Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA085192, Eleanor J. Hunter, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant James Russell Cernogg, Jr., guilty of first degree murder and found true gun and gang enhancement allegations. The prosecution’s theory as to Cernogg was he aided and abetted the murder of Michael Pimental. On appeal, Cernogg contends, first, that there is insufficient evidence to support his liability as an aider and abettor for Pimental’s murder. Second, he contends that the trial court failed to instruct the jury on a lesser included offense of second degree implied malice murder and also failed to instruct the jury that he could be convicted of a lesser offense than the direct perpetrator. Third, he contends that imposition of sentence for a weapons use allegation under Penal Code section 12022.53, subdivision (d), violates the multiple conviction rule and federal double jeopardy. Finally, he contends that his sentence, 50-years-to-life, is cruel or unusual punishment under the California Constitution. We disagree with these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On May 11, 2006, Camilo H. (“Dust”) and Michael Pimental (“Rest”) were hanging out with some friends, including Michael Morales. Later that night, around 9:30 or 10:00 p.m., Camilo and Pimental went for a walk down Rosecrans at Poinsettia to do some tagging. Camilo wrote “Dust” on a wall.
At the time of these events Pimental was 15 and Camilo was 12.
Defendant, who was on a bicycle, approached and asked why they were writing on the wall and where did they live. Camilo told him, “ ‘My bad.’ ” Defendant told Camilo and Pimental to “ ‘[c]ome on’ ” with him. Camilo did not see defendant with a gun, but he thought he might have one. They walked on Rosecrans towards Sloan, and defendant “chirped” his friend on a phone. The first and second times defendant called, there was no answer, but the third time he called, somebody answered. Defendant said, “ ‘I got them right [here],’ ” and he was told to “ ‘[h]old them right there.’ ” Defendant told Camilo, “ ‘I’m going to kill you and your mom.’ ” During this time, defendant did not claim a gang or reference the Elm Street Piru gang.
At trial, Camilo identified defendant as the man on the bike.
Within minutes, defendant Jeffrey Martin came from the other side of the street. Camilo had seen Martin around and knew him as “Slick.” Martin held a gun, which he covered with a rag. Without a word to anyone, including to Cernogg, Martin pointed the gun at Pimental, who said “ ‘No, don’t shoot.’ ” Standing no more than three feet away, Martin shot Pimental once in the head. Pimental died.
Pimental died from a single gunshot to the head. According to the autopsy, the weapon’s muzzle was within inches of Pimental’s head when the gun was discharged. The bullet, which was recovered from Pimental’s head, could have been fired from a 380, a 9-millimeter Luger, a.38 special or a 357 Magnum. The characteristics of the bullet are more consistent with a 380 semiautomatic.
Leaving his bike at the scene, Cernogg ran away. Martin walked away, but he and Cernogg went in the same direction, towards Poinsettia. Camilo also ran, until police officers stopped him. They took Camilo to the station, where they showed him photographs. He identified Martin as the shooter, and Cernogg as the person on the bike.
In a subsequent live line-up, Camilo identified Martin as the shooter.
Michael Morales witnessed some of these events. Around 10:00 p.m., he went to look for his mother, who had gone to the store. He saw Camilo and Pimental, who looked worried. Morales noticed the word “Dust” on a wall, and he wondered if they had just put it there. He saw a Black man on a bike approach Camilo and Pimental and say something to them. Morales asked Pimental if he had seen his mother, and Pimental asked Morales to go with them. The man on the bike, however, asked Morales if he wanted “ ‘some problems, too,’ ” and “ ‘[y]ou better go back.’ ” He pulled up his shirt to expose a gun. The man also said something about teaching them a lesson: “ ‘I’m going to teach these little fools a lesson not to write in my hood again.’ ” At trial, Morales said he did see the person on the bike in court.
Morales testified he told the police that the man on the bike had a gun. But the parties stipulated that neither during his interview on May 13, 2006 nor in subsequent interviews, did Morales tell a detective that the man on the bike pulled up his shirt to display a gun in his waistband.
DNA samples were retrieved from the bicycle left at the scene of the crime. Cernogg was a possible contributor to the DNA. As to one DNA sample, one of 24,940 African-Americans could have contributed to that DNA. As to a second DNA sample, one out of 15,140 African-Americans could have contributed to it.
