Opinion
D057609 Super. Ct. No. SCD210189
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ARCHULETA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.
Richard Archuleta, Jr., appeals the judgment entered after a jury found him guilty of murder and found true an allegation that a principal was armed with a firearm, and the trial court sentenced him to prison for 25 years to life for the murder plus one year for the firearm use. (Pen. Code, §§ 187, subd. (a), 190, subd. (a), 12022, subd. (a); subsequent undesignated statutory references are to the Penal Code.) Archuleta challenges the murder conviction on grounds of insufficient evidence and instructional error and also argues his prison sentence constitutes cruel and unusual punishment. We affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting at Golden Hill Park
In the early morning hours of June 19, 1986, Delores Attig, Star Lutes and Michael Stanton drove in Lutes's car to a secluded section of Golden Hill Park; they parked the car, drank beer, smoked cigarettes and listened to music. While Stanton was sitting in the driver's seat, a man with an Hispanic accent put a gun to the back of Stanton's head and ordered him out of the car. As Stanton started to get out of the car, another man with an Hispanic accent opened the passenger side door for him and told him to crawl out. Stanton saw a total of four men (besides Lutes and himself), one of whom was holding a gun against Lutes's head and pushing him against the back of the car. The man who assaulted Stanton dragged him a few feet away from the car and bound him with a belt, and Lutes was thrown down beside Stanton and bound with shoelaces.
While Stanton and Lutes lay on the ground, their attackers stated they had already killed three people and threatened to "blow [them] away." Two men, who conversed in Spanish, went through Stanton's pockets and took money, marijuana, and other items. Attig was then dragged away, as Stanton heard her "whimpering" and saying, "No, please don't." Shortly thereafter Stanton heard a gunshot.
Several minutes later, Stanton and Lutes untied each other, they scanned the area for Attig, but did not see her; they also called out to her, but received no response. Stanton and Lutes then ran to Stanton's house and contacted the police. B. The Initial Police Investigation
At approximately 5:30 a.m., on June 19, 1986, the police found Attig's dead body in Golden Hill Park. The naked corpse, with legs spread apart, was located approximately 100 feet from Lutes's car. There were bullet wounds on each temple. Articles of Attig's clothing were found strewn about. Swabs were inserted into the mouth, vagina and rectum of the corpse to collect fluid samples.
Five days later, the police were contacted by a San Clemente gas station manager who had Attig's wallet. A police officer picked up the wallet and also found Attig's purse in a dumpster behind the gas station. The officer later contacted an employee who had been on duty during the early morning hours of June 19. According to the employee, at approximately 4:00 a.m. on June 19, four Hispanic men drove into the station and acted "very suspicious[ly]." For example, the driver had "road rash" on his face and became "confrontational" when the employee asked whether he needed medical attention. In addition, the driver and the front passenger went to the ladies' restroom and became upset when the employee confronted them about their use of the ladies' room. The employee also "made them angry" when he directed the driver and front passenger to a map machine when they asked for a map to help them travel to Ontario, California. Finally, one of the two passengers who stayed in the back seat "kept looking around like there was something that was going to happen." C. The DNA Evidence
The investigation apparently lay dormant until 2006, when Archuleta, in an unrelated matter, provided a DNA sample that matched DNA found at the scene of Attig's murder. Specifically, Archuleta's DNA matched DNA from sperm found in the oral and rectal samples collected from Attig's corpse. Archuleta's DNA was also found in stains on Attig's pants and blouse.
DNA from two other men was also found at the crime scene. Steve Montanez's DNA was found in sperm cells in the sample taken from Attig's vagina. His DNA was found in stains on Attig's pants and blouse as well. Those stains also contained DNA matching samples provided by Eddie Cabanyog. D. The Testimony of Cabanyog and Detective Lynn Rydalch
Cabanyog testified at Archuleta's trial. He was 15 years old and the stepson of Steve Montanez at the time of Attig's murder. According to Cabanyog, Steve Montanez had a brother named Eddie. Cabanyog knew Archuleta from high school. Cabanyog testified that in a prior juvenile court proceeding concerning his involvement in Attig's death, he had admitted allegations of felony murder involving rape and robbery.
During direct examination Cabanyog was generally hostile to the prosecutor when she asked questions about Attig's murder. Specifically, when Cabanyog was questioned about prior statements he had made to police investigators concerning the murder, he denied having made the statements.
During cross-examination, Cabanyog testified that on the day Attig was killed, he and Archuleta, who was 17 years old at the time, had been drinking beer and riding with Steve and Eddie Montanez in a car, searching for marijuana. While trying to make their way home in the darkness of the early morning, they got lost and pulled over near the scene of Attig's murder to relieve themselves. The Montanez brothers "disappeared" up a hill. When Cabanyog and Archuleta climbed the hill to look for them, they saw two men tied up and lying on the ground. At some time later, Steve Montanez told Cabanyog to leave, so he ran down the hill to the car.
