P. v. Aurello-Ortiz

Filed 8/13/09 P. v. Aurello-Ortiz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster, Judge. Affirmed with directions.

J. Kahn, 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, Senior Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.

At a party, a fistfight broke out. At one point, two men were beating up one smaller man; four or five bystanders were trying to separate them. When the hostess screamed, [S]omebody do something, defendant took out a gun and shot the two attackers. One died; the other was seriously injured. As a result, defendant was found guilty of second degree murder and attempted murder and sentenced to 40 years to life in prison.

Defendant now contends that this was cruel and unusual punishment, in part because he was only 17 years old when he committed the crimes. We disagree. We also reject defendants contention that he was not awarded the correct amount of presentencing custody credits. We will direct the trial court to correct what the People concede is a clerical error affecting the sentence. Otherwise, we will affirm.

I

FACTUAL BACKGROUND

On the night of January 19-20, 2007, there was a party at a house in Colton. Anthony Mora, who lived at the house, was at the party, as was his cousin, Eddie Villegas. Other attendees included Angel Rodriguez, along with his cousin, Aly Borecha. All four men were drinking.

During the party, Borecha and Mora went out to the front yard and started throwing punches at each other.^[1] Mora was knocked down, but he managed to get up and escape by running away into the back yard.

Both Borecha and Rodriguez then started fighting with Villegas. Borecha was five feet nine inches tall and weighed 220 pounds; Rodriguez was five feet seven inches tall and weighed 190 pounds. Villegas was little and skinny. At least so far, however, Villegas had not been seriously injured. Four or five bystanders were trying to pull Borecha and Rodriguez away from Villegas.

Defendant was standing on the front porch, watching the fight. Borecha and Rodriguez did not know defendant; Mora and Villegas knew him only slightly.

The hostess screamed, Somebody help me[,] do something. At that moment, defendant pulled out a handgun and fired at Rodriguez and Borecha.^[2] He was only about 10 feet away. Rodriguez was struck by three bullets and killed. Borecha was struck by four bullets. He survived, but he had to use a wheelchair for about eight months; by the time of trial, he was able to walk with the help of a cane.

After the shooting, defendant walked away. He then fled to Mexico. After his uncle intervened, however, he turned himself in.

Inside Rodriguez and Borechas SUV, which was parked outside the house, there was a baseball bat (but no balls or gloves). When the police arrived, the passenger-side doors of the SUV were open.

II

PROCEDURAL BACKGROUND

Defendant was found guilty on one count of second degree murder (Pen. Code,  187, subd. (a)) and one count of unpremeditated attempted murder (Pen. Code,  187, subd. (a), 664). In connection with both counts, an enhancement for personally and intentionally discharging a firearm and causing great bodily injury or death was found true. (Pen. Code,  12022.53, subd. (d).)

The trial court sentenced defendant to 15 years to life for murder (count 1), plus 25 years to life on the firearm enhancement. It sentenced him to seven years for attempted murder (count 2), plus 25 years to life on the firearm enhancement, to be served concurrently. Accordingly, the total sentence was 40 years to life in prison.

III

CRUEL AND UNUSUAL PUNISHMENT

Defendant contends that the sentence of 40 years to life constitutes cruel and unusual punishment. He argues that a life sentence is cruel and unusual as applied to any person who was under 18 at the time of the crime. He further argues that it is cruel and unusual under the circumstances of this case, including not only the fact that he was under 18, but also the fact that he had a minimal criminal record, as well as the fact that he supposedly committed his crimes in a well-intended but misguided attempt[] to help someone who was being severely beaten by two people in unison.

