People v. Garcia ( 2016 )

Filed 11/23/16 (opn. on transfer from Supreme Court)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059452
v. (Super.Ct.No. INF1100102)
ANDREW EDWARD GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed as modified, with directions.
Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams
and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant is serving 35 years to life after a jury convicted him as an adult of
attempted murder and other charges for robbing and shooting a woman in the face when
he was 15 years old. In this appeal, defendant argues, the People concede, and we agree,
that a three-year enhancement for great bodily harm under Penal Code section 12022.71
is unauthorized and should be stayed. This reduces his sentence to 32 years to life.
Defendant also contends his overall sentence constitutes cruel and unusual punishment
because the sentencing court did not comply with the requirements in Miller v. Alabama
(2012) 567 U.S. ____ [132 S. Ct. 2455] (Miller) and People v. Caballero (2012) 55
Cal. 4th 262 (Caballero) that it consider his youth and consequent reduced culpability and
impose a sentence reflecting these considerations. While we recognize that
considerations of defendant‟s youth did not, and by statute could not, play a major part in
determining his sentence, the sentence passes constitutional muster because he “shall be
eligible for release on parole by the board during his or her 25th year of incarceration at a
youth offender parole hearing” pursuant to section 3051. We affirm, with directions that
the trial court determine whether defendant was afforded an adequate opportunity to
make a record that complies with the requirements set forth in People v. Franklin (2016)
63 Cal. 4th 261, 283-284.
FACTS AND PROCEDURE
At about 9:00 p.m. on January 27, 2011, Maria Mendiola went to one of the hair
salons she owned, and at which she cut hair, to pick up the mail after closing. She saw a
1 All section references are to the Penal Code unless otherwise indicated.
2
male and female, whom she described as “kids” standing outside the salon hugging. Ms.
Mendiola picked up her mail from the mailbox and noticed the two approaching her as
she returned to her parked truck, got in and started the engine. As the two got closer, the
male told Ms. Mendiola that he knew her, or that she knew him.2 As she got into her
truck, the male lifted up his shirt, pulled a gun out of his waistband and pointed it at her.
The male told her to give him her purse. When Ms. Mendiola tried to close the truck
door, the male told the female to hold it open.
The male repeatedly yelled at Ms. Mendiola to give him her money, her cell phone
and the keys to her truck. Defendant said “Get off the truck. Give me the keys. Give me
your purse. Give me the keys. Get off, get off.” Ms. Mendiola testified at trial that “I just
thought he was going to kill me.” When she told the male she did not have any money,
he took her cell phone from her hand and kept yelling at her to get out of the truck. Ms.
Mendiola told the male that she was not going give him anything. He said, “I‟m going to
shoot you. I‟m going to shoot you.” Ms. Mendiola said, “Well, shoot me.” The male
then asked the female, “Do I shoot her?” And the female said, “Yes.” The male turned
to Ms. Mendiola and shot her in the face, just as she threw her head back. Ms. Mendioloa
heard the shot as a loud noise. The bullet entered inside her mouth, struck her upper
teeth, went through her cheek and lodged near her upper jaw. She testified at trial that
2 Defendant told the probation officer that he had seen Ms. Mendiola two days
before the offense when he knocked on the window of a business and asked to use the
telephone. Defendant said Ms. Mendiola “yelled at him and said she did not have a
phone and to go away.”
3
the gunshot made a “big noise. But I didn‟t feel like—I didn‟t think he shot me „cause I
was still, like, awake.”
The two youths fled on foot. Ms. Mendiola followed them in her truck for about three
minutes until they ran behind a building. While driving, Ms. Mendiola had been using
her hand to wipe from her mouth what she thought was a large amount of saliva.
However, she stopped when she realized she was bleeding from inside her mouth and all
over her clothes. Ms. Mendiola saw so much of her own blood that she thought she
would pass out. She also felt that she had a broken tooth. Ms. Mendiola stopped a
passing van and told the driver she had been shot. She pointed out the direction in which
the two youths had run and asked the driver to call police. She then drove to meet her
husband, who was supposed to be at the nearby home of an acquaintance. Her husband
arrived about five minutes later. The people at the home called police and an ambulance.
The ambulance took her to the emergency room. Doctors removed fragments of a small-
caliber bullet from her cheek. Ms. Mendiola lost several teeth from her upper jaw. At
the time of trial the pain in her cheek had become a permanent numbness and she was
still experiencing pain in her teeth. She later identified defendant from a series of
photographs as the male who shot her. Defendant‟s fingerprints were found on the
driver‟s side door of Ms. Mendiola‟s truck, just under the mirror.