Gavin Pinchbeck, a representative from Sprint Corporation, testified about wireless communication. “[C]hirping” is another term for direct connect. By pushing a button on a direct connect phone a person can instantly connect with another phone, similar to a walkie talkie. Pinchbeck, examined records for two direct connect numbers: 12692614669 (“669”) and 126924119 (“119”). These two numbers are for boost prepaid phones, meaning that no credit process is necessarily used to verify the name in which the phone is bought. The subscriber for phone 669 was Eric Anderson with an address of 611 North Poinsettia, Compton, which is the address Martin identified as his to an officer in 1997. Phone 669 also has a cell phone number: (310) 695-1837. In 2006, Martin told his parole officer that his phone number was (310) 695-1837. The subscriber for phone 119 was Kieth Wilson at 914 South Locust Avenue, Compton.
Officers received a shots fired call at approximately 10:10 p.m. Just after 10:00 p.m. to just after 11:00 p.m., six calls were made from 119 to 669 (10:16:47; 10:17:06; 10:17:36; 10:18:57; 10:43:52; and 11:01:52). Three calls were made from 669 to 119 (10:18:59; 10:45:23; and 10:47:49). Because of the density of the area in which the calls were made, the range for the calls would be about within two miles of two towers. Direct connect number 12692115117 (117) is registered to James Ternogg. Calls were made from 117 to 669 at 10:04:05; 10:07:26.
On May 15, at 11:11 a.m., 2:31 p.m. and 5:16 p.m., (310) 940-1848 placed a call to (310) 695-1837 (669). On May 16, (310) 695-1837 (669) received calls from (310) 621-1833, a number registered in the name of Keina Silas, who is Martin’s girlfriend.
After he was arrested for Pimental’s murder, Martin’s jail cell conversations were monitored and recorded. In one conversation, Martin sang rap lyrics he wrote: “we don’t do drive-bys, walk up on you now, it’s a homicide”; I’ll be on that chirp”; “ ‘Those chirps boy, will have your ass laid out. Chirps, man, chirps they made that, that’s some cold shit. That’s to get a nigga into quick in contact with a nigga . . . though you ain’t got to wait for the phone to ring, pick it up or none of that. But, ready to bust through.’ ”
Before Pimental was murdered, Deputy Timothy Brennan had contact with Cernogg on April 27, 2006 in an area that was a known Elm Lane Piru area. Cernogg or his companion ran into an alley and threw away a beer. The deputy filled out an identification card for Cernogg. He suspected that Cernogg of being an associate of the Elm Lane Piru gang. A person that is an “associate” is someone who just hangs out with the gang. But once an associate starts committing criminal acts with the gang, he or she is working in concert with the gang.
Detective Peter Hecht has been a gang investigator for seven years. He is familiar with the Elm Street or Elm Lane Piru gang in Compton. The gang’s symbols include ESP and ELP and Piru and Elm. Graffiti is a way of marking the gang’s turf. Elm has less than 50, but more than 3 members and the gang’s turf borders Compton Boulevard to the South, Rosecrans Avenue to the North, Long Beach Boulevard to the East, and Santa Fe Avenue to the West. Once a gang establishes its territory, the vast majority of crimes the gang commits occur inside their turf, where they have a hold on the community. The gang’s primary activities include murder, robberies, armed assaults, and carjackings and narcotic sales.
There is a difference between taggers and gang members. Taggers are young and generally commit vandalism type crimes. If someone tags in a gang’s neighborhood on top of that gang’s own graffiti that is seen as a challenge, as disrespecting the gang. If the tagger is caught, there is almost always some type of confrontation or challenge—“they’re going to hit them up” and “usually these types of confrontations end violently.” But not all such confrontations will turn violent: “Sometimes it’s just a matter of the gang members telling the vandals, you know, hey, get out of our neighborhood. You cannot tag our neighborhood.” Nonetheless, such confrontations can end in murder and “frequently” they result in gunfire.
Detective Hecht arrested Martin on other occasions and had contacts with him in the field. In the detective’s opinion, Martin is an Elm Street Piru gang member. Martin, whose moniker is Slick, self-admitted his gang membership to the detective. The detective, however, never met Cernogg outside of the current court proceedings. But, based on Cernogg’s contacts with other deputies while in the company of Elm Street Piru members, Detective Hecht believes that defendant is an associate of the gang.
Detective Hecht was presented with the following scenario: Two young Hispanic males go to the area of Rosecrans and Poinsettia after 10:00 p.m and tag property that already contains Elm Street Piru graffiti. While tagging, Cernogg stops them, asking, “why are you writing” or “why are you tagging my wall.” The young men say, “ ‘my bad,’ ” and Cernogg tells them to come with him. Cernogg uses a chirp phone, and eventually reaches someone whom he tells, “I just caught them.” The person on the other end tells Cernogg to “ ‘[h]old them, I’ll be right there[.]’ ” Armed with a gun, Martin soon arrives and shoots one boy.