Preliminarily, the People argue that defense counsel forfeited this contention by failing to raise it below. We agree. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

In a footnote, however, defendant also contends that, if defense counsel forfeited this contention, that forfeiture constituted ineffective assistance of counsel. The People respond that this contention, too, has been forfeited because it has not been supported with a full-fledged argument. Under these circumstances, however, the ineffective assistance of counsel argument requires little additional discussion. If the sentence did constitute cruel and unusual punishment, there could be no rational tactical purpose for failing to raise the issue; moreover, the failure to raise it would necessarily be prejudicial. We conclude that we should reach the underlying cruel and unusual punishment issue, even if only under the rubric of ineffective assistance of counsel. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230; People v. DeJesus, supra, 38 Cal.App.4th at p. 27.)

A. Federal Constitutional Principles.

Under the Eighth Amendment, [a] gross disproportionality principle is applicable to sentences for terms of years. (Lockyer v. Andrade (2003) 538 U.S. 63, 72 [123 S.Ct. 1166, 155 L.Ed.2d 144].) Outside the death penalty context, however, successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.] (Ewing v. California (2003) 538 U.S. 11, 21 [123 S.Ct. 1179, 155 L.Ed.2d 108] [lead opn. of OConnor, J.].) For example, a defendant can constitutionally be sentenced to life in prison without the possibility of parole for possession of 672 grams of cocaine. (Harmelin v. Michigan (1991) 501 U.S. 957, 961, 990-994 [111 S.Ct. 2680, 115 L.Ed.2d 836] [lead opn. of Scalia, J.]; see also id. at pp. 1008-1009 [conc. opn. of Kennedy, J.].) A fortiori, such a sentence is permissible for murder.

Defendant relies on Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1], which held that the death penalty constitutes cruel and unusual punishment as applied to persons who were under 18 when they committed their crimes. The court looked to the evolving standards of decency that mark the progress of a maturing society . . . . [Citation.] (Id. at p. 561.) It found a national consensus against the death penalty for juveniles . . . . (Id. at p. 564; see also id. at p. 567.) Finally, it noted that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. (Id. at p. 575.)

Here, however, we are not concerned with the death penalty. Proportionality review is one of several respects in which [the Supreme Court has] held that death is different, and ha[s] imposed protections that the Constitution nowhere else provides. [Citations.] (Harmelin v. Michigan, supra, 501 U.S. at p. 994 [lead opn. of Scalia, J.]; see also Ring v. Arizona (2002) 536 U.S. 584, 606 [122 S.Ct. 2428, 153 L.Ed.2d 556] [[D]eath is different.].) Moreover, defendant has not demonstrated that there are any evolving standards rejecting an indeterminate life term for a minor, nor any national or international consensus against such a sentence.

In sum, federal precedent does not preclude the imposition of an indeterminate life sentence on defendant.

B. State Constitutional Principles.

Under the state constitutional standard, [t]o determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendants involvement in the crime, the manner in which the crime was committed, and the consequences of the defendants acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.] If the court concludes that the penalty imposed is grossly disproportionate to the defendants individual culpability [citation], or, stated another way, that the punishment shocks the conscience and offends fundamental notions of human dignity [citation], the court must invalidate the sentence as unconstitutional. [Citation.] [Citation.] (People v. Wallace (2008) 44 Cal.4th 1032, 1099.)

Our Supreme Court has emphasized the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned unless their unconstitutionality clearly, positively, and unmistakably appears. [Citation.] [Citation.] (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.)

Defendant acknowledges that in People v. Demirdjian (2006) 144 Cal.App.4th 10, the court held that it was not cruel and unusual punishment to impose an indeterminate life term without the possibility of parole (LWOP) on a person who was a minor when he committed the crimes two first degree murders with special circumstances. (Id. at pp. 13-16.) Demirdjian cited People v. Guinn (1994) 28 Cal.App.4th 1130 [Fourth Dist., Div. Two], which had earlier come to virtually the same conclusion (except that there, the defendant had been convicted of only one murder). (Demirdjian, at p. 16.) Defendant urges us not to follow Demirdjian. Evidently he does not realize that it was this court that decided Guinn.

