Opinion
B222067
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL PAUL PADILLA, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA040696)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Samuel Paul Padilla appeals from the judgment entered upon his convictions by jury of five counts of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, counts 1, 2, 4-6), and one count of murder (§ 187, count 3). As to all counts, the jury found to be true the criminal street gang allegation within the meaning of section 186.22, subdivision (b)(1)(C) and the firearm use by a principal allegations within the meaning of section 12022.53, subdivisions (b) and (e), (c) and (e), and (d) and (e). As to counts 1 and 2, it found to be true the personal firearm use allegations within the meaning of section 12022.53, subdivisions (b), (c) and (d). The trial court sentenced appellant to an aggregate state prison term of 250 years to life. Appellant contends that (1) he was denied due process when the trial court refused to sever the trial on counts 1 and 2 from counts 3 through 6, (2) admission of the prior testimony of an absent witness without adequate showing of due diligence violated appellant's right to confrontation under the Sixth Amendment and the California counterpart, and (3) his 250-years-to-life sentence for crimes committed as a juvenile is cruel and unusual punishment.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The prosecution's evidence
November 13, 2007 shooting
Near noon, on November 13, 2007, 15-year-old appellant, a member of the Crazy-Minded gang (CM gang), Aldo Gonzalez (Aldo), another member of that gang, his brother, Adrian Gonzalez (Adrian), their friend, Alejandro Esqueda (Esqueda), and Adrian's girlfriend, Carolina Duran (Duran), were in Duran's van, driving to a friend, Justin's, home. Just before arriving at Justin's, they saw Chris Urina (Urina), Fredy Menendez (Menendez), Gilbert Hinojosa (Hinojosa), James McElroy, and Adrian Cabral (Cabral) on Lancaster Boulevard.
Appellant said he wanted to "hit them up" and told Duran to stop the van. Appellant and Aldo got out. One of them confronted the group and asked where they were from. Appellant fired into the air and then at the group, striking Cabral in the back killing him instantly. Urina was walking from the group and was shot at.
While this was occurring, Duran continued driving to Justin's home. Appellant and Aldo ran back to the van and directed Duran to drive. She drove them back to Friendly Village trailer park (Friendly Village), where all of the occupants of the van lived and which was claimed by CM gang as its territory.
Identifying appellant as perpetrator of the November 13 shooting
None of the victims were able to identify appellant in a photographic lineup and were equivocal at trial. Urina testified at trial that he heard six or seven shots from a handgun and yelling, but could not hear what was said. He told Detective Steven Lankford, however, that he heard people yelling, "Where you from." He could only identify the shooters as males, ages 16 to 20, one husky and the other slim, and about five feet seven inches tall. He could not identify their ethnicity or hair style. At trial, he could not identify appellant as involved in the shooting.
At the preliminary hearing, Menendez identified appellant as one of the two people involved in the shooting, but not as the shooter. At trial, however, he was unable to identify the perpetrators, claiming that he was not honest at the preliminary hearing because he did not have his glasses on at the time of the shooting or at the preliminary hearing. Until trial, he had never mentioned to anyone that he needed, but did not have, his glasses. He did identify appellant at trial as the person he had identified at the preliminary hearing. Menendez testified at trial that he saw hand gestures made and heard shouting, but not what was said. Before and after the preliminary hearing, he was threatened by CM gang members, who yelled "P.C." at him, meaning protective custody.
Hinojosa's preliminary hearing testimony was admitted at trial because he was unavailable. He identified appellant as the shooter. He also testified that he heard someone ask, "Where you . . . from." He did not hear anyone yell "CM," though he told Detective Lankford that he did. Before the preliminary hearing, he identified Aldo, but not appellant, in a six-pack.
Occupants of the van also made statements circumstantially implicating appellant. A couple of days after the shooting, Adrian spoke with Detective Lankford twice and admitted he was at the scene of the shooting. In the first interview, he said that three males came running back to the van, one holding a semiautomatic gun. The man holding the gun said, "I dropped him." He said that his brother, Aldo, was driving the van. In the second interview later that same day, Adrian changed his story and said that appellant and another person jumped out of the van, and returned with appellant holding a nine-millimeter or .45-caliber handgun. He also identified appellant in a photographic six-pack as the person he saw running back to the van with the gun.