In a complaint filed February 16, 2011, and an information filed March 15, 2011,
4
the People charged defendant as an adult under Welfare and Institutions Code, section
707, subdivision (d)(2)(B), because he was at least 14 years old and personally used a
firearm during the commission or attempted commission of a felony.
On July 15, 2011, the jury found defendant guilty as charged of attempted first
degree murder (§§ 664 & 187, subd. (a)) and robbery (§ 211). The jury found true
allegations as to the attempted murder that defendant personally and intentionally
discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)) and that he
personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court ordered the
Probation Department to interview defendant and prepare a report for use at sentencing.
In a telephone interview, defendant told the probation officer that he used
marijuana daily, drank alcohol every other week, and occasionally used cocaine and
ecstasy. Defendant‟s parents were divorced when he was eight years old, after which
they provided the defendant with counseling. Defendant did not get along well with his
mother, with whom he initially lived. He described their relationship as “on and off”
because he did not like to follow her rules. Defendant wanted to go to parties but she
would not let him because of his age. Defendant dated adult women, and he was
“embarrassed” that his mother would insist he leave open his bedroom door when he
brought them home. Defendant described his relationship with his father as always good
because his father understood the “boy thing.” However, defendant had to leave his
father‟s home at the request of father‟s previous girlfriend. Defendant then moved in
with his grandmother, but moved back in with his father just prior to his arrest.
5
As to defendant‟s criminal history, he was twice arrested for drug possession and
once returned home by police after he ran away. His single adjudicated offense was for
arson, for lighting a tree on fire at a middle school, for which he received probation. In
addition, since the attempted murder defendant had participated in three fights while in
juvenile hall.
Regarding sentencing, defendant expressed the hope that he would receive a low
sentence, such as ten years, and wished to serve it in a fire camp. He mentioned several
times that he wanted to finish the “dog program” at juvenile hall.
Defendant told the probation officer that “I still see myself not guilty, even though
to everyone else I am guilty.” Defendant denied committing the offense and stated he did
not think he should be in jail. He said that on the night of the offense he went out to eat
with some friends, then went to his father‟s house and then his grandmother‟s house.
Defendant was upset because he could no longer play football. He said he was mad at his
girlfriend because her testimony had caused him to be incarcerated and to “have to deal
with these politics.” Defendant talked about his family and said regarding the victim,
Ms. Mendiola, “I feel like she took me away from my family.” He also stated “I‟m not
mad but I think she should have thought who she was sending to jail for his whole life.”
Defendant expressed reluctance to pay restitution to the victim, saying “I would be
especially mad. I heard that her family is a drug family, so them taking money from my
family, I‟d be more than mad.”
6
On December 23, 2011, the trial court sentenced defendant to 35 years to life as
follows: seven years to life for the attempted murder, plus a consecutive term of 25 years
to life for the intentional discharge of a firearm enhancement, plus a consecutive term of
three years for the great bodily injury enhancement. The court stayed the sentence for
robbery pursuant to section 654.
Before imposing the sentence, the court heard supporting statements from
defendant‟s mother and from two of his freshman-year special education teachers. The
court also heard a request from defense counsel that defendant be sentenced to the
California Youth Authority (CYA) in accordance with the positive Amenability
Determination by the Department of Juvenile Justice. In response to this defense counsel
request, the court cited to Welfare and Institutions Code section 1732, which prohibits
CYA commitments for certain serious crimes where the sentence exceeds 25 years. The
court then commented, “While it would be appropriate and correct for Mr. Garcia to be
housed in an age-appropriate facility, committing him to the juvenile detention does not
appear to be an option that the court has.” In the course of imposing the 35-years-to-life
sentence the court at several points correctly described its lack of statutory authority to
use personal information about defendant to craft the sentence: “[T]he court does not
have much discretion, in all honesty, about how to proceed in this manner,” “The court
has very little leeway in applying those standards,” and “It [the sentence imposed] is
ordered by the Legislature and it‟s an order that I have been sworn to uphold, and I am
therefore upholding it.”
7
This appeal followed.
DISCUSSION
1. The Three-Year Enhancement Under Section 12022.7 Must Be Stayed
Defendant argues the trial court imposed an unauthorized sentence when it
imposed a consecutive three-year enhancement to the attempted murder conviction under
section 12022.7, subdivision (a). The People concede and we agree. “An enhancement
for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be
imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).”