In Guinn, we stated: Defendant Guinn argues that imposition of a sentence of LWOP on a 17-year-old is extreme. While we agree that the punishment is very severe, the People of the State of California in enacting the provision have made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment. (People v. Guinn, supra, 28 Cal.App.4th. at p. 1147; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 17 [sentencing a 14-year-old to 50 years to life was not cruel and unusual punishment]; People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 [sentencing a 14-year-old to 26 years to life was not cruel and unusual punishment]; Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 583-584 [sentencing a 15-year-old to life without parole was not cruel and unusual punishment].)

Defendant does argue that Demirdjian and, implicitly, Guinn are distinguishable because his conduct was less heinous. We recognize that both Demirdjian and Guinn dealt with the even more serious crime of first degree murder with special circumstances. At the same time, however, they also dealt with the even more severe penalty of life without parole. We cannot say that the penalty of life with the possibility of parole is grossly disproportionate to the crime of second degree murder. This is true even where the murderer was a juvenile.

It remains true even when we consider defendants particular circumstances. He argues that he had an insignificant prior criminal record. Admittedly, his record consisted of only one prior misdemeanor. That particular misdemeanor, however, was unlawful possession of a firearm. (Pen. Code,  12021, subd. (a).)^[3] Evidently defendant learned nothing from getting caught; he persisted in carrying a firearm until it facilitated murder.

He also argues that he committed the crimes in a misguided attempt to prevent Villegas from being beaten up severely by two very large, intoxicated, people . . . . The jury, however, was instructed that if defendant acted reasonably in defense of another, he would have a complete defense (CALCRIM No. 505), and if he acted unreasonably in defense of another, he would be guilty of only voluntary manslaughter (CALCRIM No. 571) and attempted voluntary manslaughter (CALCRIM No. 604). Defendant does not argue that any of these instructions were erroneous. Thus, the jury evidently concluded, beyond a reasonable doubt, that defendant did not actually believe that his use of deadly force was necessary to prevent Villegas from suffering great bodily injury.

And the record supports that conclusion. Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citation.] (People v. Em (2009) 171 Cal.App.4th 964, 971.) None of the men in the fight had a weapon. Mora had already gotten away by the simple expedient of running away into the back yard. He suffered a [b]usted lip, knots on [his] head, [a] swollen eye, [a] cut ear, and thats about it. Admittedly, Villegas was at some risk from his larger attackers. So far, however, he had not been injured, and several bystanders were trying to pull the attackers away and stop the fight.^[4] Indeed, it is a miracle that defendant did not shoot one of the bystanders.

If defendant really insisted on taking matters into his own hands, all he needed to do was fire a warning shot or two. Instead, he tried to murder two strangers in cold blood.

At sentencing, the trial court stated: You know, the other day somebody asked me what was the most disturbing case I had. I didnt talk about it, but this one was it . . . . [] . . . [A]n individual . . . comes to a party with a gun . . . and doesnt even hardly know the people that are involved in the fight on either side and when somebody stands up and says, Somebody stop this, . . . he thinks the best way to stop it is to start shooting, ends up killing one person and seriously injures another. Its so senseless to me. Its an indictment of the world we live in. Its very disturbing that that type of mentality exists in the community.

On this perfectly reasonable view of the facts, a sentence of 40 years to life was not grossly disproportionate to defendants crimes, regardless of his age. Defendant was the direct perpetrator; he had the intent to kill; and he used a firearm. Life sentences pass constitutional muster [even] for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill. [Citations.] Additionally, a sentence enhancement of 25 years to life is not disproportionate to a violation of Penal Code section 12022.53; the Legislature has determined that a significant increase in punishment is necessary and appropriate to protect citizens and deter violent crime. [Citations.] (People v. Em, supra, 171 Cal.App.4th at pp. 972-973.) The trial court did show some leniency by running the sentences on counts 1 and 2 concurrently rather than consecutively. (See part V, post.)

We therefore conclude that defendants trial counsel did not render ineffective assistance by failing to raise cruel and unusual punishment below.

