Opinion
D058197 Super. Ct. No. FSB056642
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES LAMONT BAGSBY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Bernardino, Annemarie G. Pace, Judge. Affirmed.
A jury convicted James Lamont Bagsby of second degree murder with the use of a firearm and 10 counts of assault with a semiautomatic firearm. He was sentenced to 40 years to life for the second degree murder, consecutive to a determinate sentence of 67 years. Bagsby, who was a mildly retarded 15 year old at the time of the offense, appeals, challenging only the sentences imposed by the trial court. Bagsby contends the cumulative term of 107 years to life, which is equivalent to a life without parole sentence, constitutes cruel and unusual punishment in violation of the federal and state Constitutions. He also contends the trial court erred in selecting the upper term as the principal term for the assault offense and in selecting the upper term for the attendant firearm use enhancements.
This case presents the classic distinction between trial and appellate courts. Trial courts exercise sentencing discretion and appellate courts do not. Thus we are not presented with the question of what sentence would have been the best choice. Rather, we are asked simply to determine if the sentence was properly imposed and, if so, does the sentence violate the prohibitions against cruel and unusual punishment. After careful review of the record, we conclude the trial court properly stated reasons for its sentencing choices as to the determinate terms that it imposed. We also conclude that the cumulative sentence imposed for second degree murder and 10 counts of assault with a firearm and the attached enhancements is harsh, but not unconstitutional. Accordingly, we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Since Bagsby does not challenge either the admissibility or sufficiency of the evidence to support his convictions, we will set out only a brief summary of the facts in order to give context to the discussion which follows.
In the afternoon of June 21, 2006, Bagsby and three of his friends were sitting in the bleachers of Martin Luther King Middle School. All four of the boys were members of the Magnolia Estates street gang.
Shortly after Bagsby and his friends arrived at the middle school, a group of 11 young men, mostly Hispanic, arrived at the school to play basketball. Bagsby approached the group with a classic gang type greeting as to where they were from. Each of the group answered they were from "nowhere," meaning they were not affiliated with any gang. Bagsby apparently suspected at least one member of the group belonged to the West Side Verdugo gang.
Bagsby started walking back to the bleachers and then pulled a semiautomatic pistol from his waistband and began shooting at the group of young men on the basketball court. Although one of Bagsby's friends had yelled, "Don't shoot. Don't shoot," Bagsby fired eight to 10 times at the group. Bagsby and his friends then ran away.
Eleven-year-old Anthony Ramirez was struck in the back by one of the bullets and died shortly thereafter. Another youth was hit in the hand by one of the bullets. None of the other members of the group was injured.
Defense
Bagsby testified he had been drinking and smoking marijuana prior to the shooting He said that someone mentioned that one of the males was a member of the West Side Verdugo gang. Bagsby said he heard someone say, "No. Watch out. No, Blood." He said he was afraid someone would shoot him so he pulled his gun and began shooting without looking. When he realized nobody was shooting he ran away. Bagsby also denied he heard anyone say don't shoot.
The defense called a neuropsychologist who testified that Bagsby had an I.Q. score of 79 and that he suffered from posttraumatic stress disorder.
DISCUSSION
I
CRUEL AND UNUSUAL PUNISHMENT
Relying basically on In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), and to a lesser extent on the Eighth Amendment as applied to the states through the Fourteenth Amendment, Bagsby claims his 107-year-to-life term for his second degree murder and 10 counts of assault with a firearm is the equivalent of a life without parole sentence, thereby constituting cruel and/or unusual punishment under the United States and California Constitutions, principally because of his age at the time of the offense.
In re Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed. (In re Lynch, supra, 8 Cal.3d at pp. 429-438.) Under the first prong, the California Supreme Court examined the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) After its analysis, the court there held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at p. 439.)
In Dillon the California Supreme Court reaffirmed In re Lynch, supra, 8 Cal.3d 410, and concluded that under the facts of that case, the life imprisonment of a 17-year-old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine "not only the offense in the abstract[,]" but also "'the facts of the crime in question.' [Citation.]" (Id. at p. 479.) Courts should consider "the totality of the circumstances" including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Ibid.) With respect to the nature of the offender, a court should ask whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
The prohibition against cruel or unusual punishment is contained in California Constitution, article I, section 17.
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Bagsby did not raise this claim in the trial court. Although the claim is thus technically waived (see People v. Kelley (1997) 52 Cal.App.4th 568, 583), it is also without merit. Bagsby's failure to raise the issue of cruel and unusual punishment in the trial court deprived the trial judge of the opportunity to address the issue and either grant relief or provide us with that court's perspective on the validity of the cumulative punishments imposed in this case. However, given the significance of the issue we will address it on the merits.
As to California's separate constitutional prohibition against cruel or unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and the courts may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate the constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676 and citing In re Lynch, supra, 8 Cal.3d at p. 424.)
As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criterion depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, at pp. 479, 482-488; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, at p. 1196.)
Here, Bagsby has not met that burden. As noted above, Bagsby's punishment is controlled in the first instance by the nature and number of the offenses for which he has been convicted. Although he acknowledges the serious nature of those offenses, Bagsby contends his age, social background, and limited mental capacity prohibit the imposition of a cumulative sentence equivalent to life without parole, even if the offenses are serious, include a homicide and the use of a firearm. Acknowledging his age and social limitations, we nonetheless conclude the punishment in this case was lawfully imposed.