At trial, however, Adrian claimed that his statements to the detective were lies because he was under the influence. He testified that appellant got out of the van at Justin's house with everyone else, and appellant and Aldo then left. Adrian then heard gunshots and saw appellant and Aldo running back to the van from Lancaster Boulevard. He did not see either with a handgun.
At trial, Duran testified that appellant and Aldo got out of the van. She heard shots moments later, as she was getting out of the car at Justin's house. Appellant and Aldo ran back to the van, and got in with the others and told Duran to drive. They went back to Friendly Village. Duran had seen appellant with a handgun a few days before the shooting, but not at the time of the shooting.
Esqueda testified that he told Detective Lankford that he heard appellant say that he wanted to "hit them up," before getting out of the van at Justin's. Appellant and another man left the group. Esqueda then heard gunshots, and appellant and the other man ran back to the van. Esqueda identified appellant in a six-pack as "Sam," who was in the van.
Detective Lankford spoke with Aldo, who was in custody and then released. Aldo placed himself and appellant at the scene of the shooting. When released, Aldo fled the country.
Investigation of November 13 shooting
Six nine-millimeter shell casings were recovered near the shooting scene. A search of appellant's bedroom uncovered a nine-millimeter extended clip gun magazine and a book with CM gang graffiti in it. Gang graffiti near the crime scene reflected that the CM gang was competing with rival gangs for control of that area.
November 14, 2007 shooting
At approximately 5:00 p.m., on November 14, 2007, Jimmy Hernandez (Hernandez) and Jose Reyes (Reyes), residents of Friendly Village, were driving through the trailer park in Reyes's Suburban. Reyes saw two individuals he recognized near appellant's residence: appellant, who was Black, and another male, who was Hispanic. Appellant fired at the Suburban from the passenger side several times, striking Hernandez in the back and Reyes in the jaw and chest. Hernandez saw a pistol a foot away from where he sat in the passenger seat and heard shots. Reyes drove to a neighbor's house, and the neighbor called 911. Hernandez knew appellant before the shooting and knew where he lived. He never told officers that appellant was the shooter and did not see the person who shot him. The shooting took place right next to where appellant lived. Hernandez still lived at Friendly Village and did not want to testify.
Identifying appellant as perpetrator of November 14 shooting
Deputy Scott Good responded to the scene of the November 14 shooting. He spoke with Reyes, who told him that the shooters were an adult male Black and a male Hispanic. He recognized them as residents of Friendly Village.
Deputy Steve Owen also spoke with Reyes on the night of the shooting. Reyes told him that appellant was the shooter, providing appellant's name and address. The police went to appellant's home, but he was not there. He was shown some photographs at the hospital and did not identify anyone. At trial, Reyes said he did not see the person who shot him and did not know a person by the name of Sam who lived at Friendly Village. He claimed not to remember telling police that a male Black by the name of Padilla shot at him and Hernandez. Though he denied being afraid to testify, Reyes moved from Friendly Village a month after the shooting.
Detective Lankford also interviewed Hernandez, who told him that he thought the shooting occurred because he was a former member of the Barrio Lornzo Cardenas or BLC gang, a rival gang to CM.
Ralphal Curry, the manager of Friendly Village, heard the gunshots and saw appellant standing outside in his driveway, wearing a hoodie with his hands in his pockets. He saw another male white or Hispanic run away. He did not see who did the shooting. There were no other males on the street. He assumed that the people in the Suburban shot at appellant, so Curry asked if appellant was alright. Appellant was "calm" and did not respond.
Gang evidence
Detective David Gunner gave substantial expert gang testimony. He opined that appellant was a member of CM gang, as were Aldo and Adrian. Friendly Village was CM gang territory at the time of the offense. Hernandez was a former member of BLC, a rival gang to CM. Detective Gunner opined that the two shootings were committed for the benefit of a criminal street gang.
