P. v. Gonzalez

Filed 8/17/09 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant contends his sentence of 40 years to life in prison amounts to cruel and unusual punishment. We affirm.

I

FACTS

Defendant Sergio Gonzalez was convicted of the second degree murder of Sam Chea. True findings were made that he personally discharged a firearm causing the victims death and that he personally used a firearm in the murder. The jury returned a not true finding that he committed the crime for the benefit of a criminal street gang. He was found not guilty of street terrorism. The court sentenced defendant to 40 years to life in prison.

Santa Ana Police Officer Jesus Delabarcena went to the scene of a stabbing at Century High School on September 11, 2006. His description of defendant was: Very emotional. He appeared to be very angry, and when his mom showed up, he became a little bit more emotional and went to her and gave her a hug. Defendant told his mother not to worry that he knew who had done it, it was some Chinos, in Spanish, Chinese. Defendant then placed a telephone call.

Five persons were arrested for stabbing Oscar Gonzalez, defendants 14-year-old brother. All five claim an allegiance to a criminal street gang known as Tiny Rascals or TRG. Oscar Gonzalez, who died two days after he was stabbed, claimed the Little Minnie Street gang. The victim of the shooting murder, Sam Chea, whose moniker was Midget, was a member of WDC or We Dont Care gang. The three who were arrested and charged with the instant shooting, defendant, Abel H. and Antonio Barboza, were also members of the Little Minnie Street gang.

Defendant was 15 on September 11, 2006. Some girl called him at about 3:00 p.m. and said his brother was surrounded by a lot of people and was being stabbed. She said to hurry over. Defendant ran to Century High School. When he got to the scene of the stabbing, he was told his brother had been attacked by Cambodians. At one point, while he was at the scene, he was placed in a police car and overheard a police officer radio that the people who had hurt my brother were five Asian gang members from TRG or WDC.

Afterward, Barboza twice asked defendant what he was going to do about it. Defendant started walking towards the train tracks. He heard footsteps behind him, and turned to see Barboza and Abel. He looked over the fence and saw three people. I knew one of them was Phany, she was from WDC. Defendant said: And at that same time Tony handed me something. I looked over and it was a gun. He said that was the first time he realized Barboza was carrying a gun, and that he had intended to fight whoever came [a]long that was a gang member that hurt my little brother, but with his hands. Defendant placed the gun into his waistband. He looked over and saw a car with three male Asian gang members inside.

Defendant walked up to the car and asked the victim where he was from. The response was We Dont Care, as well as a gang sign for W. To defendant that meant The Asian gang WDC. At trial, defendant said he thought somebody from WDC had stabbed his brother. He said: In my head I said I found who did it, and I shot into the car. Then he looked around and everything seemed brighter, whiter. I seen two figures running away and I assumed it was Tony and Abel so I followed them.

Abel was 13 years old when he testified, but 12 on the day of the murder. He said he was in the sixth grade on September 11, 2006, when his friend, Oscar Gonzalez, was stabbed. After the stabbing, Abel was sitting outside some apartments when defendants uncle dropped him off. Defendant started walking around and Abel said, we started following him like we had to run to catch up to him. Abel saw Tony pass something to defendant. The prosecutor asked who Tony was, and Abel answered: Tony, the one that got sentenced on this case. They saw a car and Sergio hit them up, which is a gang thing for tell[ing] where they [are] from. Abel said he turned his back and then heard a gunshot and started running.

Phany Sam claimed the We Dont Care gang in the past, but no longer does. On September 11, 2006, she saw a shooting. She said she was walking and I just saw a group of people walking all wearing white T-shirts. She estimated there were like 13 people coming from the railroad tracks right behind her apartment building. She said she saw them coming up to a black car where my brothers friends car was. Her brothers friend was named Midget; he was seated in the front passenger seat. Two others were in the car. Phany saw some guy pull out a gun. The others surrounded the car. She heard three shots and went into her house. Phany said she remembered telling a detective that she recognized the guy who shot the gun as Sergio Gonzalez.

Matthew McLeod, who works for the Santa Ana Police Department, is the detective who interviewed Phany on September 19, 2006. Phany told McLeod that defendant shot the gun that day and that she knew defendants brother Oscar. Mc Leod said: She told us that from her vantage point, which was approximately 20 feet from the victim vehicle, if you will, she saw Sergio Gonzalez, who was wearing a white T-shirt at the time, lift up his T-shirt and withdraw a handgun using his right hand from his waistband area, pointed it at the front passenger side of the vehicle and fired I think two shots that she said, into the vehicle.

McLeod testified as a gang expert. The prosecutor asked him about retaliation, and he responded: In terms of respect in the criminal street gang subculture, any action thats taken or any sign of disrespect must immediately be met with either the same and usually and I say usually, 99 percent of the time, a higher or greater level of disrespect such that, if Im a gang member and another gang member looks at me in a disrespectful fashion, which is usually termed mad dogging, if a rival gang member stares at me menacingly, then the onus is upon me to take some action, and that action is [fisticuffs], if I have a weapon, stabbing them, something like that. He said that if a member of a gang were stabbed, it would be very, very, very strange . . . for there not to be any type of retaliation.

The prosecutor posed a hypothetical question, which included the same facts in the instant case, to McLeod and asked his opinion about whether or not the hypothetical murder was committed for the benefit of the Little Minnie Street gang. McLeod said it definitely was. He explained the hypothetical gang members were acting in concert to conduct the crime. He said the hypothetical murder benefits the Little Minnie Street gang not only in exacting revenge, if you will, or retaliation for the primary or initiating a stabbing, but also garners respect for the gang as a whole as well as the individual members including the victim of the stabbing.

