P. v. Burns
Filed 1/11/13 P.
v. Burns CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON M.
PARKS-BURNS et al.,
Defendant and Appellant.
D059348
(Super. Ct. Nos.
FSB800199;
FSB703578)
APPEALS from
judgments of the Superior Court of
Bernardino County, Ronald M. Christianson and Bryan F. Foster, Judges. Affirmed.
Appellants
Brandon Parks-Burns and Todd Jose Tibbs were jointly tried for the
(Pen. Code,
title="">[1] § 187, subd. (a); count.
1), and the premeditated attempted murder of Sequwan Lawrence (§§ 187, subd.
(a), 664; count 2). In the first trial,
the jury deadlocked on the murder count as to both appellants. Parks-Burns later pleaded guilty to
premeditated attempted murder of Lawrence. The jury convicted Tibbs of that charge. In October 2010, the court sentenced Tibbs to
a determinate term of 20 years plus an indeterminate term of 15 years to
life.
Appellants were
tried for the murder of Charles Marshall a second time. Before the close of evidence, Tibbs pleaded
guilty to the lesser included offense of voluntary manslaughter, in exchange
for a six-year term to be served concurrently with his sentence from the first
trial. Parks-Burns refused the
prosecutor's offer that he plead guilty to a nine-year sentence for assault
with a firearm instead of stand trial for murder. The second jury convicted Parks-Burns of
first degree murder, and found true allegations that a principal personally and
intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)), and
the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang
(§186.22, subd. (b)). In September 2010,
the court sentenced Parks-Burns to a total of 50 years to life in state prison
as follows: 25 years to life on the murder conviction, and a consecutive 25
years to life on the gun enhancement.
The court ordered him to pay fines, including $7,500 for victim
restitution. (§ 1202.4; Gov. Code, §
13967, subd. (c).)
On appeal Tibbs
contends, (1) the court violated his constitutional
motion to sever the charges against him from those against Parks-Burns; (2)
insufficient evidence supports his attempted murder conviction; (3) the court
erroneously failed to instruct the jury on premeditation, deliberation and
willfulness, and on the lesser included offense of
Parks-Burns
contends that the trial court erroneously (1) failed to instruct the jury about
accomplice testimony, thus denying him due process and a jury trial under the
federal Constitution; (2) admitted irrelevant evidence of the attempted murder
in violation of his constitutional rights; (3) sentenced him to a cruel and
unusual term of 50-years to life instead of nine years, simply because he
exercised his right to a jury trial; and (4) imposed a victim restitution award
without making a finding that substantial evidence supported the amount. Tibbs joins in these contentions where
applicable. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Lawrence
Lawrence
testified he was not a gang member. In
the days before the underlying crime occurred, he became somewhat upset that
22-year-old Tibbs, whose gang moniker was "Mookie," was dating his
15-year-old sister. Lawrence told police
his sister threatened to have Tibbs beat him up. Lawrence also testified Tibbs had confronted
him with a gun approximately two weeks before the incident in this case.
The attempted
murder occurred on September 7, 2007, when Lawrence was outside his San
Bernardino, California residence with his girlfriend, Kianna Thomas, his
brother, and a cousin called "CJ."
Tibbs and Parks-Burns approached and pushed Lawrence's brother and CJ
against a car. Parks-Burns held a gun to
CJ's face and, after an exchange of words, pointed it at Lawrence's face. Lawrence grabbed the gun, but it fell to the
ground. Immediately afterwards, Lawrence
saw Tibbs pointing the gun at him.
Lawrence restrained Parks-Burns, and used him as a shield to avoid
getting shot. Lawrence heard gunshot
fire. He eventually released Parks-Burns
and went home.
That
night, San Bernardino City Police Officer Jessie Ludikhuize responded to the
crime scene and interviewed Lawrence, who recounted that Parks-Burns and Tibbs
had passed by his house at least twice that evening before confronting him and
his companions. Lawrence reported that
Parks-Burns later pointed a gun at Lawrence's head, saying, "[Y]ou're
going to get killed now." Lawrence
grabbed the gun and struggled with Parks-Burns.
The gun fell. Lawrence heard a
gunshot that missed him. He turned
around and saw Tibbs pointing a gun at him.
During the incident, Tibbs yelled, "18th Street," which is the
name of Tibbs's gang. That night,
Lawrence identified both Park-Burns and Tibbs in a field showup.
San
Bernardino Police City Officer Joseph Shuck also responded to the crime scene
that night and interviewed Thomas, who said Parks-Burns had initially asked
Lawrence and CJ "where they're all from." Parks-Burns next pointed a gun to CJ's head,
but Tibbs told him to shoot Lawrence first.
Parks-Burns and Lawrence got into a tussle, the gun fell, and Tibbs shot
at Lawrence. Thomas also identified
Parks-Burns and Tibbs in a field showup that night.
A
gang expert testified Tibbs was a member of the 18th Street gang, and his
shooting at Lawrence served to further the gang, as indicated by Parks-Burns'
question, "where they're all from," referring to which gang Lawrence
and his companions belonged.
Additionally, Tibbs yelled his gang's name upon firing the gun.
The court denied
Tibbs's new trial motion brought on grounds the court had erroneously declined
to sever his case from Parks-Burns's, and insufficient evidence supported the
attempted murder conviction.
The Second Trial—Murder of Charles Marshall
Coasa
Harvey testified that August 17, 2007, was the eve of what the 18th Street gang
regarded as "hood day," when its members, including Parks-Burns and
Tibbs, got together and reminisced about those who had died, and planned their
next moves. That night, Harvey heard
Parks-Burns and Tibbs discussing a fellow gang member's murder. Tibbs said he would retaliate against the
rival gang for the killing. A few
minutes later, Harvey saw Tibbs using a rag to load bullets for a handgun. Parks-Burns left carrying a sawed-off shotgun
and was accompanied by Tibbs, who carried the handgun. According to Harvey, they said they were
going to "put in work" for the gang.