The defense's evidence
Appellant's sister, Luv Quintero (Quintero), said that to the best of her knowledge appellant was at home at the time of the November 13 shooting and did not leave. Bonnie Steinmann (Steinmann), a neighbor at Friendly Village, brought over some Sierrra Mist soda for appellant's stomach. Quintero testified that appellant was so sick he was unable to get up and do anything, but admitted taking him and a friend to a recording studio that night.
Quintero also testified that appellant and a friend, known to her only as "Dopey," were at the trailer at the time of the November 14 shooting, but left just before the shooting. Quintero heard gunshots, and appellant returned to the trailer and then left again. Police arrived a short time later and arrested Dopey. Appellant never again returned to the trailer and did not tell Quintero where he was going. Only after appellant was arrested in Las Vegas did Quintero learn that he had gone there. Quintero denied telling police that appellant was a gang member. She claimed not to know that Aldo was a gang member until after the shootings.
Steinmann corroborated Quintero's testimony that Steinmann brought soda on November 13. Steinmann saw that appellant was sick. On November 14, 2007, she heard a gunshot and went outside. She thought the bullet came from appellant's home. She saw appellant run into the trailer and then heard more gunshots.
Ashleigh Fuller (Fuller) was walking through Friendly Village near the time of the November 14 shooting, when she saw appellant and his friend. Appellant picked her up and hugged her, during which she wrapped her legs around his waist and felt no gun. Appellant and Fuller went their separate ways. A short time later, she saw a purple Suburban coming towards them and heard four or five gunshots. Appellant was on the other side of the Suburban. It seemed like the gunshots came from where she saw appellant. When the Suburban drove away, Fuller asked appellant if he was alright. He never said he had been shot at.
DISCUSSION
I. Severance of charges
A. Background
Before trial, appellant filed a motion to sever the charges related to the November 14 shooting (counts 1 & 2) from those related to the November 13 shooting (counts 3-6). He argued that they were based on separate incidents, had no common witnesses, other than police officers and appellant's sister, no common evidence, and there was danger of prejudice from a "spillover effect" from combining the charges.
The prosecutor argued that there were factual similarities in the two cases, as appellant was alleged to have fired a gun at a car in one and at people standing on the sidewalk in the other. Some evidence would be cross-admissible because of the gang allegation and temporal proximity of the offenses. Judicial economy mandated one trial.
The trial court denied the motion, concluding that both crimes were of the same class, some of the evidence would be cross-admissible (gang evidence and alibi evidence), this was not a situation where a weak case would bolster a strong one, and our Supreme Court emphasized the judicial economy in trying cases together.
B. Contention
Appellant contends that the trial court abused its discretion and violated his federal constitutional rights by denying his motion to sever. He argues that evidence of his guilt was weak, there was only slight cross-admissibility of evidence and the crimes were similar and occurred close in time, making their joint trial prejudicial. This contention is without merit.
C. Standard of review
A trial court's denial of a motion for severance may be reversed only for an abuse of discretion. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) An abuse is found when the trial court's ruling falls outside the bounds of reason. (Ibid.)
D. Mandatory severance
Section 954 authorizes consolidation of charges as follows: "An 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, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . ." If charges are joined for trial that are not authorized by statute, the improperly joined charges must be severed.
As provided in section 954, a pleading may charge two or more different offenses so long as at least one of two conditions are met. The offenses are: (1) connected together in their commission, or (2) "'of the same class.'" (People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).)Consolidation must be evaluated against the backdrop of the legislative preference for joint trials (People v. Sullivan (2007) 151 Cal.App.4th 524, 557; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala))which serves the important function of promoting "'judicial efficiency'" (People v. Gray (2005) 37 Cal.4th 168, 221). Joinder of the charges here was proper under either statutory condition.
The consolidated charges here are not only of the same class, they are identical, including charges of attempted murder involving the shooting of a firearm multiple times at unsuspecting victims. (See Soper, supra, 45 Cal.4th at p. 771 [finding proper joinder of two murder charges because not only were they of same class, they were identical].)