(§ 12022.53, subd. (f).) Because the court also imposed the 25-years-to-life enhancement
under section 12022.53, subdivision (d), for intentionally discharging a firearm with great
bodily injury, the court should have stayed the three-year enhancement for great bodily
injury under section 12022.7. This results in a new sentence of 32 years to life, to which
we will now turn.
2. Defendant’s Non-Life Sentence Is Not Cruel and Unusual—He Has a
Reasonable Chance for Release Well Within His Expected Lifetime
Defendant argues the 32-years-to-life sentence violates his right to be free of cruel
and unusual punishment guaranteed by the Eighth Amendment to the Federal
Constitution [“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”] and Article I, section 17 of the California
Constitution [“Cruel or unusual punishment may not be inflicted or excessive fines
imposed.”].
8
Specifically, defendant argues that both the United States Supreme Court and the
California Supreme Court have in recent years emphasized that juvenile offenders have
special protection under the Eighth Amendment and are “less deserving of the most
severe punishments” (Graham v. Florida (2010) 560 U.S. 48, 68 (Graham)) because they
“„cannot with reliability be classified among the worst offenders.‟ [Citation.]” (Ibid.)
Defendant points to Roper v. Simmons (2005) 543 U.S. 551, 569 (Roper) for its
description of the three main reasons for this special protection and reduced culpability:
(1) lack of maturity; (2) susceptibility to negative influences, including peer pressure; and
(3) the fact that a youth‟s personality and character traits are still forming and are capable
of change for the better. (Id. at pp. 569-570.)
We agree with the People that the cases upon which defendant relies involve
sentences that are far harsher than his 32 years to life. The youthful defendant in Roper
was sentenced to death. In both Graham and Miller the sentence was a life term without
the possibility of parole. In Caballero, the term was 110 years to life, which the court
found to be the functional equivalent of a life sentence without the possibility of parole.
Each of these cases, which held that the challenged sentence was cruel and unusual when
applied to a defendant charged as an adult who committed their crime while a minor, is
relevant to the general discussion of the reasons for treating youthful offenders differently
from adult offenders. However, none compels the result that defendant seeks here—a
reduction of his sentence below the imposed 32 years to life. Here are the reasons why.
9
First, defendant‟s sentence is on its face neither an actual nor an effective life
sentence without the possibility of parole. After 32 years, defendant will still be only
approximately 47 years old, well within his life expectancy. To reiterate, in both Graham
and Miller, the defendant received an actual life sentence without the possibility of
parole. In Caballero, the defendant was sentenced to 110 years to life, by any measure
an effective life sentence without possibility of parole. We cannot stress enough that this
important factual difference renders each of the above cases inapplicable to defendant‟s
sentence. By its terms, defendant‟s sentence will allow him to seek release when he is of
middle age.
Second, even for sentences that are actual or effective life sentences, which
defendant‟s emphatically is not, the recently enacted section 3051 guarantees defendant a
youthful offender parole hearing after 25 years, when a 15-year-old offender would be
approximately 40 years old. Section 3051, subdivision (b)(3), provides that a youth
offender sentenced to a term of 25 years to life, “shall be eligible for release on parole by
the board during his or her 25th year of incarceration at a youth offender parole hearing,”
unless otherwise released or eligible for an earlier parole hearing date under other
provisions. At that time, the Board of Parole Hearings will “provide for a meaningful
opportunity [for the youth offender] to obtain release” and “shall give great weight to the
diminished culpability of juveniles as compared to adults, the hallmark features of youth,
and any subsequent growth and increased maturity of the prisoner in accordance with
relevant case law.” (§§ 3051, subd. (e), and 4801, subd. (c).) Section 3051 specifically
10
and sufficiently addresses these concerns regarding cruel and unusual punishment. This
is because section 3051 has in effect abolished de facto life sentences in California.
Section 3051 universally provides each juvenile offender convicted as an adult with a
mandatory parole eligibility hearing on a legislatively specified schedule, and after no
more than 25 years in prison. When the Legislature enacted section 3051, it followed
precisely the urging of the Caballero court to provide this parole eligibility mechanism.
The Caballero court interpreted Graham to require the trial courts to “impose a time
when the juvenile offender will be able to seek parole from the parole board. The Board
of Parole Hearings will then determine whether the juvenile offender must be released
from prison „based on demonstrated maturity and rehabilitation.‟ [Citation.]”