Harvey interpreted that to mean they were going to shoot and try to kill
someone. After Harvey saw them drive
away, he ran to a spot from which he could see an apartment complex called the
Dorjils, which was considered a rival gang's territory. Harvey saw Parks-Burns and Tibbs climbing a
gate, entering, and running into the Dorjils.
Harvey next heard gunshots and saw Parks-Burns and Tibbs leaving the
Dorjils the same way they had entered.
Harvey next ran to Tibbs's house.
Parks-Burns and Tibbs arrived there and they were excited, saying they
had shot at individuals at the Dorjils.
Because he did
not hear any police cars or helicopters, Tibbs concluded nobody had been
shot. Therefore, he sent Parks-Burns to
retrieve their hidden guns, and they later discussed how many bullets
remained. They both returned to the
Dorjils. Harvey positioned himself at
the same spot as before, and saw both Parks-Burns and Tibbs fire shots into a
group of people. Parks-Burns and Tibbs
ran from the scene. Harvey denied owning
a shotgun or ever holding or shooting one.
San Bernardino
Police City Detective Pete Higgins investigated the crime scene and found
shotgun waddings, but found no evidence that a handgun had been fired there
that night. The jury was informed
through a stipulation that Charles Marshall died that night from a gunshot
wound to the chest.
Justin Monroe
testified that in August 2007, he asked Tibbs for help in buying
marijuana. During that conversation,
Tibbs showed him a handgun and asked if he knew anyone who wanted to buy
it. Monroe asked Tibbs if the gun had
been used to shoot anyone, and Tibbs said someone had been killed with it. Thereafter, Monroe met Tibbs while in jail on
unrelated charges, and Tibbs, thinking Monroe would be released that day, asked
him to locate a handgun and a shotgun before police found them. Tibbs said the guns were being held by an
acquaintance of his who lived near Tibbs's house, and whose whereabouts were
unknown. Tibbs surmised his acquaintance
was passing information to police, and insinuated that, as a result, he wanted
Monroe and Monroe's friend to harm the acquaintance. In exchange for them doing so, Tibbs offered
Monroe 10 pounds of marijuana, and the guns for Monroe's friend. Tibbs admitted committing the attempted
murder with Parks-Burns, and using the same gun in both that crime and the
murder.
San Bernardino
City Police Officer Travis Walker testified as a gang expert in response to a
hypothetical by the prosecutor:
"[A]ny time you have a gang member that is killed by a rival
gang—and it was widely publicized who the killer of Edward Griffin was—we
expect and anticipate retaliation from the victim gang on the gang that
committed that act. . . . So it is completely done for the benefit not
only of the individual gang member's status or an attempt to elevate their
status, but it's done to benefit the gang as a whole in retaliation for the
death of their member. The prosecutor
next asked Officer Walker a different hypothetical about two gang members, one
of whom was "well established and one who was trying to become
established." Officer Walker
responded: "[O]ne of the methods of
getting into a criminal street gang is having to commit or put in work for that
gang. The act of going out and shooting
a rival gang member or shooting at a rival gang is a significant act of putting
in work for a particular street gang.
And that would elevate a person's status within their gang and their
reputation on the street for committing that act."
Willie Fannin,
Harvey's stepfather, testified that Harvey's mother took a sawed-off shotgun to
Fannin's home in August 2007, approximately two weeks before Marshall's
murder. Fannin took it outside and told
Harvey's mother to have Harvey retrieve it, and it was removed the next
day. Fannin presumed Harvey took it.
DISCUSSION
I
After the court
had granted the People's motion to consolidate the cases against Parks-Burns
and Tibbs before the first trial, Parks-Burns's counsel moved to sever them,
arguing that Parks-Burns had already pleaded guilty to the attempted murder
charge: "My objection is, in fact,
that this would deny [Parks-Burns] due process of law and he wouldn't be able
to have a fair [trial]; essentially based on the fact that I believe the People
are seeking joint motive. Motive is not
an element of the crime. In fact, if the
jury hears that he was involved in another shooting with the same defendant a
couple weeks after this particular incident, they're likely not to focus on the
relevant testimony in the [murder charge].
And in fact rather be skewed by the fact that we have two shootings
within a month of each other. [¶] But there is not . . . a sufficient showing
that there is a certain degree of similarities by which any prejudicial outcome
would be overcome." Tibbs joined in
the motion to sever.
The court denied
the motion, finding no showing of undue prejudice. It reasoned that common evidence relevant to
both crimes included their gang involvement, the weapons the defendants had
used, and the fact that the incidents occurred in the same general area. The court concluded that such evidence could
"show common plan, scheme, or design.
In addition to that [there] also would be sufficient similarity for
purposes of establishing the identity of the victim that was involved."
Tibbs contends
the trial court violated his constitutional right to a fair trial by denying
his motion to sever his trial from Parks-Burns's. Specifically, he maintains the court
prejudicially admitted evidence about the Marshall murder during his trial for
the attempted murder of Lawrence. Tibbs
also claims the jury likely would interpret the murder and attempted murder
cases as a continuation of his ongoing criminal behavior; Justin Monroe's
testimony placed greater culpability on him than on Parks-Burns; and the case
was close as indicated by the jury deadlock on the murder charge.
Under section
954, "[a]n accusatory pleading may charge two or more different offenses
connected together in their commission, . . . or two or more different offenses
of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is
triable, in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the
accusatory pleading be tried separately or divided into two or more groups and
each of said groups tried separately."
"For
purposes of joinder, offenses are deemed to have been 'connected together in
their commission' where there was a common element of substantial importance in
their commission, even though the offenses charged did not relate to the same
transaction and were committed at different times and places and against
different victims. [Citations.] Similarly, within the meaning of section 954,
offenses are 'of the same class' if they possess common characteristics or
attributes." (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722;
276.) The language "connected
together in their commission" in section 954 reflects legislative intent
for a broad test for joinder of offenses.
(Alcala v. Superior Court
(2008) 43 Cal.4th 1205, 1217-1218.)