The consolidated charges are also "connected together in their commission." (§ 954.) The cases construing this language have uniformly allowed joinder of several offenses for trial, even though they do not relate to the same transaction and were committed at different times and places and against different victims, where there is "'"a common element of substantial importance in their commission"'" (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted; People v. Lindsay (1964) 227 Cal.App.2d 482, 491-492; People v. Valdez (2004) 32 Cal.4th 73, 119), such as, for example, "the use of a defendant's home to commit the crime, or commission of several crimes against male juveniles." (People v. Leney (1989) 213 Cal.App.3d 265, 269; see also People v. Poon (1981) 125 Cal.App.3d 55, 69 [sexual motivation and young girl victims are common elements] disapproved on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292.)
Here, the two shootings had several "'"common element[s] of substantial importance."'" (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted.) They occurred within one day of each other. Each involved shooting at a group of two or more males, one group on the street, and the other in their car, for no apparent reason. Both offenses were alleged to be gang motivated. The November 13 shooting was committed by appellant and Aldo, both CM gang members, who had alighted from a van in which all of the occupants resided at the Friendly Village, CM gang territory. There was evidence that gang signs were thrown and a verbal gang challenge made. The November 14 shooting took place at Friendly Village, CM gang territory, by a CM gang member against Hernandez, previously a member of a rival gang. The alibis for both incidents were related and provided by the same witnesses, Quintero and Steinmann, who testified that appellant was very sick when both shootings occurred.
E. Discretionary severance
Once it is determined that the statutory requirements for joinder of charges are met, the defendant must then shoulder a heavy burden of establishing a clear showing of substantial prejudice from the failure to sever the charges (People v. Ramirez, supra, 39 Cal.4th at pp. 438-439; People v. Ochoa (1998) 19 Cal.4th 353, 409 (Ochoa))in order to show that the trial court abused its discretion. (Ochoa, supra, at p. 409.)
In determining whether the trial court abused its discretion in denying a motion to sever charges properly joined, the reviewing court must consider the particular circumstances of each case, though certain criteria have emerged to provide guidance, including (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong one or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (Soper, supra, 45 Cal.4th at pp. 774-775; People v. Mendoza (2000) 24 Cal.4th 130, 161.) Applying these factors here convinces us that the trial court did not abuse its discretion in denying the motion to sever.
1. Cross-admissibility
Much of the evidence regarding the November 13 and 14 shootings would have been cross-admissible if tried separately. Evidence of appellant's affiliation with the CM gang, the gang nature of the crimes, appellant's penchant for shooting at unsuspecting victims minding their own business, his intent to kill, appellant's flight from the scene in both incidents and an overlapping alibi that he was sick on both occasions would all be relevant on the issues of intent, modus operandi, and gun possession, among others. Cross-admissibility dispels prejudice. (Alcala, supra, 43 Cal.4th at p. 1221.)
2. Inflammatory nature of consolidated action
We agree with the trial court that neither set of offenses is appreciably more inflammatory than the other. Both involved the same charge of attempted murder, were unprovoked and involved multiple shots, multiple victims, and serious injury or death.
3. Consolidating a weak case with a strong case
This matter did not involve consolidating a strong case with a weak one, or two weak ones, to improve the likelihood of conviction. Our review of the evidence convinces us that neither case was appreciably stronger than the other, and both were comparatively strong. Appellant's alibi that he was sick and at home for each of the shootings was not credible. He was identified by the people in the car with him, his purported friends, as having been present in the car and gotten out just before the November 13 shootings. Steinmann saw appellant in his driveway, on the other side of the Suburban that had driven between them, just before the November 14 shooting. She saw him run into his house right afterwards. Each shooting involved witnesses who gave statements or preliminary hearing testimony identifying appellant as the shooter, but who later recanted at trial, at least in part in fear for their safety and that of their family.
4. Charges noncapital offenses
This case does not involve a capital offense nor did consolidation render any offense a capital offense.
II. Admission of prior testimony
A. Background
Hinojosa, who had testified at the preliminary hearing, could not be located for trial. The prosecution wanted to introduce his preliminary hearing testimony. The trial court conducted two unavailability hearings to determine the propriety of doing so.