In People v. Em (2009) 171 Cal.App.4th 964, 975, the court dealt with a 50-year-to-life sentence for a 15-year-old gang member who had been convicted of first degree murder as an aider and abettor. The majority compared the sentence to other cases in which persons under the age of 18 were given long sentences. The court cited People v. Guinn (1995) 28 Cal.App.4th 1130, where a 17 year old was sentenced to a term of life without parole for murder committed during a robbery. Evaluating the defendant and the nature of the offense the court in Em held that notwithstanding his youth and immaturity, the lengthy sentence imposed on an aider and abettor was constitutional. (Em, supra, at pp. 976-977.)
Bagsby relies in part on Dillon, supra, 34 Cal.3d 441, 479, to support his argument that his sentence is unlawful. The defendant in Dillon was a 17 year old who joined with a group of teenagers to steal marijuana plants from an illegal marijuana farm. The group encountered an armed guard and in the confusion Dillon fired his weapon, killing the guard. Dillon was convicted of first degree murder on a felony murder theory. The trial court expressed frustration on being required to impose a sentence the court believed was too harsh.
The Supreme Court in Dillon, supra, 34 Cal.3d 441 discussed the harsh nature of the felony murder rule and found, under the unique circumstances of that case, that a first degree murder sentence was in violation of California's prohibition against cruel and unusual punishment. This case is different from Dillon.
Although Bagsby shares the characteristics of youth and immaturity, the crimes in this case are different. In the mindless nature of street gang activity, Bagsby opened fire on a group of young men for no other reason than he thought one of them "might be" a rival gang member. Further, Dillon committed and was convicted of one offense. Bagsby not only committed murder with a firearm, he intentionally assaulted 10 other people with that firearm. It is a miracle that more people were not killed or injured. The miracle does not mitigate Bagsby's culpability nor does it diminish the tragedy of the killing of an innocent 11-year-old boy.
We do not find the harsh sentence imposed here to be in violation of California's prohibition against cruel and unusual punishment.
Turning then to an examination of the Eighth Amendment and its prohibition against cruel and unusual punishment, we note that it has been determined that the Eighth Amendment prohibits states from imposing punishments that are grossly disproportionate to the severity of the crimes. (Ewing v. California (2003) 538 U.S. 11, 20-21.)
Bagsby does not seriously contend that the sentences on the individual counts were unconstitutional. Other than his argument the trial court erred in selecting the upper term for the principal count in the determinate sentences, Bagsby cannot successfully challenge the individual sentences which are within the range of appropriate sentences for each individual crime. Rather, Bagsby argues that the cumulative effect of imposing sentences resulting in a term of 40 years to life, consecutive to a 67-year determinate term amounts to a life without parole sentence. From that premise, Bagsby reasons a life without parole term cannot lawfully be imposed on a person who was 15 years old at the time of the offense.
Bagsby relies principally on Graham v. Florida (2010) ____ U.S. ____ (Graham). In that case the Supreme Court announced a categorical prohibition against life without parole sentences for persons under 18 who commit nonhomicide offenses. Graham does not assist Bagsby in this case.
The court in Graham made it very clear that the new rule is specific to non-homicide offenses. The court said: "Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a nonhomicide but who was at the same time convicted of homicide is not in some sense being punished for the homicide when the judge makes the sentencing decision. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense." (Graham, supra, 130 S.Ct. at p. 2023; italics added.)
Given that the categorical limitation of Graham, supra, 130 S.Ct. 2011, does not apply here, we are left with a juvenile offender who was convicted of 11 serious crimes, including murder, all committed with the use of a semiautomatic firearm. It is the number and seriousness of the offenses that permitted the trial judge to impose a sentence which is equivalent to a life without parole term. Although other judges might have mitigated the sentence by sentencing some counts concurrently, the court acted well within its discretion in sentencing on each of the 11 felonies. The cumulative sentence of 107 years to life is not grossly disproportionate to the offenses committed or the manner of their commission.
II
SELECTING THE UPPER TERM FOR COUNT 4 AND
THE FIREARM ENHANCEMENTS
Bagsby contends, for the first time on appeal, the trial court erred in failing to state reasons for the imposing the upper term of nine years for count 4 and for imposing the upper term for each of the firearm allegations on the assault counts. We find the issue forfeited for failure to raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)
Bagsby claims he did not have an adequate opportunity to object in the trial court, a position belied by the record. At the outset of the sentencing the trial court said, "Let me go over the factors that are influencing the sentence I am about to impose." The court noted all of the factors in aggravation that it considered appropriate, rejecting some as offered by the probation report. Plainly Bagsby could have objected to any of the factors he deemed inappropriate. The court had considered Bagsby's statement in mitigation as well as the probation officer's report. Thus, we conclude that the forfeiture rule announced by our Supreme Court in Scott, supra, 9 Cal.4th 331, applies to this sentencing.
Even if we considered the merits of the claim we would find no abuse of discretion. Among other items considered by the court, the trial judge identified Bagsby's poor performance on probation, the crimes involved great violence, and there were multiple victims.
A single, valid reason is sufficient to support a trial judge's sentencing choice. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Although the trial court did not make an express weighing of the competing factors, we will presume the judgment is correct where the record is otherwise silent. (People v. Giordano (2007) 42 Cal.4th 644, 666.) The record is silent in some respects because Bagsby failed to object to any of the trial court's decisions or the reasons for them, underscoring the value of the forfeiture rule of Scott, supra, 9 Cal.4th 331. Had there been any objection the trial court could correct any error or provide the reviewing court with an analysis, which would assist in a meaningful review of the trial court's exercise of discretion. The failure to object at trial has deprived us of that information.
In sum, we find the issue of the trial court's choice of upper terms for count 4 and the firearm enhancements for the assault charges has been forfeited by failure to raise it at trial. In any event, the trial court did state adequate reasons for its sentencing choices. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
AARON, J.