In
addressed the legal principles relevant to severance of properly joined
criminal charges. (Id. at pp. 771-772.) In this
context, the prosecution is entitled to join offenses, and the burden is on the
party seeking severance to clearly establish that there is substantial danger
of prejudice requiring that the charges be separately tried. (Id.
at p. 773.) To establish error in a
trial court's ruling declining to sever properly joined charges, the defendant
must make a clear showing of prejudice to establish that the trial court abused
its discretion, that is, that its ruling falls outside the bounds of
reason. (Id. at p. 774.) "
' "[A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to
exclude other-crimes evidence in a severed trial." ' " (Ibid.) In particular, the party must deal with the
countervailing considerations of conservation of judicial resources and public
funds, considerations that often weigh strongly against severance of properly
joined charges. (Ibid.)
In determining
whether the trial court abused its discretion under section 954, we consider
the record before the trial court when it made its ruling (Soper, supra, 45 Cal.4th
at p. 774), and undertake the following analysis as outlined in
"First, we consider the cross-admissibility of the evidence in
hypothetical separate trials.
[Citation.] If the evidence
underlying the charges in question would be cross-admissible, that factor alone
is normally sufficient to dispel any suggestion of prejudice and to justify a
trial court's refusal to sever properly joined charges. [Citation.]
Moreover, even if the evidence underlying these charges would
separate trials, that determination would not itself establish prejudice or an
abuse of discretion by the trial court in declining to sever properly joined
charges." (Id. at pp. 774-775.) The
latter rule is codified in section 954.1.
(Id. at p. 775.)
"If we
determine that evidence underlying properly joined charges would
consider 'whether the benefits of joinder were sufficiently substantial to
outweigh the possible "spill-over" effect of the
"other-crimes" evidence on the jury in its consideration of the
evidence of defendant's guilt of each set of offenses.' " [Citations.]
In making that assessment, we
consider three additional factors, any of which—combined with our earlier
determination of absence of cross-admissibility—might establish an abuse of the
trial court's discretion: (1) whether
some of the charges are particularly likely to inflame the jury against the
defendant; (2) whether a weak case has been joined with a strong case or
another weak case so that the totality of the evidence may alter the outcome as
to some or all of the charges; or (3) whether one of the charges (but not
another) is a capital offense, or the joinder of the charges converts the
matter into a capital case.
[Citations.] We then balance the
potential for prejudice to the defendant from a joint trial against the
countervailing benefits to the state."
(Soper, supra, 45 Cal.4th at p. 775.)
Here, we agree
with the trial court's assessment of the issue of cross-admissibility. The attempted murder and the murder crimes
occurred within approximately three weeks of each other, and both crimes were
gang related. Both crimes show the
defendants' common intent to gain respect for themselves and their gang. The court also noted the crimes occurred in
the same general area. Further,
according to Monroe's testimony, Tibbs and Parks-Burns used the same weapons in
both crimes. Tibbs concedes in his
opening brief that the attempted murder charge was gang related.
Tibbs can
establish error requiring severance of the charges only on "a '
that the trial court abused its
discretion' " (Alcala v.
Superior Court, supra, 43 Cal.4th
at p. 1220), meaning that its ruling falls outside the bounds of reason in
denying the severance motion. (
439.) Tibbs has failed to convince us
that the court's ruling meets this stringent standard. The trial court carefully analyzed the issue
of severance in light of the relevant law, and we find no basis for considering
its ruling as whimsical. "Having
concluded the trial court correctly determined the issue of
cross-admissibility, we need not analyze the other factors described
above." (People v. Bradford (1997) 15 Cal.4th 1229, 1317.)
Although we find
the trial court's denial of Tibbs's severance motion proper at the time it was
made, "[b]ecause the issue is raised on appeal following trial [and Tibbs
asserts he was denied a fair trial by the denial of his severance motion], we
must also consider whether 'despite the correctness of the trial court's
ruling, a gross unfairness has occurred from the joinder such as to deprive the
defendant of a fair trial or due process of law.' " (People
v. Sandoval (1992) 4 Cal.4th 155, 174.)
On the issue of prejudice, Tibbs argues,
"[T]he inflammatory nature of the 'gang-related' murder, in addition to
the strength of the evidence in support of the 'gang-related' attempted murder,
was likely prejudicial to the determination of guilt on the attempted murder
charge." But Tibbs's concession
that the gang-related evidence was cross-admissible undermines his prejudice
claim. " 'One asserting prejudice
has the burden of proving it; a bald assertion of prejudice is not
sufficient.' [Citation.] We conclude, therefore, that defendant has
failed to show that denial of severance deprived him of a fair
trial." (Sandoval, at p. 174.)
II.
Tibbs contends
his due process rights under the Fourteenth Amendment of the federal
Constitution were denied because insufficient evidence supported his conviction
for attempted, willful, deliberate, premeditated murder.
"
'Deliberation' refers to careful weighing of considerations in forming a course
of action; 'premeditation' means thought over in advance. [Citations.]
'The process of premeditation and deliberation does not require any extended
period of time. "The true test is
not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly. . . . "
' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080; see also
495.)
Faced with a
challenge to the evidence of deliberation and premeditation on appeal, the test
is whether a rational juror could, on the evidence presented, find the
essential elements of premeditation and deliberation beyond a reasonable
doubt. (People v. Stewart, supra,
33 Cal.4th at p. 495, citing People v.
Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez),
overruled on other grounds as stated in People
v. Doolin (2009) 45 Cal.4th 390.) To
undertake this analysis, we consider all evidence and logical inferences
relevant to the question, including general factors of planning activity, and
motive as established by a prior relationship or conduct with the victim. (Sanchez,
1126; People v. Anderson (1968) 70
Cal.2d 15 (Anderson).)
In making our
determination, we focus on the whole record, not isolated bits of
evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We do not reweigh the evidence; the
credibility of witnesses and the weight to be accorded to the evidence are
matters exclusively within the province of the trier of fact. (People
v. Stewart (2000) 77 Cal.App.4th 785, 790.)
We will not reverse unless it clearly appears that on no hypothesis
whatever is there sufficient substantial evidence to support the jury's
verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Stewart, at p. 790.)