Based on these facts, Detective Hecht testified it his opinion that the crime was committed for the benefit of, at the direction of, or in association with Elm Street Piru. The crime was committed to maintain respect for the gang. If Cernogg did not punish them, he could potentially be himself subjected to punishment by his own gang. Chirping an Elm Street Piru gang member (Martin), shows that Cernogg was working in concert with him.
II. Procedural background.
Trial was by jury. On March 5, 2008, the jury found Cernogg guilty of first degree murder (Pen. Code, § 187, subd. (a)). The jury found true gun use allegations (§ 12022.53, subds. (b), (c), (d), (e)(1)) and a gang enhancement allegation (§ 186.22, subd. (b)(1)(A)).
All further undesignated statutory references are to the Penal Code.
The jury also found Martin guilty of first degree murder and of related gun and gang enhancement allegations.
On August 18, 2008, the trial court sentenced Cernogg to 25 years to life for the murder of Michael Pimental plus an additional 25 years for the gun use enhancement (§ 12022.53, subds. (d), (e)(1)).
DISCUSSION
I. There is sufficient evidence that Cernogg aided and abetted the murder of Pimental.
The prosecution’s theory of guilt as to Cernogg was he aided and abetted Pimental’s murder. The prosecutor thus argued that Cernogg was guilty as an aider and abettor under one of two theories: first, he acted with knowledge of Martin’s intent to commit murder or, second, murder was the natural and probable consequence of the target crime—felony false imprisonment—Cernogg intended to facilitate. Defendant contends that there is insufficient evidence to support the judgment under either theory. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, . . . that . . . does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
An aider and abettor’s liability for criminal conduct is of two kinds. “First, an aider and abettor with the necessary mental state is guilty of the intended crime.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) To prove liability under this first type, the prosecution must show that the defendant “acted ‘with knowledge of the criminal purpose of the perpetration and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) The second kind of aider and abettor liability occurs when an accomplice assists or encourages one crime (the target offense), and the confederate commits a more serious offense (the nontarget offense). (Ibid.) Thus, an aider and abettor “is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (McCoy, at p. 1117.)
There is sufficient evidence to support the judgment against Cernogg under either theory of aider and abettor liability. First, there is evidence that Cernogg intended to aid and abet Pimental’s murder. Martin was a known member of the Elm Street Piru gang, and Cernogg was a suspected associate of the gang. On the night of Pimental’s murder, defendant was riding his bike in gang territory. When he stopped Pimental and Camilo, he told them to come with him. Then, he chirped someone, Martin, who told Cernogg to “hold them” there. Cernogg followed Martin’s orders. Moreover, Cernogg stated his intent to Camilo: He told Camilo, “ ‘I’m going to kill you and your mom.’ ” This clearly evidences Cernogg’s intent to harm Camilo and Pimental, and it is immaterial that there is no evidence he directly threatened Pimental or that Camilo’s mother was not present. It is certainly a fair inference that Cernogg’s threat to kill Camilo shows that Cernogg intended harm to someone, i.e., Camilo and/or Pimental.
That Cernogg intended harm is further evidenced by his threat to Michael Morales, a friend of Pimental’s and Camilo’s who happened to wander by. Cernogg told Morales that unless he too wanted “ ‘some problems,’ ” he had “ ‘better go.’ ” Cernogg lifted his shirt to reveal a gun, and he said something to the effect of, “ ‘I’m going to teach these little fools a lesson not to write in my hood again.’ ” This evidence is more than sufficient to show that Cernogg shared Martin’s intent and purpose; hence, he is liable as a direct aider and abettor of Pimental’s murder.
Alternatively, it is also possible that Cernogg did not know that Martin intended to execute Pimental. Perhaps, as Cernogg suggests in his opening brief, he thought Martin would merely give the young boys a “stern warning.” Even so, there is still evidence to support the judgment under the natural and probable consequences doctrine. Under that doctrine, the question is not whether Cernogg actually foresaw the murder, but whether, judged objectively, the murder was reasonably foreseeable. (People v. Medina (2009) 46 Cal.4th 913 (Medina).) After catching Pimental and Camilo in the act of tagging, Cernogg told them to come with him, and according to Morales, Cernogg had a gun. This evidence more than amply supports a conclusion that Cernogg falsely imprisoned Pimental and Camilo, holding them until Martin showed up.
