Opinion
B297563
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS CHAVEZ, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA140483) APPEAL from an order of the Superior Court of Los Angeles County, Olivia Rosales, Judge. Affirmed, with instructions. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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The jury found defendant and appellant Jesus Chavez guilty of murder. (Pen. Code, § 187, subd. (a).) It found true firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subds. (b)-(d)), and the special circumstance allegation of shooting from a vehicle with intent to kill under section 190.2, subdivision (a)(21).
All further statutory references are to the Penal Code unless otherwise indicated.
In a separate bench trial, the trial court found true the allegations that Chavez had suffered a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).
The trial court sentenced Chavez to life without parole for the murder, plus 25 years to life in prison for the firearm enhancement (§ 12022.53, subd. (d)), and 5 years for the prior serious felony enhancement (§ 667, subd. (a)(1)). The court did not award Chavez custody credit.
Chavez contends that the absence of a meaningful distinction between the elements of first degree murder by shooting from a vehicle and the elements of the shooting-from-a-vehicle special circumstance violates the Eighth and Fourteenth Amendments because the special circumstance does not sufficiently narrow the class of first degree murderers eligible for increased punishment. He also contends that the trial court erred by not awarding him custody credits.
We order that the abstract of judgment be modified to reflect that Chavez is awarded 1275 days of presentence custody credit. As modified, the trial court's judgment is affirmed.
DISCUSSION
As the issues raised are pure questions of law, we have omitted a recitation of the facts in this case.
Constitutionality of Shooting-from-a-Vehicle Special Circumstance
We agree with the parties that the issue is not moot, because the prosecutor argued that both premeditation and deliberation and shooting from a vehicle with intent to kill were valid theories of murder; nor was it forfeited, as the issue is a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
Chavez argues that section 190.2, subdivision (a)(21), which increases the penalty for first degree murder where the jury finds true the special circumstance that the defendant was shooting from a vehicle with intent to kill, violates the Eighth and Fourteenth Amendments because it does not narrow the class of defendants eligible for special circumstance treatment.
Section 189, subdivision (a) provides, "All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree."
Under section 190.2, subdivision (a)(21), "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true [¶] . . . [¶] [t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death."
Under the narrowing requirement of the Eighth Amendment, "a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty . . . .' [Citations.]" (Lowenfield v. Phelps (1988) 484 U.S. 231, 244.) However, the United States Supreme Court has held that this requirement only applies where the penalty is death. (Harmelin v. Michigan (1991) 501 U.S. 957, 995.) It does not apply to cases like Chavez's, where a sentence of life imprisonment without parole has been imposed. (Ibid.)
Chavez contends that our Supreme Court's decision in People v. Estrada (1995) 11 Cal.4th 568, 575-576 (Estrada) stands for the proposition that Eighth Amendment standards of disproportionality in sentencing apply regardless whether a defendant is subjected to the death penalty or life without parole. Chavez misreads Estrada. The Supreme Court's ruling there concerned the meaning of the phrase "reckless indifference to human life" as used in section 190.2, subdivision (d). The Estrada court held, in analyzing the adequacy of jury instructions relating to that phrase, there was no distinction between defendants based on the potential punishment sought. (Estrada, supra, 11 Cal.4th at pp. 575-576.) Estrada does not stand for the proposition that, in analyzing issues of proportionality under the Eighth Amendment, there is no distinction between a penalty of death and life without parole. --------
Therefore, the fact that the elements of murder by shooting from a vehicle and the shooting-from-a-vehicle special circumstance are identical, in the context of this case, is of no moment. As Chavez acknowledges, both the United States and California Supreme Courts have held that it is not unconstitutional for a special circumstance to duplicate elements of a conviction offense. (See Lowenfield v. Phelps, supra, 484 U.S. at pp. 243-244; People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Catlin (2001) 26 Cal.4th 81, 158-159.) Additionally, Chavez's specific argument has been rejected by Division Two of the Court of Appeal, Second Appellate District, in People v. Rodriguez (1998) 66 Cal.App.4th 157, 164. We agree with our sister court's conclusion, and we are bound by the opinions of the higher courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Custody Credits
At the sentencing hearing, the trial court noted that Chavez had accumulated credits for time served, but refused to award custody credit. The People concede, and we agree, that although Chavez is not entitled to pre-judgment conduct credits under section 2933.2, subdivision (c), that section does not preclude actual custody credit awarded for time served pursuant to section 2900.5. (People v. Taylor (2014) 119 Cal.App.4th 628, 646-647 [trial court erred by denying defendant presentence custody credit pursuant to section 2900.5 in reliance on section 2933.2].) Chavez was arrested on November 2, 2015, and sentenced on April 29, 2019, and, as both parties agree, he is entitled to 1,275 days of actual custody credit. We order the abstract of judgment modified accordingly.
DISPOSITION
The judgment is modified to reflect that Chavez is awarded 1,275 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.