Tibbs relies
upon People v. Anderson, supra,
70 Cal.2d 15, in which the California Supreme Court identified the types of
evidence that are indicative of premeditation and deliberation.
guidelines "are 'descriptive, not normative,' and reflect the court's
attempt 'to do no more than catalog common factors that had occurred in prior
cases.' [Citation.] In developing these guidelines, the court did
not redefine the requirements for proving premeditation and deliberation." (People
v. Young (2005) 34 Cal.4th 1149, 1183.)
Instead, Anderson's "goal
. . . was to aid reviewing courts in assessing whether the evidence is
supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse." (People v. Perez, supra, 2
Cal.4th at p. 1125.) "The
categories of evidence identified in Anderson
. . . do not represent an exhaustive list of evidence that could sustain a
finding of premeditation and deliberation, and the reviewing court need not
accord them any particular weight."
(People v. Young, at p. 1183.)
Unquestionably,
the evidence on this question is circumstantial for the most part and rests on
inferences. In such cases, we must be
careful not to substitute our judgment for the jury's; "[e]ven if we might
have made contrary factual findings or drawn different inferences, we are not
permitted to reverse the judgment if the circumstances reasonably justify those
found by the jury." (
Here, we
conclude that a trier of fact could reasonably infer, based on all of the
evidence presented, that Tibbs deliberated and premeditated before attempting
to murder Lawrence. That is, he acted as
"a result of 'preexisting reflection rather than unconsidered or rash impulse.'
" (Sanchez, supra, 12
Cal.4th at p. 33.) We summarize the
relevant facts, and rational inferences therefrom, supporting the jury's
findings: Tibbs and Lawrence had a
dispute because Tibbs dated Lawrence's sister, who was a minor. Approximately two weeks before the attempted
murder, Tibbs had displayed a gun while confronting Lawrence. The night of the attempted murder, Tibbs and
Parks-Burns had twice passed the area where Lawrence was located before deciding
to confront Lawrence and his party. At
the start of the incident, when Parks-Burns aimed his gun at someone else
first, Tibbs instructed him to aim at Lawrence instead. When the gun fell from Parks-Burns's hands,
Tibbs got it and fired it at Lawrence.
At several junctures during that chain of events, Tibbs had an
opportunities to reflect and deliberate, and each time he elected to proceed
with targeting Lawrence. The logical
conclusion is that Tibbs intended to shoot at Lawrence, and thus his attempted
murder was deliberate, willful and premeditated.
Tibbs argues,
"[T]he shooting of Lawrence was more consistent with a random, spontaneous
act than anything else. The timing of
the shooting is instructive. [Tibbs]
only picked up the gun after [Parks-Burns] dropped it. If [Tibbs] had the requisite 'specific
intent' to kill, he, not [Parks-Burns], would have approached Lawrence in front
of his house. However, [Tibbs] shot
Lawrence after [Parks-Burns's] unsuccessful struggle." Tibbs, in effect, asks us to reweigh the
evidence, but we may not do so.
III.
Tibbs contends
the court's failure to instruct the jury on premeditation, deliberation, and
willfulness in specific reference to attempted murder requires reversal of his
conviction.
The court
instructed the jury regarding the definitions of the terms
"willfully," "deliberately" and "premeditation"
with CALCRIM No. 521, in connection with the murder count: "A defendant is guilty of first degree
murder if the People have proved that he acted willfully, deliberately, and
with premeditation. The defendant acted
against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that
caused death. [¶] The length of time the person spends
considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount
of time required for deliberation and premeditation may vary from person to
person and according to the circumstances.
A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly.
The test is the extent of the reflection. The length of time alone is not
determinative."
The court did
not instruct on premeditation regarding the attempted murder charge with
CALCRIM No. 601, but that instruction defines the terms "willfully,"
"deliberated" and "premeditation" in identical terms as
they are defined in CALCRIM No. 521.
Jurors are presumed able to understand and correlate instructions and
are further presumed to have followed the court's instructions. (People
v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
Here, we presume the jury applied the definitions of the terms from the
instruction on first degree murder (CALCRIM No. 521), to this attempted murder
count, under the reasonable assumption the definitions would be no different. And in fact the terms are defined the same in
CALCRIM No. 601.
We note that the
presumption regarding the jury's use of the instructions is further confirmed
by the jury's verdict that affirmed the finding of deliberation: "We the
jury in the above-entitled action having found the defendant, Todd Jose Tibbs,
guilty of the offense of Attempted Murder as charged in Count 2 of the
Complaint[,] we further find the special
allegation that the attempted murder was committed willfully, deliberately and
with premeditation to be: True[.]" (Italics added.) Therefore, we can only conclude that the
instructions, taken as a whole, adequately informed the jury that the
prosecution was required to prove each element of the charged crime beyond a
reasonable doubt.
title="">[5]
In light of the
abundant evidence set forth above that Tibbs deliberated before committing
attempted murder, and based on the presumption the jury correctly followed the
court's instruction, we conclude any error was harmless under any standard of
review. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 320;
493,523.)
IV.
Tibbs contends
his attempted murder conviction should be reversed because the court
erroneously refused to instruct the jury about the lesser included offense of
attempted voluntary manslaughter. Tibbs
contends sufficient evidence supported the instruction because Lawrence and
Parks-Burns struggled over the gun, and it was only after it fell that Tibbs
picked it up and fired it. Tibbs claims
this evidence "could reasonably be interpreted as a mutual combat
situation wherein [Tibbs] and [Parks-Burns] were not necessarily the
provocateurs as to Lawrence." Tibbs
also notes the case was close, as shown by the jury deadlock on the murder
charge.
In declining to
instruct on voluntary manslaughter, the court ruled: "[M]y recollection of the testimony is
that the altercation did not take place until after the gun was pulled and
pointed and that any fist fight that occurred at that time would not be heat of
passion since the . . . actuating incident was the pulling of the gun and
basically a threat to blow him away or kill him . . . . As such heat of passion, I don't think,
applies."
Even if a
defendant does not request it, a trial court must instruct on lesser included
offenses whenever substantial evidence raises a question that the elements of
the lesser included offense are present.