Was the murder a natural and probable consequence of the false imprisonment? Given that Cernogg said he was going to teach Pimental and Camilo a lesson and that he was waiting for Martin, a member of the Elm Street Piru gang, to come and to give them that lesson, the answer is yes. Moreover, the People’s gang expert, Detective Hecht, confirmed that although a violent end may not always result from such a confrontation, “frequently” they do end in gunfire and murder.
Our conclusion that Pimental’s murder was a natural and probable consequence of Cernogg’s false imprisonment of Pimental and Cernogg is supported by Medina, supra, 46 Cal.4th 913. In that case, Medina and three of his friends were at a party. Medina and two of his three friends were gang members. While they were all at the party, the victim came to the door. Someone asked the victim, “ ‘Where are you from?’ ” The victim named his gang, and a fistfight erupted between him and Medina and his three friends. The fight was broken up, and the victim left in a car. Medina, however, got a gun and shot at the victim’s car as it drove away. The victim was shot in the head and died. (Id. at pp. 916-917.)
Medina and his three friends were all charged with first degree murder, the theory being that Medina was the direct perpetrator and the three friends were guilty as aiders and abettors. (Medina, supra, 46 Cal.4th at p. 917.) A jury found Medina and two of his friends guilty as charged and found true a gang allegation. The Court of Appeal reversed the judgment against the two aiders and abettors, finding that there was insufficient evidence that the nontarget crimes of murder and attempted murder were a reasonably foreseeable consequence of the simple assault, the target offense they aided and abetted. Our California Supreme Court disagreed. Emphasizing the nature of gang confrontations, the court noted that, in that specific context, it is not necessary for there to have been a prior discussion of or an agreement to a shooting or even for a gang member to know that a fellow gang member is armed. (Medina, at p. 921.) The precise consequence need not be foreseen. (Id. at p. 927.) “[T]he ultimate factual question is one of reasonable foreseeability, to be evaluated under all the factual circumstances of the case.” (Ibid.)
Under all of the factual circumstances here, which we have laid out above, there was sufficient evidence from which the jury could have concluded that it was reasonably foreseeable Pimental would be murdered. Here, as in Medina, the incident took place in the context of gang culture, in which the victim disrespected a gang’s turf by tagging in it. A gang expert testified that being caught tagging in another gang’s territory could lead to severe consequences, including death. Although there was no direct evidence that Cernogg was a gang member, he was in the company of one, Martin. He also revealed himself to be familiar with gang culture because he told Pimental and Camilo there would be consequences for their vandalism. Whether he thought it would be just a stern warning, a beating or murder, any of those outcomes were reasonably foreseeable.
II. The jury was adequately instructed on second degree implied malice murder and aiding and abetting.
Cernogg’s next contention is instructional error precluded the jury from finding him guilty of second degree implied malice murder. We disagree.
The jury was instructed on aiding and abetting with CALJIC Nos. 3.00, 3.01 and 3.02. CALJIC No. 3.00 provides: “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include, number one, those who directly and actively commit the act constituting the crime, or two, those who aid and abet the commission of the crime.” (Italics added.) Based on this instruction, Cernogg argues that the instructions given “misled the jury into believing that Cernogg’s degree of culpability was inexorably linked to Martin’s.”
“A person aids and abets the commission of a crime when he, number one, with knowledge of the unlawful purpose of the perpetrator, and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime; and three, by act or advice aids, promotes, encourages, or instigates the commission of the crime. [¶] A person who aids and abets the commission of a crime need not be present at the crime scene. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding [or] abetting.” (CALJIC No. 3.01.)
In other words, Cernogg is arguing that he, as an aider and abettor, could be guilty of a lesser offense—i.e., second degree implied malice murder—than the offense committed by the direct perpetrator. People v. McCoy, supra, 25 Cal.4th 1111, speaks indirectly to the issue. In that case, the court took note of the two types of aider and abettor liability: (1) An aider and abettor with the necessary mental state is guilty of the intended crime and (2) an aider and abettor is guilty not only of the intended crime, but of any other offense that is a natural and probable consequence of the crime aided and abetted. At issue in McCoy was the first type of aider and abettor liability. Discussing that type of liability only, the court concluded that an aider and abettor could be found guilty of an offense greater than that committed by the direct perpetrator. It did not discuss whether an aider and abettor could be found guilty of a lesser offense.