The first unavailability hearing was conducted after three of the victims of the November 13 shooting had testified. Detective Lankford testified at the hearing as follows. He only had contact with Hinojosa by telephone after the preliminary hearing. He spoke with Hinojosa the day before the "court setting date" of October 19, 2007, and was told by Hinojosa that he and Menendez were going to attend the next day. When Hinojosa failed to appear for that hearing, Detective Lankford began looking for him in earnest.
Detective Lankford spoke with Hinojosa again and advised him that he would be needed for trial. Hinojosa said he would not be available because he did not want to put himself in danger. He reported that he and Menendez had been shot at a few weeks earlier. He would only say he was somewhere in Long Beach. After Detective Lankford spoke with Hinojosa three or four times, Hinojosa stopped answering the detective's calls.
Detective Lankford then tried to locate Hinojosa. He ran Hinojosa through law enforcement records and found several addresses for him in Lancaster and Palmdale, which he checked. The addresses were vacant properties. He contacted a family friend at the last known address he had for Hinojosa. The friend said Hinojosa had been staying with her but was asked to leave when he began causing problems. The detective found that appellant was not in custody or in the hospital.
Detective Lankford did not know where Hinojosa worked or if he was receiving government assistance. He had not checked out the two social security numbers he had for Hinojosa, the cell phone ping signals, Cal Gangs, or any of the adult or high schools or utility company records.
At the conclusion of Detective Lankford's testimony, the trial court stated: "I think you're almost there in terms of unavailability. It's very clear that Mr. Hinojosa . . . does not want to come in and is doing whatever he can to avoid the service. I don't believe that this detective had any indication that this witness was going to be uncooperative until the October 19th court date, which was a zero of ten date. And since then, he has done almost everything that I can imagine in order to locate Mr. Hinojosa." Before making a finding on unavailability, the trial court asked Detective Lankford to check the social security numbers through law enforcement data bases to see if Hinojosa could be served either at school or at work. It also directed the detective to try to locate him with Hinojosa's cell phone pings and check hospital and morgue records outside of the Antelope Valley.
At the follow-up unavailability hearing, Detective Lankford testified that he used the Detective Information Research Center data base to run Hinojosa's social security numbers, but came up with only another address. He sent an investigator to that address and determined that an African-American family lived there who had no relationship with Hinojosa. He placed a telephone call to the Employment Development Department and faxed a request for information to it, but received nothing back. In an effort by Detective Lankford to "do a cell ping" on Hinojosa's cell phone, he spoke with representatives of Nextel. He was told that a cell ping might only limit the location of the cell phone to anywhere from one to three miles. It would only give a general area, not a pinpoint location.
Detective Lankford also determined that Hinojosa was not in jail or in the hospital and could not be reached by phone. Detective Lankford tried calling him on his cell phone and on one occasion, someone picked up the call but then hung up. The detective conceded that he never served Hinojosa after the preliminary hearing or tried to contact him for over a year, believing he had no reason to do so. Defense counsel argued that there was no attempt to keep in contact with, or to serve Hinojosa, for trial.
The trial court said it was common for there to be delays between the preliminary hearing and trial in murder cases. It found "that Detective Lankford really had no reason to begin the service of the subpoena until the zero of ten date, which was October 19th, [2007], when we're actually going for trial." There had been a number of continuances and Detective Lankford had earnestly tried to locate Hinojosa, who had initially assured him that he would be there. Concluding that there was "nothing that they can do to locate him and to get him here," it found that for purposes of the Evidence Code Hinojosa was unavailable. Detective Lankford then told the court that he had forgotten to check Cal Gangs, to which the judge responded that it would not change its ruling.
Hinojosa's preliminary hearing testimony was then read to the jury in which he stated that appellant stopped on the street and "Hit [them] up," asking where they were from. He identified appellant as the person who shot into the air and then at the victims.
B. Contention
Appellant contends that admission of Hinojosa's preliminary hearing testimony violated his right to confront the witnesses against him under the Sixth Amendment and California's Constitution. He argues that the prosecution failed to exercise due diligence as Detective Lankford did not check Cal Gangs for information, despite the fact that he believed appellant was a gang member and knew that gang members do not want to testify, and failed to subpoena Hinojosa when he still had contact with him, relying on Hinojosa's promise to attend. This contention is without merit.