IV

PRESENTENCE CUSTODY CREDITS

The trial court awarded defendant 500 days of presentence custody credits. Defendant contends that that the correct figure is 502 days. The People concede that the trial court erred, but argue that the correct figure is 501 days. We reject the Peoples concession.^[5]

Presentence custody credits are calculated from when the defendant is booked, not when the defendant is arrested. (People v. Macklem (2007) 149 Cal.App.4th 674, 702; People v. Ravaux (2006) 142 Cal.App.4th 914, 919-921.) Defendant was arrested around 11:00 p.m. on January 23, 2007, at the Tijuana border. He was then driven to San Bernardino Juvenile Hall. He could not possibly have been booked until sometime on January 24, 2007.

Defendant was sentenced on June 6, 2008. Including both the first and last day, as required (People v. Smith (1989) 211 Cal.App.3d 523, 526) and even recognizing that 2008 was a leap year this is only 500 days.

V

CLERICAL ERROR REGARDING CONSECUTIVE SENTENCING

Defendant contends that the sentencing minute order and the abstract of judgment both erroneously recite that the sentences on count 1 and count 2 were consecutive rather than concurrent. The People concede the error.

In its oral pronouncement of judgment, the trial court stated not just once but twice that it was running the two terms concurrently. Moreover, it crossed out the probation officers recommendation that the terms be consecutive and wrote in the word concurrent. Admittedly, when it was done pronouncing sentence, it introduced an element of uncertainty by stating, Total commitment . . . is for the determinate sentence of seven years, followed by the indeterminate sentence of 40 years to life . . . . (Italics added.) Nevertheless, the People concede that it intended to sentence concurrently. We accept their concession.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citation.] (People v. Morelos (2008) 168 Cal.App.4th 758, 768.) We will direct the trial court to correct the record accordingly.

VI

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended sentencing minute order and an amended abstract of judgment, both reflecting that the sentences on counts 1 and 2 are to be served concurrently, and to forward certified copies of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code,  1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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^[1] Some eyewitnesses testified that this initial fight was between Rodriguez and Mora. Based on the testimony of the participants, however, it appears that it was between Borecha and Mora, although Rodriguez may have joined in punching Mora a few times.

While the exact motive for the fight is unclear, Rodriguez was known to have some kind of grudge against Mora. Mora and Borecha Rodriguezs cousin started off the hostilities by giving each other looks.

^[2] The hostess of the party volunteered that defendant was scared and acted in self-defense. She was also the only witness who testified that defendant was among those trying to stop the fight.

^[3] The record on this point is somewhat confusing. It indicates that in 2005, when defendant was 15, he was charged with carrying a concealed firearm (Pen. Code,  12025, subd. (a)); he received a juvenile adjudication for unlawful possession of a firearm (Pen. Code,  12021, subd. (a)) as a misdemeanor. Unlawful possession of a firearm, however, is a straight felony, not a misdemeanor or a wobbler. Moreover, possession of a firearm is unlawful under Penal Code section 12021, subdivision (a) if and only if the defendant (1) has a prior felony conviction, (2) has two prior convictions for brandishing a firearm (Pen. Code,  417, subd. (a)(2)), or (3) is addicted to a narcotic. As defendant does not have any qualifying prior convictions, this would appear to mean that there was a finding or an admission that he was addicted to a narcotic.

^[4] Defendant asserts that Rodriguez and Borecha were so large [that] partygoers could not get a hold of their arms to pull them off Villegas. The cited portions of the record do not support this assertion, nor have we found any support for it elsewhere. To the contrary, one witness testified that the attempt to pull the attackers away was already [s]omewhat successful. Another testified that no one was really winning the fight, because we just tried to separate them as soon as we could.

^[5] Inasmuch as defendant is serving a term of 40 years to life, it might be rational for the People to forgo disputing two days of custody credits. Since they have chosen to dispute one day, however, they more properly should have disputed both.