That issue, in the specific context of the natural and probable consequences doctrine, was discussed in People v. Woods (1992) 8 Cal.App.4th 1570 (Woods). In that case, defendants Windham and Woods set out to find a rival gang member. After assaulting some people along the way, Woods shot two men. At Windham’s and Woods’ joint trial, the prosecution’s theory was Windham aided and abetted Woods, the direct perpetrator. The trial court instructed the jury on, among other things, murder in the first and second degree. The jury was also instructed on aider and abettor liability, including such liability under the natural and probable consequences doctrine—CALJIC Nos. 3.00, 3.01 and 3.02. During deliberations, the jury asked if an aider and abettor can be found guilty of second degree murder if the actual perpetrator was found guilty of first degree murder. (Woods, at p. 1579.) The court told the jury, “ ‘No.’ ” The jury found both defendants guilty of first degree murder.
Windham argued that the trial court misinstructed the jury. The Court of Appeal agreed. It said that “in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence[,]” otherwise, the jury would be given the all or nothing choice of either convicting the aider and abettor of the same crime as the direct perpetrator or of acquitting him, though guilty of a lesser offense. (Woods, supra, 8 Cal.App.4th at p. 1588.) Thus, a trial court has a sua sponte duty to instruct on a necessarily included offense if the evidence would support such a finding, but there is no such duty if the evidence establishes that the aider and abettor, if guilty at all, is guilty of something beyond the lesser offense. (Id. at p. 1593; see also People v. Hart (2009) 176 Cal.App.4th 662; People v. Blackwood (1939) 35 Cal.App.2d 728, 733 [“We do not believe that the rule that the two principals are equally guilty is so inflexible that a jury might not find them guilty of different degrees of crime even though they are tried jointly. For the evidence against them is not necessarily precisely the same”].)
Relying on Woods, Cernogg argues that there was sufficient evidence that he too was guilty of something less than first degree murder, namely, second degree implied malice murder. But, based on CALJIC No. 3.00 and the failure of either the trial court sua sponte to give CALJIC No. 8.31 (the second degree implied malice murder instruction) or of his trial counsel to ask for CALJIC No. 8.31, the jury was never given the option of finding him guilty of the lesser offense. (See generally, People v. Breverman (1998) 19 Cal.4th 142, 162 [a court must “instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence”].)
There are several important distinctions between this case and Woods. First, the option of convicting Cernogg of second degree implied malice murder was given to the jury. True, the jury was not given CALJIC No. 8.31, which provides: “Murder of the second degree is [also] the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an [intentional] act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.”
We will assume for the purposes of argument only that there was sufficient evidence to support the giving of such an instruction.
The jury was also not given CALJIC No. 8.30: “Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” It is unclear whether Cernogg contends that this instruction too should have been given.
But the jury was instructed on first and second degree murder via CALJIC Nos. 8.10, 8.11, 8.20, 8.70, 8.71 and 8.74. CALJIC No. 8.20 informed the jury that first degree murder is murder perpetrated with express malice. The jury was also instructed on implied malice in CALJIC No. 8.11, which is similar to CALJIC No. 8.31. CALJIC No. 8.11 provides: “ ‘Malice’ may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.” Our California Supreme Court has recently said that CALJIC No. 8.11 “contains everything necessary to fully instruct the jury on this form of [implied] malice as a possible theory of second degree murder.” (People v. Chun (2009) 45 Cal.4th 1172, 1202.) We therefore reject defendant’s argument that the jury was not adequately instructed on second degree implied malice murder.
“All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.”
“Murder is classified into two degrees,” first and second.
The discussion of CALJIC No. 8.11 in Chun was in a different context than the one before us. Chun considered, first, whether shooting at an occupied vehicle merges with the charged homicide. The court found that it does merge; hence, it cannot be the basis for a second degree felony-murder instruction. (People v. Chun, supra, 45 Cal.4th at p. 1200.) The court next considered whether the error in instructing the jury on second degree felony murder was harmless. It was in this context that the court discussed whether CALJIC No. 8.11 contains everything necessary to fully instruct the jury on implied malice as a theory of second degree murder.