After Cabanyog testified, the People called Detective Lynn Rydalch, who had interviewed Cabanyog about Attig's murder. According to Detective Rydalch, Cabanyog stated that the guns involved in Attig's murder belonged to Archuleta. Cabanyog told Detective Rydalch that when he got to the top of the hill, he saw "some people already tied up" and a woman orally copulating Steve Montanez. Cabanyog also told Detective Rydalch that Steve Montanez raped the woman and was armed with a gun during the rape, but Cabanyog "believed that White women liked having sex with more than one man, and that she was not screaming or making any noise as if she were being raped." According to Detective Rydalch, Cabanyog said Steve Montanez eventually told Cabanyog, Archuleta and Eddie Montanez to leave; and as they were leaving, Cabanyog heard gunshots.
II
DISCUSSION
A. Sufficient Evidence Supports Archuleta's Murder Conviction
Archuleta contends his murder conviction must be reversed because there was insufficient evidence to support his involvement in the rape of Attig, one of the felonies the People relied upon to support a felony murder conviction. As we shall explain, the evidence was sufficient to establish that Archuleta aided and abetted the rape and therefore properly could be found guilty of felony murder.
The People also argued Archuleta was guilty of felony murder based on his participation in the robberies of Stanton and Attig. (See § 189 [defining killing committed in perpetration of robbery as first degree murder].) Archuleta does not contend the evidence was insufficient to support this theory of guilt.
Preliminarily, we reject Archuleta's self-described "convoluted" argument that automatic reversal is required because his conviction was based upon insufficient evidence, resulting in a legally inadequate theory of guilt. The rule of automatic reversal invoked by Archuleta applies to cases in which a particular theory of conviction is contrary to law, or, in other words, when the facts do not state a crime under the applicable statute. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 (Guiton).) This rule does not apply here because the People introduced evidence that Attig was killed during the perpetration of a rape which Archuleta aided and abetted, and that evidence, if legally sufficient and believed by the jury, would support a conviction of first degree murder. (See §§ 31 [aider and abettor is liable as principal], 189 [defining killing committed in perpetration of rape as first degree murder].) Thus, automatic reversal of Archuleta's murder conviction is not required; rather, as with most challenges to the sufficiency of the evidence, reversal is required only if the rape-murder theory was factually unsupported and the record indicates the verdict was based on that theory. (Guiton, at p. 1129.)
Turning to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of felony murder based on rape beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Maury (2003) 30 Cal.4th 342, 403.) "[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Albillar (2010) 51 Cal.4th 47, 60.)
As already noted, one of the People's theories at trial was that Archuleta could be convicted of felony murder because he aided and abetted Steve Montanez in raping Attig, and, during the course of the rape, Attig was killed. (See § 189 [defining killing committed in perpetration of rape as first degree murder].) One who aids and abets another in the commission of a crime is guilty of the crime, even if the other commits some or all of the acts constituting the crime. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Liability as an aider and abettor attaches if the defendant knew the perpetrator intended to commit the crime and the defendant intended to, and did, encourage or facilitate the perpetrator in committing the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Keovilayphone (2005) 132 Cal.App.4th 491, 497 (Keovilayphone).) Whether a defendant aided and abetted the commission of a crime is a question of fact that may be proved by circumstantial evidence (Beeman, at pp. 559-560; People v. Pitts (1990) 223 Cal.App.3d 606, 892-893); and on appeal we must resolve all conflicts in the evidence and draw all reasonable inferences in support of the judgment (People v. Campbell (1994) 25 Cal.App.4th 402, 409). "Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Other relevant factors include the defendant's failure to take steps to prevent the crime and flight from the crime scene. (People v. Jones (1980) 108 Cal.App.3d 9, 15 (Jones).) Applying these factors, we conclude there was sufficient evidence from which the jury reasonably could infer that Archuleta aided and abetted Steve Montanez in raping Attig, and this evidence was sufficient to support Archuleta's conviction of felony murder.
As an initial matter, there was sufficient evidence from which the jury reasonably could infer that Steve Montanez raped Attig, including: (1) the finding of sperm containing Steve Montanez's DNA in Attig's vagina; (2) Stanton's testimony that he and Lutes were tied up when Attig was dragged away "whimpering" and saying, "No, please don't"; and (3) Cabanyog's statement to Detective Rydalch that Steve Montanez had a gun as he raped Attig. (See § 261, subd. (a)(2) [defining rape as act of sexual intercourse accomplished against person's will by force or violence].) Indeed, Archuleta concedes the jury could have concluded that Steve Montanez raped Attig.