C. Constitutional right to confrontation
An accused in a criminal prosecution has the right "to be confronted with the witnesses against him" (U.S. Const., 6th Amend.; People v. Louis (1986) 42 Cal.3d 969, 982 (Louis), disapproved on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9) to "ensure that the defendant is able to conduct a 'personal examination and cross-examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.'" (Louis, supra, at p. 982.)
But the right to confront witnesses is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 897.) "Traditionally, there has been 'an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . .'" (Ibid.; People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).) An absent witness is not "'unavailable'" in a constitutional sense "unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial." (Herrera, supra, at p. 622.) Under California law the prosecution must show reasonable or due diligence in attempting to procure the witness at trial. (Ibid.)
D. California statutory hearsay exception
Former testimony is a traditional, narrow exception to the confrontation requirement where "a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." (Barber v. Page (1963) 390 U.S. 719, 722.) Evidence Code section 1291 provides that former testimony is not inadmissible by the hearsay rule if the declarant is "unavailable as a witness," and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."
Evidence Code section 240, subdivision (a)(5) provides that a witness is unavailable where the witness is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process."
We review the trial court's resolution of disputed factual questions under the deferential substantial evidence standard and independently review whether the facts demonstrate prosecutorial good faith and due diligence. (People v. Cromer, supra, 24 Cal.4th at p. 901; Herrera, supra, 49 Cal.4th at p. 623.) Due diligence to secure the presence of a witness is determined by the facts of each case and is incapable of "'mechanical definition.'" (People v. Sanders (1995) 11 Cal.4th 475, 523.) We assess due diligence by what has been done to effectuate the witnesses' attendance at trial, not by the suggestions of "Monday morning quarterbacks" as to what should have been done, but was not. (People v. Diaz (2002) 95 Cal.App.4th 695, 706 ["An appellate court 'will not reverse a trial court's determination [under [Evid. Code], § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection'"].)
While there is no universal formula to determine whether a prosecutor has exercised due diligence, courts look to the totality of the circumstances, including the character of the efforts made, whether the prosecutor reasonably believed the witness would appear willingly or if the prosecutor had reason to believe the witness would not, whether the search was timely begun, whether the witness would have been produced if reasonable diligence had been exercised (People v. Sanders, supra, 11 Cal.4th at p. 523) and how vital the witness's testimony is to the case (see People v. Hovey (1988) 44 Cal.3d 543, 564). The due diligence requirement is more stringent when the witness is vital to the prosecution's case and is one whose credibility is suspect. (Louis, supra, 42 Cal.3d at p. 991.) "Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.'" (Herrera, supra, 49 Cal.4th at p. 622.) Good faith and due diligence do "not include pursuing futile acts not likely to produce the witness for trial." (People v. Hovey, supra, at p. 562.)
We conclude that the evidence here established due diligence. As the trial court acknowledged, there would have been no reason to subpoena Hinojosa for a trial date after the preliminary hearing until it was zero of 10 because continuances, particularly in murder cases, are common. Ordinarily, the prosecution has no obligation to keep "'periodic tabs'" on every material witness in a criminal case. (Herrera, supra, 49 Cal.4th at p. 630.) Furthermore, until Hinojosa failed to come to court on October 19, 2009, Detective Lankford had no reason to believe that his promise to do so was bogus. Hinojosa appeared for the preliminary hearing, and the detective testified that he believed that Hinojosa and Menendez would follow through and appear as promised. Hinojosa told him so the day before. When they did not appear at the October 19, 2009 hearing, the detective began in earnest efforts to locate Hinojosa.