Second, nothing in this case suggests that the jury failed to understand that they could convict Cernogg of something less than first degree murder. (See, e.g., People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 [an aider and abettor may be found guilty of an offense lesser than that of the direct perpetrator].) In Woods, the jury specifically asked whether they could convict the aider and abettor of a lesser offense than the direct perpetrator and were told “no,” they could not. The jury here never asked such a question or indicated it was confused on the point. A response to this might be that the jury failed to ask the question because it mistakenly believed, based on CALJIC No. 3.00’s statement that principals are “equally guilty” meant that they had no option but to fix the degree of murder at first. We do not think that likely given our conclusion that the jury was adequately instructed on second degree implied malice murder. Moreover, the error in Woods did not arise from instructing the jury with CALJIC No. 3.00. It arose from the trial court expressly prohibiting the jury from finding the aider and abettor guilty of second degree murder if they found the direct perpetrator guilty of first degree murder. No such error occurred here; therefore, the trial court did not have sua sponte duty to give CALJIC No. 8.31 and trial counsel was not ineffective for failing to request it.
The Samaniego jury was given CALCRIM No. 400, which is virtually identical to CALJIC No. 3.00 with respect to its “equally guilty” language.
To show ineffective assistance of counsel, the defendant-appellant must show that trial counsel’s conduct fell below the standard of care and that there is a reasonable probability that but for such errors the result of the case would have been different. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Because the jury was adequately instructed on second degree implied malice murder and aiding and abetting liability, counsel’s conduct did not fall below the standard of care.
III. Imposition of the weapons enhancement under section 12022.53, subdivision (d), does not violate the multiple conviction rule or federal double jeopardy.
The jury found true a weapons enhancement allegation under section 12022.53, subdivisions (d) and (e), and the trial court imposed a 25 years-to-life sentence. Cernogg now contends that imposition of that sentence violates both the proscription against multiple punishment (§ 654) and constitutional protections against double jeopardy (U.S. Const., 5th & 14th Amends.). Cernogg acknowledges that his contentions have been rejected by the California Supreme Court (People v. Sloan (2007) 42 Cal.4th 110, 114, 120-121; People v. Izaguirre (2007) 42 Cal.4th 126, 128-129, 134) and by the United States Supreme Court (Hudson v. United States (1997) 522 U.S. 93, 95-96; Missouri v. Hunter (1983) 459 U.S. 359, 365-366; Blockburger v. United States (1932) 284 U.S. 299, 304.) We are bound by the pronouncements of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we therefore reject Cernogg’s contentions.
IV. Cruel and unusual punishment.
Last, Cernogg contends that his 50 years- to-life sentence is cruel or unusual punishment under the California Constitution (Cal. Const., art. I, § 17). Under prevailing precedent, it is not.
“Cruel or unusual punishment may not be inflicted or excessive fines imposed.”
By failing to raise this argument in the trial court, defendant arguably forfeited raising it on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) We will nevertheless “reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.” (Id. at p. 230.)
Punishment is deemed cruel or unusual if it is so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); see also People v. Dillon (1983) 34 Cal.3d 441.) To determine whether a particular sentence is disproportionate to the offense for which it was imposed, we (1) examine the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (Lynch, at p. 425); (2) compare the challenged punishment with punishments prescribed for more serious offenses in the same jurisdiction (id. at p. 426); and (3) compare the punishment imposed with punishments prescribed for the same offense in other jurisdictions (id. at p. 427). Defendant must overcome a “considerable burden” in challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
Cernogg argues only that his sentence violates the first prong of the Lynch test. We examine both the seriousness of the crime in the abstract and “the totality of the circumstances surrounding the commission of the offense..., including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (People v. Dillon, supra, 34 Cal.3d at p. 479.) Cernogg suggests that what happened was mere “happenstance,” because nothing in the record suggests he knew that Martin would execute Pimental. To the contrary, the record shows that Cernogg’s role in Pimental’s murder was more than just passive. It was Cernogg who happened upon Pimental and Camilo; he called Martin and informed him he had captured taggers; he held them until Martin arrived; he threatened Pimental and Camilo, saying that he would kill Camilo and his mother; and he displayed a gun to Morales. As we discussed above, this evidence is more than sufficient to support a finding that Cernogg shared Martin’s intent to kill Pimental. Cernogg further suggests that his prior record was “of diminimus [sic] consequence.” While we agree that his prior record—a juvenile adjudication for possession of marijuana for sale and a parole violation—are not momentous, the current crime is.
We therefore conclude that Cernogg’s punishment was not so disproportionate “that it shocks the conscience and offends fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.
“One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crime of murder as charged in Count One, under this distinct theory, you must be satisfied beyond a reasonable doubt that:
“1. The crime of murder was committed;
“2. That the defendant aided and abetted that crime;
“3. That a co-principal in that crime committed the crime of murder; and
“4. The crime of murder was a natural and probable consequence of the commission of the crime of false imprisonment.
“In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.” (CALJIC No. 3.02.)