(People v. Lewis (2001) 25
Cal.4th 610, 645.) Substantial evidence
in this context is evidence from which a jury could conclude that the lesser
offense, but not the greater, was committed.
(People v. Breverman (1998) 19
Cal.4th 142, 162.) Conversely, if there
is no substantial evidence to support the lesser included offense instruction,
the trial court has no duty to instruct on it.
(People v. Cunningham (2001)
25 Cal.4th 926, 1008.)
On
appeal, we review independently the question of whether the trial court failed
to instruct on a lesser included offense.
(People v. Cole (2004) 33
Cal.4th 1158, 1215 (Cole).) Voluntary manslaughter is a lesser included
offense of murder. (People v. Lewis, supra,
25 Cal.4th at p. 645.) One form of
voluntary manslaughter is defined as the unlawful killing of a human being
without malice aforethought "upon a sudden quarrel or heat of passion." (§192, subd. (a).) "The provocation which incites the
defendant to homicidal conduct in the heat of passion must be caused by the
victim [citation], or b[y] conduct reasonably believed by the defendant to have
been engaged in by the victim. [Citations.] The provocative conduct by the victim may be
physical or verbal, but the conduct must be sufficiently provocative that it
would cause an ordinary person of average disposition to act rashly or without
due deliberation and reflection.
[Citations.] 'Heat of passion
arises when "at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from
judgment." ' " (
59.) "Adequate provocation and heat
of passion must be affirmatively demonstrated." (Id. at
p. 60.)
No evidence
supports giving the voluntary manslaughter
instruction, or Tibbs's claim that Lawrence might have provoked the
confrontation that night, or that Tibbs acted out of heat of passion. First, we note that the antagonism between
Tibbs and Lawrence had started earlier, and had resulted in a gun confrontation
between the two approximately two weeks before the attempted murder. But even if we focus only on the night of the
crime, the evidence shows that Tibbs passed the area twice before deciding to
approach Lawrence and provoke him by asking him about his gang membership. When Parks-Burns aimed his gun at someone
else, Tibbs instructed Parks-Burns to shoot Lawrence instead. As a result of Lawrence's struggle with
Parks-Burns, the gun fell, and Tibbs picked it up, and elected to shoot at
Lawrence. On this record, there was no
basis for an attempted voluntary manslaughter instruction.
I.
Parks-Burns
contends the court's failure to instruct the jury regarding accomplice
testimony deprived him of his rights to due process and a jury trial under the
Sixth and Fourteenth Amendments of the federal
Constitution. He contends that
Harvey's testimony was prejudicial because it was uncorroborated. Parks-Burns moreover argues Harvey's own
involvement in the crime is shown by his inconsistent testimony about how the
weapons were delivered to Parks-Burns and Tibbs, thus evincing Harvey's
consciousness of guilt. Parks-Burns
adds, "Harvey's own step-father testified that Harvey was in possession of
the sawed-off shotgun a few days before the homicide occurred, and Harvey
admitted that he was present both when the offense was planned and when it was
carried out." Parks-Burns sums
up: "[A] jury could have reasonably
concluded that not only did Harvey affirmatively assist the homicide by
furnishing the murder weapons . . . but that he was physically present as part
of a criminal compact, and encouraged and enabled the homicide by providing
'moral support' and protecting their backs and route of escape, but also by
acting as a lookout."
We outlined the
law regarding accomplice testimony in People
v. Verlinde (2002) 100 Cal.App.4th
1146. A conviction cannot stand
on the uncorroborated testimony of an accomplice (see § 1111), and a jury must
be instructed to view with caution the testimony of an accomplice presented by
the prosecution. (See
635.) Trial courts have a sua sponte
duty to give accomplice testimony instructions.
(People v. Gordon (1973) 10
Cal.3d 460, 468-469, disapproved on other grounds in People v. Ward (2005) 36 Cal.4th 186, 212.)
Accomplice
liability is " 'derivative,' " resulting from an act by the
perpetrator to which the accomplice contributed. (People
v. Prettyman (1996) 14 Cal.4th 248, 259.)
Put another way, " '[a]n accomplice' is one who knowingly,
voluntarily, and with common intent with the principal offender unites in the
commission of the crime." (People v.
Jones (1967) 254 Cal.App.2d 200, 213.)
For purposes of determining whether accomplice witness instructions are
necessary, an accomplice is defined as "one who is liable to prosecution
for the identical offense charged against the defendant on trial in the cause
in which the testimony of the accomplice is given." (§ 1111; see also CALCRIM No 334.)
"In order
to be an accomplice, the witness must be chargeable with the crime as a
principal (§ 31) and not merely as an accessory after the fact (§§ 32,
33)." (People v. Sully (1991) 53 Cal.3d 1195, 1227.) Aiders and abettors are included in the
category of principals. (§ 31.) An aider and abettor is one who aids,
promotes, encourages or instigates a crime with knowledge of the unlawful
purpose of the perpetrator and the intent to assist in the commission of the
crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Since aider and abettor liability is based on
principles of vicarious liability, an aider and abettor is liable not only for
the offense he intended to facilitate or encourage but also for "any
reasonably foreseeable offense committed as a consequence by the
perpetrator." (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
A witness's
status as an accomplice "is a question for the jury if there is a genuine
evidentiary dispute [on knowledge and intent] and if 'the jury could reasonably
[find] from the evidence' that the witness is an accomplice." (People
v. Howard (1992) 1 Cal.4th 1132, 1174, quoting People v. Hoover (1974) 12 Cal.3d 875, 880.) In such cases, the defendant is entitled to
instructions on accomplice testimony, and the failure to instruct may be
reversible error. (People v. Fauber (1992) 2 Cal.4th 792, 833-834.) When the facts are
not in dispute, the issue is a legal one to be determined by the trial
court. (People v. Daniels (1991) 52 Cal.3d 815, 867.) " 'Where such witness is an accomplice
as a matter of law, the court should so charge.
. . . Conversely, where, as a
matter of law, the witness is not an accomplice, the court does not err in
refusing to charge that he is or in refusing to submit the issue to the jury.'