There also was sufficient evidence from which the jury reasonably could infer that Archuleta aided and abetted the rape. The testimony of Cabanyog that he and Archuleta ran up the hill together and found two men tied up, Cabanyog's statement to Detective Rydalch that he saw Steve Montanez holding a gun as he raped a woman, and the finding of Archuleta's DNA in Attig's body cavities and on her clothing place Archuleta at the scene of the rape. (See In re Juan G., supra, 112 Cal.App.4th at p. 5 [presence at scene of crime is one factor relevant to aiding and abetting].) Also supporting the inference that Archuleta and Steve Montanez were acting in concert was testimony from Cabanyog and the gas station employee that: (1) Archuleta was a friend of Cabanyog, who was Steve Montanez's stepson; (2) Archuleta, at Steve Montanez's direction, ran down the hill to the car after the rape; and (3) Archuleta, Cabanyog, and the Montanez brothers traveled together in the same car both before and after the rape. (See ibid. [companionship and conduct before and after crime are factors relevant to aiding and abetting]; Jones, supra, 108 Cal.App.3d at p. 15 [flight is factor relevant to aiding and abetting].) Further, and perhaps most importantly, the evidence that Archuleta provided the guns used in the crimes and that his sperm was found in Attig's mouth and rectum indicates that Archuleta actively participated in the sexual attack on Attig and supports an inference that he intended to, and in fact did, encourage and facilitate the rape. (See, e.g., People v. Lopez (1981) 116 Cal.App.3d 882, 885 [defendant was liable for aiding and abetting rape, even though he was not personally present when companion actually raped victim, when defendant had gun, was present when companion undressed and bit victim, and tied and gagged victim's husband]; People v. Macchiaroli (1921) 54 Cal.App. 665, 667 [defendant who ordered man out of automobile and robbed and detained him at gunpoint while two companions robbed and raped woman was guilty of rape as aider and abettor]; People v. MacDonald (1921) 53 Cal.App. 488, 490 [defendant aided and abetted rape of victim by companions when defendant sodomized victim "in the course of a general orgy of passion and lust in which the defendant took throughout a sufficiently guilty part"].)
In sum, the evidence was sufficient to support Archuleta's liability for aiding and abetting the rape of Attig. That liability, in turn, was sufficient to support the murder conviction, since Attig was killed in the commission of the rape. (See § 189 [killing committed in perpetration of rape constitutes first degree murder]; People v. Dominguez (2006) 39 Cal.4th 1141, 1159 [liability for felony murder extends to those who actively participate in underlying felony even if they take no part in actual killing]; People v. Castro (1994) 27 Cal.App.4th 578, 586 [for purpose of felony murder, rape continues as long as culprit maintains control over victim].) Since the evidence was sufficient to support Archuleta's conviction on the rape-murder theory, we need not and do not address his various arguments that reversal is required because the jury likely based its verdict on this theory rather than the People's alternative theory of robbery-murder. (See Guiton, supra, 4 Cal.4th at p. 1129 [reversal required if one of several grounds for verdict is factually unsupported and record indicates verdict rested on that ground].) B. The Trial Court Properly Instructed the Jury Regarding Rape
Archuleta contends the trial court erred by instructing the jury that "[t]he crime of rape is an act of sexual intercourse with a person who is not the spouse of the perpetrator accomplished against the will of such person by means of force," but refusing his trial counsel's request that the court also instruct the jury that "sexual intercourse" is limited to vaginal penetration. Trial counsel asserted this limiting instruction was needed because in 1986, when the crimes were committed, neither oral copulation nor sodomy was a predicate offense for felony murder. (See Historical and Statutory Notes, 47A West's Ann. Pen. Code (2008 ed.) foll. § 189, pp. 199, 200 [sodomy (§ 286) and oral copulation (§ 288a) were made predicate offenses for felony murder by Proposition 115, effective June 6, 1990]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-298 [crimes added by Proposition 115 to list of felonies supporting conviction of first degree murder cannot be used to support felony murder conviction for killing that occurred before its effective date].) Archuleta now argues that reversal is required because some jurors erroneously might have concluded they could find Archuleta guilty of rape based solely on evidence he penetrated Attig's mouth or anus. We disagree.
As pertinent to this appeal, California law defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [w]here it is accomplished against a person's will by means of force . . . ." (§ 261, subd. (a)(2).) Our Supreme Court has repeatedly held that the term "sexual intercourse," as used in section 261, is commonly understood to refer to penetration of the victim's vagina (or at least external genitalia) and need not be expressly defined as such for the jury. (See, e.g., People v. Rundle (2008) 43 Cal.4th 76, 151-152, disapproved on unrelated grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin); People v. Geier (2007) 41 Cal.4th 555, 593; People v. Guerra (2006) 37 Cal.4th 1067, 1138; People v. Stitely (2005) 35 Cal.4th 514, 554; People v. Holt (1997) 15 Cal.4th 619, 676 (Holt).) Similarly, the Court of Appeal held nearly a century ago that it was not reversible error to fail to instruct the jury that rape required penetration of the victim's "sexual organs," because the trial court defined the crime of rape as "sexual intercourse," which was "commonly understood" to imply such penetration. (People v. Marino (1917) 33 Cal.App. 448, 451.) These cases also hold that specific instructions limiting sexual intercourse to vaginal penetration and excluding anal penetration are not required when only rape and not sodomy is involved in the charges (e.g., Rundle, at pp. 151-152), or when other instructions or the arguments of counsel make clear that a conviction of rape requires vaginal penetration (e.g., Geier, at p. 593; Holt, at p. 676).