(Caballero, supra, 55 Cal. 4th at p. 269.) In section 3051, the Legislation has imposed by
statute that time when the juvenile offender may seek release from prison. In a footnote
at the very end of the majority opinion, the Caballero court “urge[d] the Legislature to
enact legislation establishing a parole eligibility mechanism that provides a defendant
serving a de facto life sentence without possibility of parole for nonhomicide crimes that
he or she committed as a juvenile with the opportunity to obtain release on a showing of
rehabilitation and maturity.” (Caballero at p. 269, fn. 5.) This is exactly what section
3051 does. Therefore, defendant‟s sentence of 32 years to life does not violate the
Federal Constitution‟s prohibition against cruel and unusual punishment, as set forth in
Graham, Miller and Caballero.
11
This analysis is consistent with the recent California Supreme Court decision in
People v. Franklin, supra, 63 Cal. 4th 268. In addition, the Franklin court recognized
that, in order to fulfill the requirements of sections 3051 and 4801, the defendant “must
be afforded sufficient opportunity to make a record of information relevant to his
eventual youth offender parole hearing” at the time of sentencing. (Franklin at pp. 283-
284.)
3. Not Cruel and Unusual Under State Constitution
We also conclude that the 32-years-to-life sentence is not cruel and unusual under
the California Constitution. Section 12022.53 was enacted for the purpose of imposing
“„“substantially longer prison sentences . . . on felons who use firearms in the
commission of their crimes, in order to protect our citizens and to deter violent crime.”
[Citation.]‟” (People v. Gonzalez (2008) 43 Cal. 4th 1118, 1129.) Although it is the
Legislature‟s role to define crimes and proscribe penalties for them, all statutory penalties
are subject to the constitutional prohibition against cruel or unusual punishments
contained in article I, section 17 of the California Constitution. (People v. Dillon (1983)
34 Cal. 3d 441, 450 (Dillon).) Such a violation occurs when a statutory punishment “„is
so disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.‟” (Id. at p. 478; accord, In re Lynch
(1972) 8 Cal. 3d 410, 424 (Lynch).) “[A] punishment is impermissible if it is grossly
disproportionate to the offense as defined or as committed, and/or to the individual
culpability of the offender.” (Dillon, at p. 450.)
12
Whether a punishment is cruel or unusual in violation of the California
Constitution under the legal principles set forth in Lynch and Dillon, “presents a question
of law subject to independent review; it is „not a discretionary decision to which the
appellate court must defer.‟ [Citation.]” (People v. Felix (2003) 108 Cal. App. 4th 994 at
pl.1000.) The reduction of a sentence based on the determination it is cruel or unusual
under the California Constitution “„is a solemn power to be exercised sparingly only
when, as a matter of law, the Constitution forbids what the sentencing law compels.‟
[Citation.]” (Felix, at p. 1000.) Furthermore, such a reduction “„“must be viewed as
representing an exception rather than a general rule”‟” and “„[i]n such cases the
punishment is reduced because the Constitution compels reduction, not because a trial
court in its discretion believes the punishment too severe.‟ [Citation.]” (Ibid.)
“„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.)
13
In Lynch, supra, 8 Cal. 3d 410, the California Supreme Court identified three
analytical “techniques” a court must use to determine whether a punishment is
disproportionate to the crime: (1) the court considers the nature of the offense and the
offender “with particular regard to the degree of danger both present to society”; (2) the
punishment imposed with the punishments for more serious crimes in the same
jurisdiction; and (3) the court compares the punishment imposed with punishments for
the same crimes in different jurisdictions. (Id. at pp. 425-427; see Dillon, supra, 34
Cal.3d at pp. 479-482.) A punishment need not be disproportionate under all three
techniques to violate the California Constitution. (Dillon, at p. 487, fn. 38.) In his
briefing, defendant addresses only the nature of the offense and the offender.
In assessing proportionality, courts must examine “„the nature of the offense
and/or the offender, with particular regard to the degree of danger both present to
society.‟ [Citation.]” (Dillon, supra, 34 Cal.3d at p. 479.) Factors surrounding the
nature of the offense include the defendant‟s motive, the way the crime was committed,
the extent of the defendant‟s involvement, the manner in which the crime was committed,
and the consequences of his acts. (Id. at p. 479; Felix, supra, 108 Cal.App.4th at p. 1000;
People v. Wallace (2008) 44 Cal. 4th 1032, 1099.) Factors regarding the nature of the
offender include his “age, prior criminality, personal characteristics, and state of mind.”