" (People v. Hoover, at p. 880, quoting People v. Jones (1964) 228 Cal.App.2d 74, 94-95.)
"Any issues
of fact determinative of the witness's factual guilt of the offense must be
submitted to the jury. Only when such
facts are clear and undisputed may the court determine that the witness is or
is not an accomplice as a matter of law."
(People v. Rodriguez (1986) 42
Cal.3d 730, 759.)
During the first
trial, Tibbs's counsel argued for an accomplice instruction: "I was requesting the accomplice
instructions, maybe not accomplice as a matter of law, but certainly allowing
the jury to decide whether Coasa Harvey is an accomplice and meets
corroboration. He testified that he was
present and the crime was discussed before it took place; that he saw the
delivery of the guns; that he saw the loading of the guns; that he saw the
first attempt; that he then met with the assailants a second time, discussed it
some more, watched a second time.
[¶] If somebody had been watching
Coasa Harvey and that had occurred, he'd be charged as an accomplice. He'd be—the People would be arguing that he
was a lookout. I've certainly seen many
cases where someone's charged as a lookout on less evidence. So my position is there was enough evidence
to charge [Harvey;] unfortunately he's the star witness for the prosecution so
he wasn't charged[d], but I believe his testimony meets corroboration . . .
." Parks-Burns's counsel joined in
requesting an accomplice instruction.
The court declined
to give the instruction because no evidence supported it: "My analysis of the evidence is that
there is no factual support for an accomplice testimony at this point. No facts have been developed that indicates
Mr. Harvey in any way assisted or aided in the commission of the alleged
offense." The court cautioned
defense counsel, "You cannot argue that [Harvey] needs corroboration. One witness worthy of belief is sufficient to
prove a fact. You can argue as far as
how much weight they should give to [Harvey's testimony]; that he's speaking on
his own and that . . . nobody else is confirming what he said, things of that
nature, but to argue to the jury they cannot give him [credibility] because he
needs corroboration would be inappropriate."
We conclude that
Fannin's testimony regarding the sawed-off shotgun does not compel the
conclusion that Harvey was an accomplice as a matter of law. To the contrary, that conclusion is too
attenuated because it is not supported by anything more than speculation that
Harvey removed that same sawed-off gun from Fannin's house and provided it to
Parks-Burns, who used it in committing the murder. Moreover, Harvey testified he did not own a
shotgun, and never held or fired one.
Parks-Burns's other claim that Harvey was a lookout likewise fails to
support the assertion Harvey was an accomplice as a matter of law, because the
facts surrounding Harvey's observation of the codefendants' actions was not
undisputed, but rather strongly support the alternative conclusion Harvey was
motivated by nothing more than mere curiosity.
Similarly, Harvey's testimony he overheard the discussions between
Parks-Burns and Tibbs does not, without more, lead to an inference Harvey was
involved in the crime as an accomplice.
In short, the
evidence does not show Harvey was, as a matter of law, an accomplice of
murder. Therefore, the court did not err
in failing to so instruct. An
instruction that a witness is an accomplice as a matter of law "could be
given only if undisputed evidence established the complicity." (People
v. Davis (1954) 43 Cal.2d 661, 672.)
We reject Parks-Burns claims of constitutional error. Generally, "the application of the
ordinary rules of evidence under state law does not violate a criminal
defendant's federal constitutional right to present a defense, because trial
courts retain the intrinsic power under state law to exercise discretion to
control the admission of evidence at trial." (People
v. Abilez (2007) 41 Cal.4th 472, 503.)
II.
The prosecutor
moved in limine to admit evidence regarding Parks-Burns's attempted murder
conviction, arguing: "These two
crimes were committed within a block of each other. They were committed in furtherance of and to
promote the 18th Street Gang. In the
subsequent shooting [']18th Street['] was yelled out. The confrontation was due to statements made
against 18th Street or against gang
members. . . . It was close in time. The same or similar weapon was used in both
shootings. And based on motive and
intent to promote, further or defend their gang, [identification,] and planning
. . . the People should be able to utilize this evidence."
In granting the
motion, the court ruled:
"[A]lthough probably not admissible on the issue of identity
because [this is] not a signature crime, the evidence is admissible on issues
of intent, common design and motive. In
the current case the shots coming from the distance that have been indicated to
the court in our pre-trial conferences do lead to a question of [the] intent of
the shooter and any aider and abettor of the actual shooter. As to the common design issue, what we have
is the second count of the shooting of another person within approximately
three weeks in a location that was approximately one block from the charged
account. Also done for the benefit of a
gang and done by the same two perpetrators.
And also relevant as to the issue of motive which ties back into the
common design and gang issues. I do
believe that the incident is relevant in the case. [¶]
Under [Evidence Code, section 352,] balancing probative value versus
prejudicial effect, my first comment is both incidents were presented in the
first trial and resulted in a conviction on Count 2 and a hung jury on Count
1. So [it] can't really be argued that
the evidence of Count 2 is such that [it] would automatically result in the
jury convicting on Count 1. It didn't
happen in the first trial. [¶] Beyond that, however, here we have a
situation in this uncharged event that both defendants have had their guilt as
to the uncharged count established either by jury verdict or juvenile
adjudication. The jury therefore would
not be inclined to convict on the charged count in order to punish either of
the defendants for the conduct in the uncharged incident. [¶]
Also, the fact that there has been adjudication on both defendants as to
count 2 means that that evidence can be put on without an undue consumption of
time. The jury will not be confused as
to the issues because they will not be required to determine whether or not
either of the defendants committed the uncharged offense. [¶]
The court finds the probative value does outweigh the prejudicial effect
and will allow evidence on that."
Accordingly,
Lawrence testified that Parks-Burns and Tibbs attempted to shoot him in front
of his residence on September 7, 2007.
Parks-Burns
contends the trial court abused its discretion by admitting testimony regarding
his attempted murder conviction that was separately adjudicated, arguing,
"In this case, the prosecution used irrefutable proof that [he] had used
violence in a gang context as a proxy for solid credible evidence of the
charged offense, and managed to persuade jurors that they need not be unduly
concerned about [his] guilt or innocence of the specific charged offense." He further argues admission of the testimony
violated the First Amendment of the federal Constitution because he was put on
trial for his personal association with gang members, and his
punished based on his "bad character."