Here, the jury instructions made clear that the charge of murder was based on a killing that occurred during the commission of rape or robbery, not during the commission of oral copulation or sodomy. The instructions on rape correctly stated that the People had to prove, among other elements, an act of "sexual intercourse"; and that any degree of "sexual penetration" would suffice to complete the rape. During closing arguments, the prosecutor defined what was meant by the quoted terms: "[T]he rape has to be sexual intercourse -- in 1986, sodomy and forced oral cop[ulation] were not considered under the felony murder rule. . . . One of the attackers had to rape [Attig], had to stick his penis in her vagina." (Italics added.) Archuleta's trial counsel also emphasized this same point during his closing argument:
"Something I want to make very clear. And I know the People have told you this. But going back to the instruction on rape, when we are talking about rape for legal purposes, the law says that rape is an act of sexual intercourse. So rape is not -- rape is not oral copulation. Rape is not sodomy. There is no dispute about that. Rape means sexual intercourse,In view of these instructions and arguments, "[w]e agree with the People that there is no possibility that the jury did not understand that in the court's instruction on rape, the intercourse to which the instruction referred required penetration of the victim's vaginal genitalia." (Holt, supra, 15 Cal.4th at p. 676.)
which means exactly that, penis in vagina. That's what rape is." (Italics added.)
We are not persuaded by any of Archuleta's various arguments that reversal is required because the trial court did not explicitly instruct the jury that rape is limited to vaginal intercourse or penetration. We shall address each argument briefly.
Archuleta complains that the limitation of the meaning of "sexual intercourse" as used in California's rape statute (§ 261) to penetration of female genitalia by male genitalia is "archaic," "runs counter to how sexual intercourse is generally understood in our current era," and does not account for "such thing as male rape." In support of this argument, Archuleta relies primarily on statutes of the United States and of sister states which define "sexual intercourse" to include oral and anal penetration as well as vaginal penetration. To that extent, those statutes differ from California law. But it is the California statute defining rape, as interpreted and applied by the California Supreme Court, which we must apply on this appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California."].) Further, Archuleta's purported concern about "male rape" is irrelevant to this case, which involves a female rape victim; and, in any event, California prohibits nonconsensual sodomy by separate statute (see § 286). We thus see no adequate reason in this case to reevaluate the long-established meaning of "sexual intercourse" as used in section 261.
We disagree with Archuleta that the prosecutor's argument that the jury could find him guilty of rape in part because his DNA was found in Attig's mouth and rectum was misleading and requires reversal. In support of this argument, Archuleta selectively quotes a portion of closing argument where the prosecutor argued, somewhat ambiguously, that "with rape, some penetration is required. . . . The swabs are going into the vagina, going into the rectum, going into the mouth. . . . The only way that his sperm and DNA ended up in these spots is that he penetrated." (Italics added.) In the next few paragraphs of her argument, however, the prosecutor removed any ambiguity about who raped Attig by stating that Archuleta's DNA was found in Attig's mouth and rectum; that Steve Montanez's DNA was found in Attig's vagina; and that Archuleta and Steve Montanez used Attig's clothing "to wipe themselves after they rape[d], orally copulate[d] and sodomize[d] her." The prosecutor thus distinguished the rape (i.e., vaginal penetration) committed directly by Steve Montanez from the oral copulation (i.e., mouth penetration) and sodomy (i.e., anal penetration) committed directly by Archuleta. Moreover, the prosecutor properly discussed all of the DNA evidence together because the finding of Archuleta's DNA in Attig's mouth and rectum supported the People's theory that Archuleta was guilty of rape by aiding and abetting Steve Montanez, whose DNA was found in Attig's vagina. (See part II.A., ante.) There was therefore nothing improper about the challenged aspect of the prosecutor's closing argument that requires reversal. (See People v. Ayers (1975) 51 Cal.App.3d 370, 380 [prosecutor's argument is proper when, considered in its entirety and in context, it consists simply of an appraisal of evidence in the record].)