II

DISCUSSION

Defendant contends his sentence of 40 years to life violates the federal and state constitutional prohibitions against cruel and unusual punishment. At sentencing, the trial court said: [U]nfortunately, no way the court can undo what occurred on that horrific day. [] The court denies probation. As to the jurys finding the defendant guilty of murder in the second degree, the defendant is sentenced to the term of 15 years to life in state prison. [] As to the finding pursuant to Penal Code section 12022.53 [subdivision] (d), personal discharge of firearm causing death, the court imposes a 25-year-to-life term consecutive to that, for a total term of 40 years to life in state prison. [] The personal use allegation of 12022.5 is stayed pursuant to 12022.53 [subdivision] (f).

The probation report states: According to records of the California Bureau of Criminal Identification and Information, the Federal Bureau of Investigation, and the Orange County Probation Department, the defendant has no prior record of arrest. Regarding his adjustment in custody, the probation report states: Telephone contact was established with Supervisor Bart Hancock of Unit T at Juvenile Hall. He confirmed the defendant has not had any fighting behavior nor disciplinary action or behavioral incidents.

As to social history, the probation officer says defendant was raised in an unstable environment. The report says, while defendants mother did not abuse controlled substances and was a loving and stable parental figure, his father was an alcoholic and addicted to methamphetamine and was physically abusive with the children.

It appears the family moved to Santa Ana when defendant was about 11 years old. Prior to that, he had never been exposed to gangs. The probation officer reports defendant earned average grades in school and was not considered a discipline problem in the home, school, or community. At first, his contact with gang associates was limited because defendant was involved with school sports. But he fractured two ribs playing freshman football and was told he could not play for the rest of the year. After that, he quit school and his family moved to Little Minnie Street gang territory.

Defendant reported to the probation officer that he tried to dissuade his 13-year-old brother from jumping into a gang just three months prior to the instant crime. He said he suspects his brother stared down the wrong group of people and was stabbed during a fight at school, as a result.

Defendant verbalized remorse for the instant crime. The probation officer wrote: He explained that he was devastated to learn that his 14-year-old brother, who was in critical condition and was being treated for a stab wound that he incurred earlier that day, was not going to make it. The defendant made a grave mistake when he left the hospital, specifically to seek revenge. He was obviously not thinking clearly and was overcome by emotion and grief. After speaking with the defendant, it appears that he surrounded himself with the very people whom he had warned his brother about, and engaged in retaliatory conduct in order to avenge his brothers death. Sadly, the result was that an innocent person was targeted solely based on his skin color and suffered a needless death. The defendant acknowledged that the victim was not at all affiliated with the earlier gang-related fight, but was simply the first Asian gang member that he came across. The probation officer recommended that probation be denied and sentence imposed.

Penal Code [s]ection 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies, including murder. . . . Subdivision (d) of the statute provides for an additional consecutive 25-year-to-life prison term for any person convicted of murder who, in the commission of a felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . . [Citation.] (People v. Cobb (2004) 124 Cal.App.4th 1051, 1056-1057.)
With regard to evaluating the constitutionality of a statute, [t]he judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best positionto evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

The Eighth Amendment to the United States Constitution declares: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The clause is applicable to sentences for terms of years. (Lockyer v. Andrade (2003) 538 U.S. 63, 72.)

Article I, section 17, of the California Constitution proscribes [c]ruel or unusual punishment. A prison sentence runs afoul of article I, section 17, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)

[T]he courts are to consider not only the offense in the abstracti.e., as defined by the Legislaturebut also the facts of the crime in question [citation]i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Defendant has no criminal record prior to this murder. He has followed the rules at juvenile hall, and has not gotten into trouble since his arrest. He grew up in a household where physical punishment was regularly delivered to the children. Until some months prior to this incident, he acted responsibly by going to school and involving himself with sports instead of gangs.

He was 15 years old when he pulled the trigger. The significance of age has been discussed by our United States Supreme Court in Roper v. Simmons (2005) 543 U.S. 551. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, . . . [a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. [Citations.] (Id. at p. 569.) The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. (Ibid.) The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. [Citation.] [] These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. (Ibid.) The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minors character deficiencies will be reformed. (Ibid.)

As noted by the trial judge, September 11, 2006 was a horrific day. Prior to the instant murder, defendants younger brother was on his death bed after a gang attack, and defendant was emotionally distraught. But this was not a situation where a poor deprived kid found himself at the wrong place at the wrong time and merely went along with others. Nor is it a case where defendant felt threatened and shot a gun in a panic of fear. There is no indication he was immature for his age. He was well aware of the dangers of gang involvement as he had only recently warned his younger brother about them.

Defendant set out to seek revenge. He led the other gang members to the scene of the murder when he set off on his trek toward the railroad tracks. But for his actions, there would have been no murder. He was cold blooded in his venture to settle the score. He admittedly selected the first Asian gang member he came across. There is no indication the victim had anything to do with the attack on defendants brother. He was targeted based on his skin color and gang affiliation. Defendant armed himself and, without mercy, murdered Sam Chea.

Under these circumstances, we cannot conclude his sentence of 40 years to life in prison is either cruel or unusual. The sentence, while certainly lengthy, is not out of proportion to the offense and is within the limits of civilized standards.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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