, then
returned when he saw either appellant or Graves wearing a ski mask and holding
a gun in his hand. Coleman expected him
to get into the car, but he walked back toward the house. After hearing another round of gunshots,
Coleman counted to 30 and drove away.
Appellant offered no
evidence in his defense.
>
DISCUSSION
Sufficiency
of the Evidence
Appellant contends his
convictions for the attempted murders of Cappelluti and Sidebottom must be
reversed because the evidence is insufficient to support the jury's findings
that the crimes were willful, deliberate, and premeditated.
In reviewing the
sufficiency of evidence to support a conviction, we examine the entire record
and draw all reasonable inferences therefrom in favor of the judgment to
determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in prosecutions
primarily resting upon circumstantial evidence.
(Ibid.) "'An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise.'" (
Our review does not redetermine the weight of the evidence or the
v. Albillar (2010) 51 Cal.4th 47, 60.)
An attempted murder is
"premeditated and deliberate if it occurred as the result of preexisting
thought and reflection rather than unconsidered or rash impulse." (People
v. Stitely (2005) 35 Cal.4th 514, 543.) "'". . . 'Deliberation'
refers to careful weighing of considerations in forming a course of action;
'premeditation' means thought over in advance.
[Citations.]"
[Citation.] "'Premeditation
and deliberation can occur in a brief interval.
"The test is not time, but reflection. 'Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.'"' [Citation.]" [Citations.]'
[Citation.]" (
1056, 1069.)
In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court
identified three types or categories of evidence relevant to the determination
of premeditation and deliberation: (1) planning activity; (2) motive; and (3)
manner of killing or attempt to kill. (
1125.) Although these categories of
evidence are not exclusive and other types or combinations of evidence might also
support a finding of premeditation and deliberation, such a finding will
generally be upheld when all three Anderson
factors are present. (
p. 543.)
Substantial evidence of
all three Anderson factors is present
here. Appellant and his accomplices
planned to commit a home invasion robbery of someone they thought was a drug
dealer. The undisputed evidence that
appellant burst into the apartment while armed with a loaded handgun, and
immediately proceeded to point the weapon at Cappelluti's head, supports an
inference that appellant engaged in planning activity and was prepared to kill
in order to complete the robbery. (See,
e.g., People v. Lee (2011) 51 Cal.4th
620, 636 [sufficient evidence of planning activity present where
"defendant brought a loaded handgun with him on the night [the victim] was
killed, indicating he had considered the possibility of a violent
encounter"]; People v. Young (2005)
34 Cal.4th 1149, 1183 [jury could infer planning activity from evidence that
defendant "executed his planned entry into the house with a loaded gun in
his hand"]; People v. Brito (1991)
232 Cal.App.3d 316, 323 [evidence of planning activity present where defendant
"held the loaded gun pointed toward the victim's face when making his demands"].) Appellant also had a motive to kill in order
to both overcome his victims' resistance and ultimately avoid his
apprehension. (See, e.g.,
1082 (Koontz) [motive of killing
"to effectuate a robbery" present where defendant pulled a handgun on
his victim and fired a shot in victim's abdomen after victim refused
defendant's demand for his car keys]; Brito,
supra, at p. 323 [sufficient evidence of motive to kill where defendant
shot victim who fled and "refus[ed] to comply with his demands for money
and gold"].)
Finally, the manner in
which appellant attempted to kill his victims supports an inference that he did
so with premeditation and deliberation. Viewed
in the light most favorable to the judgment, the manner in which he shot both
victims indicates that appellant acted pursuant to "a calculated design to
ensure death rather than an unconsidered explosion of violence. [Citation.]" (People
v. Horning (2004) 34 Cal.4th 871, 902-903.)
The fact that appellant fired a shot into a vital area of both victims'
bodies at close range demonstrates that he acted with a deliberate and
premeditated intent to kill. (
Appellant argues that
"the record is virtually devoid of the three types of evidence set forth
in Anderson as supporting an
inference of premeditation and deliberation." In so arguing, appellant at most demonstrates
that the evidence could have
supported a finding that the shootings were the result of an "unconsidered
or rash impulse" rather than a preconceived design to kill. (People
v. Stitely, supra, 35 Cal.4th at p. 543.)