(Dillon at p. 479; see Felix at p. 1000.) “[A] punishment which is not disproportionate in
the abstract is nevertheless constitutionally impermissible if it is disproportionate to the
defendant‟s individual culpability.” (Dillon, at p. 480.)
14
Here, the sentence was not cruel or unusual in light of the nature of the charged
offense. Defendant shot the victim in the head at very close range. The victim is
extremely lucky not to have been killed, which we attribute only to her having moved her
head back just before defendant shot her. Nevertheless, the victim lost several teeth and
at the time of trial still experienced numbness on the side of her face. Defendant engaged
in quite violent conduct with a firearm for the simple motive of robbing the victim of her
cell phone, purse, and vehicle.
In Felix, supra, 108 Cal.App.4th at page 1000, the defendant threatened but did
not shoot the victim with a firearm to commit a carjacking. The defendant unsuccessfully
argued that the imposition of the section 12022.53 subdivision (b), 10-year enhancement
term was cruel or unusual. The appellate court stated: “This statutory provision punishes
the perpetrator of one of the specified crimes more severely for introducing a firearm into
a situation which, by the nature of the crime, is already dangerous and increases the
chances of violence and bodily injury. We conclude nothing in the nature of the offense
or how it was committed allows striking the mandatory enhancement as cruel or
unusual.” (Felix, supra, 108 Cal.App.4th at p. 1001.) The difference between Felix and
the present case is that the Felix defendant received a ten-year enhancement for merely
threatening the victim with a gun, whereas defendant here received a 25-years-to-life
enhancement for using the gun to shoot the victim in the head. In both cases, the
defendant used the gun to increase both the danger of the crime and the risk of bodily
injury.
15
Nor are we persuaded that the sentence is grossly disproportionate to defendant‟s
individual culpability based on his personal characteristics. Here, defendant had turned
15 years old just 12 days before committing the offense, which could be a positive in
defendant‟s favor. However, although defendant did not have a long history of criminal
activity at that point, he showed serious signs of rebelliousness and unwillingness to
abide by the law, or by rules at home. Defendant had already been on juvenile probation
for arson, been arrested twice for drug possession, had been brought home by the police
at age 14 after running away from home, and had began using drugs at a young age.
Defendant indicated his relationship with his mother was “on and off” because she would
not let him go out to parties and established rules in her home about him having adult
women over. More important in terms of culpability, the probation officer noted in the
probation report that defendant showed no remorse, stressed how the shooting had
impacted him and his family, and expressed anger at the victim rather than sorrow at the
injury he had caused her. Regarding the victim, the defendant told the probation officer,
“I‟m not mad but I think she should have thought who she was sending to jail for his
whole life.” Defendant was angry about the possibility of paying restitution to the victim,
commenting “I would be especially mad. I heard that her family is a drug family, so
them taking money from my family, I‟d be more than mad.” Defendant also blamed his
girlfriend for testifying against him. Defendant‟s complete failure to take responsibility
16
for having committed this horrific crime that only by a miracle3 failed to cause the
victim‟s death increases his individual culpability for the crime.
Defendant does not contend his sentence is disproportionate to the punishments
for more serious crimes in the same jurisdiction or to punishments for the same crimes in
different jurisdictions, so we will not address those considerations in the Lynch analysis.
Notwithstanding defendant‟s youth, the fact remains he personally used a loaded
firearm at close range to commit the attempted murder, and it is only by chance that he
did not kill the victim. The total sentence of 32 years to life was not grossly
disproportionate to defendant‟s crimes, regardless of his age. Defendant was the direct
perpetrator; he had the intent to kill, for a fairly trivial reason; 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.] . . . [T]he Legislature has determined that a significant increase in
punishment is necessary and appropriate to protect citizens and deter violent crime.
[Citations.]” (People v. Em (2009) 171 Cal. App. 4th 964, 972-973.) We cannot say the
California Constitution compels the reduction of this sentence.
DISPOSITION
The judgment is modified to stay execution of the three-year enhancement
imposed pursuant to section 12022.7, subdivision (a). As modified the judgment is
3 At sentencing the judge commented, “You are lucky in one sense, that the
victim in this case did not die and was not more seriously injured. However, that was just
an intervention by an angel on your behalf.”
17
affirmed. We remand to the trial court for the limited purpose of determining whether
defendant was afforded an adequate opportunity to make a record of information that will
be relevant to the California Board of Parole Hearings as it fulfills its statutory
obligations under sections 3051 and 4801.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
18