Finally, we reject Archuleta's contention that the instruction on rape in concert (former CALJIC No. 10.01) misstated the law and permitted a felony murder conviction based on a sexual attack other than rape. As relevant here, the instruction advised the jury that "the phrase 'acted in concert' means two or more persons acting together in a group sexual attack and includes not only those who personally engage in the act constituting the crime but also those present who aid and abet a person in accomplishing it." The trial court denied Archuleta's trial counsel's request that "rape" be substituted for "sexual attack" to make clear that "sexual attack" did not include sodomy or oral copulation. The requested substitution was not required because the instruction did not use the term "sexual attack" to define a substantive crime that could be used to support felony murder. The only substantive crime mentioned in the instruction, both by name and statute number, was rape. The instruction used the term "group sexual attack" not to define rape, but to define what was meant by the phrase "acted in concert"; and in that regard, the instruction correctly advised the jury that liability for Attig's rape could be imposed not only on the man who personally engaged in the rape but also on others who participated in the group sexual attack on Attig and aided and abetted the rape. (See § 264.1; Keovilayphone, supra, 132 Cal.App.4th at p. 497.) Thus, the instruction on rape in concert did not, as Archuleta contends, impermissibly permit the jury to find Archuleta guilty of felony murder based on oral copulation or sodomy. C. The Trial Court Was Not Required to Give a Unanimity Instruction Regarding the Theory of Murder
The instruction was entitled "Rape by Concerted Action of Two or More Persons." (Capitalization altered.) It defined rape in concert as "[a] violation of Penal Code Section 261 (Rape) while acting voluntarily in concert with another person, either personally or by aiding or abetting the other person, by force or violence against the will of the victim . . . ." It also listed the elements of rape in concert as requiring proof of a violation of section 261.
Archuleta contends the trial court committed reversible error by failing to instruct the jury that it had to agree unanimously on which felony he committed in order to find him guilty of felony murder. The trial court instructed the jury that Archuleta was being prosecuted for murder under two theories, felony murder based on robbery and felony murder based on rape. The court further instructed the jury: "You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory." (CALCRIM No. 548, italics added.) As we shall explain, these instructions were correct.
"To convict a defendant of first degree murder, the jury must unanimously agree that the defendant is guilty of that offense beyond a reasonable doubt." (People v. Taylor (2010) 48 Cal.4th 574, 626.) "It is settled, however, that 'in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution . . . .' " (People v. Guerra (1985) 40 Cal.3d 377, 386.) In particular, in cases where the People presented multiple theories of first degree murder and each theory was based on a killing committed during the perpetration of a different predicate felony (or "target offense"), our Supreme Court repeatedly has rejected the argument that murder convictions had to be reversed "because the trial court did not instruct the jurors they must unanimously agree on which of the target offenses formed the basis of their verdict." (Taylor, at p. 626 [no unanimity required as to whether rape, burglary, or forcible oral copulation underlay felony murder conviction]; accord, People v. Lewis (2001) 25 Cal.4th 610, 654 [same as to robbery or burglary]; Guerra, at pp. 381, 386 [same as to robbery or kidnapping].) We therefore reject Archuleta's contention that the trial court erred by not instructing the jury it had to agree unanimously on which predicate felony Archuleta committed in order to convict him of murder. D. The Giving of Instructions Regarding Cabanyog's Status as an Accomplice Was Not Erroneous
Archuleta argues the trial court prejudicially erred when it instructed the jury that Cabanyog was an accomplice. After setting forth some additional pertinent facts, we will address this argument.
1. Additional Facts
When trial counsel were discussing jury instructions with the court, Archuleta's trial counsel did not "have a problem" and was "okay with" instructing the jury that, based on Cabanyog's admission in juvenile court, Cabanyog was an accomplice as a matter of law. Counsel's only objection was to the wording of the first sentence of the standard instruction: "If the crime[s] of _____ (was/were) committed, then ____(was/were) [an] accomplice[s] to (that/those) crime[s]." (CALCRIM No. 335) Counsel was concerned that, when modified to fit the facts of this case, the sentence might lead the jury to conclude that Archuleta was an accomplice to or was guilty of rape and robbery. Archuleta's trial counsel proposed alternate language, and after consultation with the prosecutor and the trial court, agreed to modify the first sentence of the accomplice instruction to read as follows: "Because Eddie Cabanyog admitted the crimes of rape, robbery and murder in juvenile court, he is an accomplice to those crimes." With this modification, the jury was instructed, in accordance with CALCRIM No. 335, that corroboration of Cabanyog's statements or testimony was required for conviction, and that it should view with caution any statement or testimony of Cabanyog tending to incriminate Archuleta.
2. Legal Analysis
As an initial matter, because Archuleta's trial counsel requested and agreed to the modified accomplice instruction, he "made a 'conscious and deliberate tactical choice' [citation] to request the challenged instruction, [and] any error was invited." (People v. Lee (2011) 51 Cal.4th 620, 645.) The doctrine of invited error therefore bars Archuleta from challenging on appeal the giving of the modified accomplice instruction. (People v. Weaver (2001) 26 Cal.4th 876, 970; People v. Wader (1993) 5 Cal.4th 610, 657-658.)