Evidence of a
crime committed by the defendant that is not charged in the current case is not
admissible to show criminal propensity, but it may be admitted to show some
other material fact, such as intent. (
371.) To be admissible, there must be
some degree of similarity between the charged crime and the uncharged crime,
and the least degree of similarity is needed when the evidence is offered to
prove intent. (Ibid.) The conduct during
the current crime and the uncharged crime must be sufficiently similar to
support an inference that the defendant probably harbored the same intent in
each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute
on other grounds, as stated in People v.
Britt (2002) 104 Cal.App.4th 500, 505.)
We review the trial court's ruling on these issues for abuse of
discretion. (People v. Jones, at p. 371.)
Therefore, we do not reverse the conviction unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice. (People
v. Foster (2010) 50 Cal.4th 1301, 1328.)
Here, the
testimony regarding the attempted murder was admissible on the issue of
Parks-Burns's intent to further the 18th Street gang. As noted, at the end of the attempted murder
incident, he shouted out the name of the gang.
In addition, the gang expert testified that both crimes were committed
to further the status of the two codefendants within that gang, and the status
of the gang as well. The crimes occurred
within the same geographic area, and within weeks of each other. There was testimony the same weapons were
used in both crimes.
Parks-Burns
contends the court abused its discretion in not finding the evidence unduly
prejudicial. We disagree. The record shows the court carefully
exercised its discretion in applying the relevant criteria to evaluate
prejudice set forth in Evidence Code section 352. We again reject Parks-Burns claims of
constitutional error in light of the trial court's intrinsic power under state
law to exercise discretion to control the admission of evidence at trial. (People
v. Abilez, supra, 41 Cal.4th at
p. 503.)
III.
A.
Parks-Burns
contends the court erroneously sentenced him to 50 years to life instead of 9
years, because no physical evidence was recovered from the crime scene
regarding use of a shotgun, notwithstanding Harvey's testimony Parks-Burns had
used one in committing the crime.
Moreover, the prosecutor conceded during closing arguments that
Parks-Burns did not kill Marshall, but rather Tibbs did, as shown by the fact
only one bullet, from a handgun, caused the death.
was punishing him for testifying instead of accepting the plea bargain. Referring to the disparate punishment he and
Tibbs received for the murder conviction, Parks-Burns states that he
"stands convicted of first degree murder and faces a term of [50] years to
life imprisonment, while the actual killer, Mr. Tibbs, has been convicted of
only voluntary manslaughter, and faces a mere [6-year] sentence, to be served
fully concurrently with his prior conviction for attempted murder, in effect no
penalty at all. [¶] It is evident that Mr. Parks-Burns is being
punished by the Riverside County District Attorney's office and the California
State judicial system for refusing the offer of a plea bargain, made during the
midst of trial."
Parks-Burns
relies on People v. Superior Court
(Feldmann) (1976) 59 Cal.App.3d 270—a case involving the court's power to
approve or disapprove plea bargains and provide indicated sentences—in which
the court stated, "A court may not offer any inducement in return for a
plea of guilty or nolo contendere. It
may not treat a defendant more leniently because he foregoes his right to trial
or more harshly because he exercises that right." (Id.
at p. 276.)
We conclude
there is no evidentiary support for Parks-Burns's contention he is being
punished for going to trial instead of accepting a plea bargain. Rather, having been convicted of first degree
murder that he committed for the benefit of, or in association with a criminal
street gang under section 186.22, and the jury having found true a section 12022.53
firearm enhancement for which a 25-year-to-life sentence is mandatory, his
sentence was dictated by statute regarding convictions for multiple felonies
and consecutive terms, which the court correctly applied. (§§ 669, 1170.1, subd. (a).)
B.
Parks-Burns
alternatively contends his sentence was cruel and unusual punishment, noting he
was 16 years old when he committed the crime.
A sentence is
cruel or unusual under California law if it is so disproportionate to the crime
as to shock the conscience and offend fundamental
notions of dignity. (
221, 230.) Similarly, a sentence
constitutes cruel and unusual punishment under the Eighth Amendment if it is
grossly disproportionate to the severity of the crime. (Ewing
v. California (2003) 538 U.S. 11, 20; Rummel
v. Estelle (1980) 445 U.S. 263, 271.)
Under both standards, the court examines the nature of the offense and
the defendant, the punishment for more serious offenses within the
jurisdiction, and the punishment for similar offenses in other
jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, at pp. 425, 431, 436.)
Any one of these three factors can be sufficient to demonstrate that a
particular punishment is cruel and unusual.
(People v. Dillon (1983) 34
Cal.3d 441, 487, fn. 38.)
Parks-Burns
relies on the United States Supreme
Court's decision in Graham v. Florida (2010)
130 S.Ct. 2011, 2023 (Graham), which held
that a juvenile's sentence of life without the possibility of parole was
unconstitutional. After the parties had
submitted briefing in this case, the United States Supreme Court decided
2469 (Miller), which held that, in
homicide cases, the prohibition of cruel and unusual punishment set forth in
the Eighth Amendment to the federal Constitution prohibits the imposition of a
mandatory sentence of life without the possibility of parole on a juvenile
offender. (Miller, at p. 2469.) The
cases involving juvenile offenders, a sentencer is required "to take into
account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison." (Id.
at p. 2469, fn. omitted.)
The
juvenile precludes consideration of his chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking
into account the family and home environment that surrounds him—and from which
he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct and the way
familial and peer pressures may have affected him. Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys." (Miller, supra, 132 S.Ct.
at p. 2468.)
However, the
homicide cases, it was "not foreclos[ing]" the ability of a sentencer
to impose "this harshest possible penalty" of life without the
possibility of parole on " 'the rare juvenile offender whose crime
reflects irreparable corruption.' "
(Miller, supra, 132 S.Ct. at p. 2469, quoting Roper v. Simmons (2005) 543 U.S. 551, 573.) On August 16, 2012, the California Supreme
Court concluded that Graham,
receive a term-of-years sentence that results in the functional equivalent of a
life sentence without the possibility of parole, and stated, "We leave Miller's
application in the homicide context to a case that poses the issue." (People
v. Caballero (2012) 55 Cal.4th 262, 268, fn. 4.)