It is of no moment, however, whether the evidence might have led to
inferences or findings favorable to the defense rather than the
prosecution. (People v. Perez, supra, 2
Cal.4th at p. 1124.) The issue is
whether the evidence, when viewed in the light most favorable to the judgment,
supports the jury's findings that appellant acted with premeditation and
deliberation when he concededly attempted to kill his victims. The foregoing discussion answers that
question in the affirmative.
Cruel
and Unusual Punishment
Appellant claims that
his state prison sentence of 32 years 8 months plus 64 years to life amounts to
cruel and unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.) He relies upon
violates the California prohibition against cruel or unusual punishment if
"it is grossly disproportionate to the offense for which it is
imposed." (Id. at p. 478 & fn. 25.) He claims that a consideration of "'the
nature of the offense and/or the offender, with particular regard to the degree
of danger both present to society'" compels the conclusion that his
sentence constitutes cruel or unusual punishment. (Id.
at p. 479.)
Appellant has forfeited
this argument on appeal because he did not raise this objection to his sentence
in the trial court. (
568, 583.) In any event, the claim lacks
on its merits. The Eighth Amendment to
the federal Constitution "contains a 'narrow proportionality principle'
that 'applies to noncapital sentences.'"
(Ewing v. California (2003)
538 U.S. 11, 20 [sentence of 25 years to life for commercial burglary under California's
three strikes law was not grossly disproportionate to the offense].) "A punishment violates the Eight
Amendment if it involves the 'unnecessary and wanton infliction of pain' or if
it is 'grossly out of proportion to the severity of the crime.'" (People
v. Retanan (2007) 154 Cal.App.4th 1219, 1230 (Retanan).) The United States
Supreme Court has noted that this principle is applicable only in the
"'exceedingly rare'" and "'extreme'" case. (Lockyer
v. Andrade (2003) 538 U.S. 63, 73; People
v. Meneses (2011) 193 Cal.App.4th 1087, 1092 (Meneses).)
Punishment may violate the
California Constitution if "'it is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends
(Retanan,
supra, 154 Cal.App.4th at pp. 1230-1231.)
The defendant bears the considerable burden of establishing that his
sentence is unconstitutional. (
1092-1093 [only in the rarest of cases does a sentence constitute cruel and
unusual punishment].) Decisions finding
a disproportionate sentence are an "exquisite rarity." (People
v. Em (2009) 171 Cal.App.4th 964, 972.)
We consider three
factors in determining whether a defendant's punishment violates the
Constitution. (Dillon, supra, 34 Cal.3d at pp. 478-480.) First, we examine the nature of the offense
and the offender with particular regard to the degree of danger each
presents. Second, we compare the
challenged punishment with punishments for more serious crimes in the same
jurisdiction. Third, the court compares
the challenged punishment with punishments for the same offense in other
jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-429, superseded by statute on
another ground as explained in People v.
Caddick (1984) 160 Cal.App.3d 46, 51.)
Appellant does not discuss the intrastate and interstate comparison
factors, which we deem a concession that his sentence withstands constitutional
scrutiny on each basis. (
1231.)
Appellant has not met his
considerable burden of establishing that his sentence is disproportionate to
the nature of his offense and the offender.
He committed a violent home invasion robbery with a loaded weapon. Moreover, he immediately began firing his gun
and shot both of his victims at close range, causing both of them to suffer
great bodily injury. As the People note,
a considerable portion of appellant's sentence is based on enhancements imposed
under section 12022.53, which courts have determined do not amount to cruel and
unusual punishment. (See
1183, 1213-1214; People v. Martinez (1999)
76 Cal.App.4th 489, 494-496.) Although appellant's
youth and relative lack of a significant criminal record weigh in his favor,
they do not outweigh the substantial seriousness of the offense. (People
v. Gonzales (2001) 87 Cal.App.4th 1, 17 ["The lack of a significant
prior criminal record is not determinative in a cruel and unusual punishment
analysis"].) For these same
reasons, Waite's sentence is not grossly disproportionate within the meaning of
the Eighth Amendment. (
957, 1001 [life without parole sentence for possessing 672 grams of cocaine not
cruel and unusual].)
name="_ftnref6" title="">[6]
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Ginger
E. Garrett, Judge
Superior
Court County of San Luis Obispo
______________________________
Susan B. Lascher, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy
Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title="">[1] All further undesignated
statutory references are to the Penal Code.
with the murder (§ 187, subd. (a)) of his accomplice, Jason Graves. After the jury was unable to reach a verdict
on that count, the court declared a mistrial as to that count and later
dismissed it.