Even if we were to consider Archuleta's argument on the merits, we would reject it. "When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices." (People v. Frye (1998) 18 Cal.4th 894, 965-966, disapproved on unrelated grounds by Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Here, the trial court duty's to instruct regarding accomplice testimony was triggered by Cabanyog's undisputed testimony that in juvenile court he admitted rape, robbery and murder of Attig, which made him an accomplice to those crimes as a matter of law. (See § 1111; People v. Catlin (1959) 169 Cal.App.2d 247, 255.) Furthermore, the instruction the trial court gave correctly advised the jury that Cabanyog's testimony required corroboration (§ 1111) and " 'should be viewed with caution' " (People v. Guiuan (1998) 18 Cal.4th 558, 569). Since the instruction was "proper and for the benefit of [Archuleta], not his detriment" (People v. Teitelbaum (1958) 163 Cal.App.2d 184, 219), the trial court did not err in giving it.
Archuleta nevertheless contends that Cabanyog's admission of guilt and the instruction that Cabanyog was an accomplice as a matter of law amounted in combination to a "partial directed verdict" against Archuleta, which deprived him of his right to a jury determination of guilt. In making this argument, Archuleta relies primarily on People v. Hill (1967) 66 Cal.2d 536, 555, where our Supreme Court cautioned that when "a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant's foregone guilt to the other defendants." Hill does not apply here, however. Cabanyog and Archuleta were not codefendants at trial, because Cabanyog admitted guilt before he testified; and the jury heard other, independent evidence against Archuleta that was highly incriminating (e.g., the DNA evidence). (Cf. People v. Bittaker (1989) 48 Cal.3d 1046, 1063-1068, 1100 [holding Hill inapplicable in case where accomplice had pled guilty before testifying against defendant and other, independent evidence strongly implicated defendant].) Moreover, "[n]o word in the instruction was to the effect that [Cabanyog] was the accomplice of [Archuleta]. That question was left for the determination of the jury." (People v. Williams (1936) 17 Cal.App.2d 122, 126.) We therefore conclude that "[u]nder the circumstances of this case, . . . there is no significant danger that the jury would impute [Cabanyog's] admitted guilt to [Archuleta]." (Bittaker, at p. 1100.) E. Archuleta's Prison Sentence Does Not Constitute Cruel and/or Unusual Punishment
Archuleta contends the sentence of 25 years to life in prison imposed for the felony murder he committed when he was 17 years old must be reversed because it is "grossly disproportionate" to his personal culpability and therefore violates both the state and federal constitutional prohibitions against cruel and/or unusual punishment. (See U.S. Const., 8th Amend. [banning "cruel and unusual punishments"]; Robinson v. California (1962) 370 U.S. 660, 666-667 [applying 8th Amend. ban to states through 14th Amend.]; Cal. Const., art. I, § 17 [banning "[c]ruel or unusual punishment"].) We disagree.
Initially, we note that Archuleta forfeited his right to challenge his prison sentence as cruel and unusual punishment by failing to object to the sentence on that ground in the trial court. (People v. Russell (2010) 187 Cal.App.4th 981, 993; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) "Nonetheless, we shall reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim." (People v. Norman (2003) 109 Cal.App.4th 221, 230.)
Turning to the merits, we echo our Supreme Court by "emphasiz[ing] the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual." (People v. Wingo (1975) 14 Cal.3d 169, 174 (Wingo).) A defendant meets this burden if the punishment is "grossly disproportionate" to the offense for which it is imposed. (Solem v. Helm (1983) 463 U.S. 277, 288 (Solem); People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) In evaluating proportionality, courts consider (1) the nature of the offense and the offender, (2) punishments for more serious offenses in the same jurisdiction, and (3) punishments for similar offenses in other jurisdictions. (Solem, at pp. 291-292; In re Lynch (1972) 8 Cal.3d 410, 425-427.) "[A]pplication of a proportionality analysis to reduce a first degree felony-murder conviction must be viewed as representing an exception rather than a general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014.) For the reasons that follow, we conclude that this case presents no exception.
Whether we consider felony murder in the abstract or the particular facts of the felony murder in question (see Dillon, supra, 34 Cal.3d at p. 479), Archuleta's sentence of 25 years to life in prison is not disproportionate to the offense. There can be no dispute that murder is a serious crime (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em)), that rape is a violent and serious crime (§§ 667.5, subd. (c)(3), 1192.7, subd. (c)(3)), or that robbery-murder presents a very high level of danger to society (Dillon, at p. 479). There also can be no dispute that the particular crime involved in this appeal was heinous. The murder resulted from a vicious and unprovoked attack on a defenseless woman who was unknown to Archuleta and his accomplices and who happened to be in the wrong place at the wrong time. Although Archuleta did not personally shoot Attig, he provided the guns that were used to rob and rape her, actively participated in a group sexual attack by sodomizing and orally copulating her, and aided and abetted the rape and subsequent murder. The brutal robbery, rape and murder of Attig "are extremely serious crimes and they deserve severe punishment." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846.)