In evaluating the prosecution's diligence in seeking to locate Hinojosa, we focus on what it did in that regard, not on what it could have done, but did not do. (People v. Diaz, supra, 95 Cal.App.4th at p. 706.) Here, Detective Lankford spoke with Hinojosa the day before the October 19, 2009 hearing, and was told that Hinojosa and Menendez would appear. They failed to do so. Detective Lankford then spoke with Hinojosa later that day or the next, and Hinojosa said he would not come to court because he was frightened, as he had been shot at. Detective Lankford then spoke to Hinojosa's relatives, visited his last known address, and learned that Hinojosa had been ousted from that residence. At the trial court's direction, Detective Lankford also checked Hinojosa's social security numbers and discovered an additional address. Investigation of the address revealed that Hinojosa was not there and had nothing to do with that location. He contacted the Employment Development Department and obtained no new information. He spoke with Hinojosa's cell phone provider in an effort to determine his location from Hinojosa's cell phone pings, but was told that based on the limited information it would not be feasible. He also contacted hospitals and left a message on Hinojosa's cell phone, both without success. A witness known to be evading a trial subpoena, who has no known address and is not present at the addresses of his family or prior residence, is extremely difficult to locate.
Moreover, we must evaluate the prosecutor's efforts to serve Hinojosa in light of the fact that his testimony was not vital. From the preliminary hearing, it was anticipated he would testify that appellant was the November 13 shooter. This testimony was cumulative of the statements made by Adrian to police that appellant admitted doing the shooting, Menendez's preliminary hearing testimony identifying appellant as the shooter, and the statements of the van occupants, placing appellant at the scene of the November 13 shooting just before it occurred and running to the van and instructing Duran to drive away. (See People v. Hovey, supra, 44 Cal.3d at p. 564 [indicating that cumulative testimony is not vital].)
E. Harmless error
Even if Hinojosa's testimony was erroneously admitted, it was harmless under even the most stringent beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18.) Even without Hinojosa's testimony, there was overwhelming evidence of appellant's guilt. Adrian, Duran and Esqueda all provided statements that appellant left the van to confront the victims and returned moments after the shooting, anxious to drive away. Menendez identified appellant, and Aldo acknowledged that they were at the scene of the shooting. Most of the eyewitnesses recanted their prior statements out of fear or some other excuse. The jury nonetheless apparently concluded that they recanted out of fear rather than that appellant was not guilty.
III. Cruel and unusual punishment
A. Background
Appellant was sentenced to an aggregate prison term of 250 years to life for convictions of five counts of willful, deliberate and premeditated attempted murder and one count of murder. The trial court denied his request to run the three counts of attempted murder from the November 13 shooting (counts 4-6) concurrently.
B. Contentions
Appellant contends that imposing a 250 year to life sentence on a 15-year-old juvenile constituted cruel and unusual punishment under the federal and state Constitutions. He argues that "a sentence of 250 years to life is tantamount to life without parole. Appellant was only 15 years old when these offenses were committed. No matter how mature, rehabilitated, and remorseful appellant might become later in life, he would have no chance of even being considered for parole."
The People contend that appellant forfeited this contention by failing to raise it in the trial court. We conclude that this claim was forfeited, but even if it had not been, it lacks merit.
C. Forfeiture
Appellant has forfeited this contention by failing to raise it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) However, we will reach the merits in the interests of judicial economy to prevent the inevitable ineffectiveness of counsel claim. (People v. Em (2009) 171 Cal.App.4th 954, 972, fn. 5.)
D. Applicable principles
"'[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments . . . .' [Citation.] 'The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible.' [Citation.] 'Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.' [Citations.] 'Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations].' [Citation.]" (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214 [rejecting cruel and unusual punishment challenge to section 12022.53, subd. (d)].)
In California, "[t]he judiciary may not interfere with the authority of the Legislature to define crimes and prescribe punishment unless a prescribed penalty is so severe in relation to the crime that it violates the constitutional prohibition against cruel or unusual punishment. [Citations.] Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it 'shocks the conscience and offends fundamental notions of human dignity.' [Citation.]" (People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 559.)
In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch)articulated the relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution. Lynch requires consideration of the nature of the offender and the offense, comparison of the punishment with the penalty for more serious crimes in the same jurisdiction (id. at p. 426), and comparison of the punishment to the penalty for the same offense in different jurisdictions (id. at p. 427).
Under the federal Constitution, punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendment's prohibition against cruel or unusual punishment if it is "grossly out of proportion to the severity of [his] crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) In Harmelin v. Michigan (1991) 501 U.S. 957, of the five separate opinions, seven justices supported a proportionality review based on the gravity of the offense when compared to the severity of the sentence. We do not find the federal standard significantly different from the California standard and, if anything, it is subsumed within the Lynch analysis.