Here, the
probation report noted Parks-Burns's crime involved "great violence, great
bodily harm, threat of great bodily harm, and other acts disclosing a high
degree of cruelty, viciousness and callousness." It also stated, "The manner in which the
crime was carried out indicates planning, sophistication or
professionalism." We note that the
probation officer's assessment is supported by the fact that approximately
three weeks before Parks-Burns's involvement in Marshall's murder, he had used
a firearm in the attempted murder of Lawrence.
This sequence of events indicates Parks-Burns was not deterred from
violent conduct after he failed to shoot Lawrence; instead, he elected to
associate with the same gang member, Tibbs, and again used a gun in the
commission of the murder.
Successful
challenges to sentences on the grounds of cruel and unusual punishment are
rare. (In re Nuñez (2009) 173 Cal.App.4th 709, 735; Rummel v. Estelle, supra,
445 U.S. at p. 272.) Appellant's
sentence compares favorably with those in other cases rejecting cruel and
unusual punishment claims involving serious crimes committed by young
defendants with limited prior criminal records.
(See, e.g., People v. Murray
(2012) 203 Cal.App.4th 277, 282-285 [upholding LWOP sentence for 17 year old
convicted of two counts of first degree murder]; People v. Em (2009) 171 Cal.App.4th 964, 972-977 [upholding
sentence of 50 years to life for 15-year-old gang member who committed murder
during a robbery and whose prior record was not extensive];
Cal.App.4th 10, 14 [15-year-old's sentence of two consecutive terms of 25 years
to life for two special circumstance murders did not violate state or federal
Constitutions]; People v. Villegas
(2001) 92 Cal.App.4th 1217, 1230-1231 [upholding sentence of 40 years to life
for 17-year-old gang member who committed attempted murder with a firearm];
1, 17 [upholding sentence of 50 years to life for 14-year-old gang member who
committed murder].) This is not one of the
rare cases in which the sentence imposed should be reduced as cruel and
unusual.
IV.
Parks-Burns
contends no substantial evidence supported the award of direct victim
restitution.
The California
Constitution requires that restitution be ordered in every criminal action in
which the victim suffers a loss, absent extraordinary circumstances. (Cal. Const., art. I, § 28.) As this constitutional provision is not
self-executing, the Legislature has enacted implementing legislation. (People
v. Giordano (2007) 42 Cal.4th 644, 652.)
Section 1202.4 authorizes restitution payments to victims and the
imposition of restitution fines, which support the Victim Restitution
Fund. (§ 1202.4, subds. (e), (f).) Under Government Code section 13957, the
California Victim Compensation and Government Claims Board may direct the
Victim Compensation Fund to compensate victims for enumerated losses due to
crime, including up to $7,500 for a funeral.
(Gov. Code, § 13957, subd. (a)(9)(B).)
Pertinent here
are the provisions of section 1202.4 regarding the amount of victim
restitution. Subdivision (f)
provides: "[I]n every case in which
a victim has suffered economic loss as a result of the defendant's conduct, the
court shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained
at the time of sentencing, the restitution order shall include a provision that
the amount shall be determined at the direction of the court." Subdivision (f)(1) further provides that
"[t]he defendant has the right to a hearing before a judge to dispute the
determination of the amount of restitution."
Also pertinent
are the provisions of section 1202.4 regarding the Victim Restitution Fund's
entitlement to reimbursement from the defendant. Subdivision (f)(3) authorizes the trial court
to order the defendant to pay victim restitution directly to the Victim Restitution
Fund, to the extent it disbursed funds on behalf of the victim. On this matter, subdivision (f)(4)(B)
provides: "The amount of assistance
provided by the Restitution Fund shall be established by copies of bills
submitted to the California Victim Compensation and Government Claims Board
reflecting the amount paid by the board and whether the services for which
payment was made were for . . . funeral or burial expenses . . . ."
Here, the
probation office recommended that Parks-Burns pay $7,500 to the Victim's
Compensation Board under section 1202.4, subdivision (f)(2). At sentencing, the court adopted that
recommendation. Defense counsel stated,
"With respect to the direct victim restitution which is proposed to be
assessed at [$7,500], I'm just not sure what that's based upon. I'm not saying—." At that point, the prosecutor clarified the
restitution sought "is the maximum amount that the state Victim Compensation
Board can pay for funeral and burial expenses.
Most likely the funeral and burial expenses were over [that amount], but
since [it is the maximum], that's the most that the state can pay. [¶] At
this moment I do have the victim advocate calling our restitution specialist to
insure [sic] that there's no other
restitution that was paid out. If there
wasn't [sic], then we will be
submitting." The court ruled,
"[$7,500] is the figure I've seen in other cases for that burial
expenses." The court asked if
defense counsel had any other questions, and he replied, "No,
submit."
In
1037, 1074-1075, the defendant challenged a victim restitution order on the
ground that the victim's loss "was not shown by documentation or sworn
testimony." In holding that the
defendant had not preserved the contention for appeal, our Supreme Court
stated: "[B]y his failure to object, defendant forfeited any claim that
the order was merely unwarranted by the evidence, as distinct from being
unauthorized by statute. [Citation.] As the order for restitution was within the
sentencing court's statutory authority, and defendant neither raised an
objection to the amount of the order nor requested a hearing to determine it
[citation], we do not decide whether the court abused its discretion in
determining the amount." (
are presented here.
DISPOSITION
The judgments are affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] All statutory
references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Harvey testified he
was a former gang member and a confidential police informant. He previously was incarcerated for
residential burglary, possession of drugs for sales, and possession of stolen
property. He stated he had testified in
other murder cases in exchange for reduced charges. He also had written the police and the
district attorney seeking benefit for his testimony in this case, but the
prosecutor had not promised him leniency this time.