The conclusion that Archuleta's sentence was not grossly disproportionate to his offense is also supported by a comparison of the punishments for more serious California offenses and for felony murder in other jurisdictions. (See Solem, supra, 463 U.S. at p. 291; In re Lynch, supra, 8 Cal.3d at pp. 426-427.) Since 1978, California law has authorized the greater penalty of life in prison without the possibility of parole for a 17-year-old who commits felony murder based on robbery or rape, as well as for the more serious crime of willful, deliberate, and premeditated murder. (See §§ 189, 190, subd. (a), 190.2, subd. (a)(17)(A) & (C), 190.5, subd. (b); Dillon, supra, 34 Cal.3d at p. 479 [noting that robbery-murder presents danger "second only to deliberate and premeditated murder with malice aforethought"].) Moreover, the United States Supreme Court has held, in a pair of cases from California, that prison sentences of 25 years to life and 50 years to life imposed on recidivists for theft offenses did not constitute cruel and unusual punishment. (Lockyer v. Andrade (2003) 538 U.S. 63; Ewing v. California (2003) 538 U.S. 11.) And courts in this and other states have held that a prison sentence of life without the possibility of parole did not constitute cruel and/or unusual punishment when imposed on a minor convicted of felony murder. (See, e.g., People v. Guinn (1994) 28 Cal.App.4th 1130, 1147 (Guinn); People v. Launsburry (1996) 217 Mich.App. 358, 363-365 [551 N.W.2d 460, 463-464]; Commonwealth v. Carter (Pa.Super. 2004) 855 A.2d 885, 891-892.) If the more severe penalty of life in prison without the possibility of parole can be imposed on a minor for felony murder (Guinn, at p. 1147), and if "terms of 25 years to life and 50 years to life are not ' "grossly disproportionate" ' for petty theft with prior felony convictions, then [Archuleta's] total sentence of [26] years to life is not grossly disproportionate to the crime of murder" (Em, supra, 171 Cal.App.4th at p. 977).
Archuleta argues that his sentence is nevertheless unconstitutional because it is grossly disproportionate to his culpability, primarily because at the time of Attig's murder he was only 17 years old, was subject to peer pressure, and was intimidated by Steve Montanez. For his argument, Archuleta relies mainly on Dillon, supra, 34 Cal.3d 441, and to a lesser extent on Graham v. Florida (2010) __ U.S. __ [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham) and People v. Mendez (2010) 188 Cal.App.4th 47 (Mendez). We reject this argument.
This case cannot reasonably be compared to Dillon, supra, 34 Cal.3d 441, where our Supreme Court held unconstitutional an indeterminate sentence of life in prison imposed on a minor for felony murder. The 17-year-old Dillon was convicted of felony murder and attempted robbery after killing a man who had been guarding a marijuana crop which defendant and his friends were trying to steal. (Id. at pp. 450-452.) The evidence showed that as the victim advanced on him with a shotgun, Dillon fired his rifle out of fear and panic. (Id. at pp. 482-483.) The evidence also showed that Dillon "was an unusually immature youth" and that the homicide had been "a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger." (Id. at p. 488.) Here, by contrast, there was no evidence that Archuleta was unusually immature or susceptible to influence by others, that he believed Attig posed an immediate danger to his life, or that Attig was armed or was shot in a confrontation during which her killer panicked and thought Attig might harm him. Instead, the evidence showed Attig was executed in a cold-blooded manner after Archuleta and his companions robbed, orally copulated, sodomized and raped her. "The facts in Dillon contrast dramatically with the ambush robbery[, rape] and murder of [Attig], an innocent person sitting in [a] car." (Em, supra, 171 Cal.App.4th at p. 973.)
Numerous post-Dillon cases have rejected cruel and/or unusual punishment challenges to life sentences imposed on minors for felony murder. (See, e.g., Em, supra, 171 Cal.App.4th at pp. 971-977 [upholding consecutive 25-years-to-life terms (for murder and firearm enhancement) imposed on 15-year-old accomplice in gang robbery]; People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-89 [rejecting 17-year-old's cruel and/or unusual punishment challenge to sentence of 25 years to life for burglary-murder]; People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 (Ortiz) [affirming 26-years-to-life sentence for 14-year-old gang member who aided and abetted robbery-murder].)
Also inapplicable to this case are Graham, supra, 130 S.Ct. 2011, and Mendez, supra, 188 Cal.App.4th 47. In Graham, the United States Supreme Court held that the federal "Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, at p. 2034, italics added.) In Mendez, the Court of Appeal considered a prison sentence of 84 years to life imposed on a defendant who was 16 years old when he committed carjacking, robbery and assault with a firearm. (Mendez, at p. 50.) The court held: "Mendez received a de facto [life without parole] sentence for nonhomicide crimes in which he did not inflict any physical injury on his victims. This strikes us as a sentence that is grossly disproportionate to the crimes committed and the culpability of the defendant." (Id. at p. 67, italics added.) These cases are not on point, however, because Archuleta did not receive a de jure or de facto sentence of life without parole; he did physically injure Attig, by orally copulating and sodomizing her; and, most importantly, he was convicted of felony murder, a homicide offense. Archuleta's youth at the time of the murder is thus not a controlling factor in this case. (See Em, supra, 171 Cal.App.4th at p. 976 [although in considering whether a sentence is cruel or unusual "the defendant's age matters," it "is also manifestly true . . . that murder matters"].)