With respect to the first Lynch factor, the nature of the offender and the offense, we find appellant's sentence not grossly disproportionate to the severity of his crimes. Appellant shot at six individuals on a public street, in two separate incidents, occurring on consecutive days, hitting three of the victims, seriously injuring two of them and killing the third. Clearly unable to claim that the nature of his crimes do not warrant his sentence, appellant focuses on his youth. Age at the time a crime is committed is relevant to whether punishment goes beyond constitutional boundaries. (People v. Mendez (2011) 188 Cal.App.4th 47, 65 (Mendez); Graham v. Florida (2010) __ U.S. __ (Graham).)
Taking into account his age, we nonetheless conclude that his willful, deliberate and premeditated murder and attempted murders were not youthful indiscretions of an immature mind, but a deliberate, conscious attempt to take human lives by an evil and malicious mind, warranting the punishment he received. Even at 15 years old, appellant had already been a CM gang member for some period of time. He was old enough to fully understand the nature of his conduct and the consequences for it.
The principal cases which appellant claims supports his contention are inapposite. Thompson v. Oklahoma (1988) 487 U.S. 815, 838 holds only that a youth under 16 years of age cannot, consistent with the cruel and unusual punishment prohibition, be executed for a brutal murder. It does not preclude a juvenile of that age from receiving a life without the possibility of parole or equivalent sentence.
Graham also has no application here. In that case the 16-year-old defendant, who suffered from attention deficit hyperactivity disorder and whose parents were addicted to crack cocaine, was convicted by plea of armed burglary with assault and battery and attempted armed robbery and given probation subject to 12 months in county jail. Within six months of his release, he was arrested for a home invasion robbery and admitted involvement in several other robberies. He was sentenced to life in prison without parole (LWOP). The United States Supreme Court merely held that "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, supra, __ U.S. __ ; italics added.) Here, appellant was convicted of willful, deliberate and premeditated murder, expressly excluded from Graham's holding. Moreover, the heinous nature of the offenses, the use of firearms firing at groups of people, readily distinguishes this case from the crimes involved in Graham.
Our decision in Mendez is also inapplicable here. In Mendez, a 16-year-old defendant was convicted of carjacking, assault with a firearm and seven counts of second degree robbery. There were findings that he used a firearm during the commission of the offenses, and they were committed to benefit a criminal street gang. The defendant was sentenced to 84 years to life. We were presented with the issue of whether sentencing a juvenile to a prison term that exceeds his life expectancy, and therefore amounts to a de facto sentence of life without the possibility of parole, violates the commands of Graham. We concluded that the LWOP sentence precluded in Graham and the 84-years-to-life sentence in Mendez are "'materially indistinguishable.'" (Mendez, supra, 188 Cal.App.4th at p. 63.) But unlike in the case now before us, we were not considering a case involving murder.
The next step in the Lynch analysis is to compare appellant's punishment with punishments in California for more serious crimes. Appellant makes no attempt to make this showing and we therefore need not consider it.
Finally, Lynch requires that we compare the punishment imposed with punishments in other states. Only six states forbid LWOP sentences for juvenile offenders, seven permit LWOP sentences for juvenile offenders convicted of homicides, and, before Graham, 37 permitted LWOP sentences for nonhomicide offenses. (Graham, supra, __ U.S. __ [130 S.Ct. 2011, 2023, appendices I-III.) We do not find the penalty imposed here out of step with other jurisdictions.
We also do not find appellant's punishment to be out of all proportion with the offenses and so disproportionate as to "'shock[] the conscience and offend[] fundamental notions of human dignity'" (People v. Ingram, supra, 40 Cal.App.4th at pp. 1412-1413 [finding no cruel or unusual punishment of sentence of 61 years to life on two counts of residential burglary where the defendant had drug and alcohol problems and a lengthy record]), or "'"grossly out of proportion to the severity of [his] crime."'" (People v. Meneses (2010) 193 Cal.App.4th 1087, 1092.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J. We concur: BOREN, P. J. DOI TODD, J.