Moreover, the central rationale for the prohibition on life without parole sentences for juvenile offenders — to give them "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" (Graham, supra, 130 S.Ct. at p. 2030) — is not applicable here. According to the probation officer's report, in the 20 years Archuleta avoided detection of his involvement in Attig's murder, he committed various theft offenses, burglary, drug-related offenses, spousal abuse, and other crimes. Archuleta has thus demonstrated that he is a career criminal, not that he has matured or rehabilitated.
Archuleta also contends, without citing any pertinent authority, that the "grossly disproportionate" nature of his sentence is "graphically" illustrated by the fact that Cabanyog was not incarcerated. The unstated premise of this argument is that when a case involves multiple perpetrators and a defendant challenges his sentence as cruel and/or unusual, a court must compare the defendant's sentence to those imposed on the other perpetrators. This premise, however, is inconsistent with our Supreme Court's holding that " '[p]roperly understood, intracase proportionality review is "an examination of whether defendant's . . . sentence is proportionate to his individual culpability, irrespective of the punishment imposed on others."'" (People v. Jackson (1996) 13 Cal.4th 1164, 1246, second italics added.) Hence, the mere fact that Cabanyog was not sentenced to prison does not make Archuleta's prison sentence grossly disproportionate to his offense.
This differential treatment apparently resulted from the facts that at the time of Attig's murder, Archuleta was 17 years old and Cabanyog was 15 years old. The law then in effect permitted a minor 16 years of age or older who was charged with murder to be tried as an adult and sentenced to prison, but prohibited such treatment of a similarly charged minor younger than 16 years of age. (See Stats. 1983, ch. 390, § 2, pp. 16301633 [Welf. & Inst. Code, former § 707]; In re Harris (1993) 5 Cal.4th 813, 837; In re Eric J. (1979) 25 Cal.3d 522, 531.)
--------
Finally, Archuleta argues his sentence is cruel and unusual because he did not actually kill or intend to kill Attig and because the attack on Attig "was not preplanned, but rather occurred spontaneously, when the assailants, having consumed considerable quantities of alcohol and seeking to relieve themselves, quite fortuitously came upon the victims." As we have previously explained, however, the evidence of Archuleta's substantial participation in the sexual attack on Attig indicated that Archuleta intended to and did encourage or facilitate the rape that resulted in Attig's death and thereby made him liable for felony murder as an aider and abettor, even though he did not actually kill or even intend to kill Attig. (See part II.A., ante; see also People v. Cavitt (2004) 33 Cal.4th 187, 198, fn. 2 [no defense to felony murder that nonkiller did not intend to kill].) A sentence of 25 years to life in prison for a defendant who aids and abets a felony murder is neither cruel nor unusual. (Em, supra, 171 Cal.App.4th at pp. 971-977; Ortiz, supra, 57 Cal.App.4th at pp. 486-487.) As for the contention the robberies, rape and murder were not planned, "[t]he senselessness of [Archuleta's] crimes makes them more, rather than less, deserving of punishment." (Guinn, supra, 28 Cal.App.4th at p. 1146; accord, Em, at p. 975 ["The small amount of planning and randomness of the crime, however, do not negate the cold-blooded nature of [the] murder."].) And, as for the contention Archuleta's culpability was reduced because he had "consumed considerable quantities of alcohol," the evidence that he deposited sperm in Attig's mouth and rectum indicated he was sufficiently sober to have participated actively and voluntarily in the sexual attack on Attig. In any event, the jury was properly advised, pursuant to a standard instruction (CALCRIM No. 3426), to consider Archuleta's voluntary intoxication for the limited purpose of determining whether he acted with the specific intent required for the crimes of rape and robbery as predicates for felony murder. (See § 22, subd. (b); People v. Mendoza (1998) 18 Cal.4th 1114, 1133 [intoxication evidence relevant to liability as aider and abettor].) By returning a guilty verdict, the jury necessarily decided Archuleta had the requisite intent to commit at least one of those crimes.
In sum, we conclude that Archuleta has not sustained the "considerable burden" (Wingo, supra, 14 Cal.3d at p. 174) to show that his sentence of 25 years to life in prison is "so disproportionate to the crime for which it [was] inflicted that it shocks the conscience and offends fundamental notions of human dignity" (In re Lynch, supra, 8 Cal.3d at p. 424). His sentence therefore does not constitute cruel and/or unusual punishment prohibited by the federal and state Constitutions.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.