Opinion
E073473
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. BILLY WAYNE CIGGS, JR., Defendant and Appellant.
Billy Wayne Ciggs, Jr., in pro. per.; and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF110879) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Billy Wayne Ciggs, Jr., in pro. per.; and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant, Billy Wayne Ciggs, Jr., guilty as charged of shooting at an occupied motor vehicle (Pen. Code, § 246, count 1) and four counts of assault with a firearm (§ 245, subd. (a)(2), counts 2-5). In connection with all five counts, the jury also found true the special allegations that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)) and found true defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). (See People v. Ciggs (July 12, 2005, E036083) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise indicated.
By order dated December 24, 2019, we granted defendant's request to take judicial notice of our nonpublished opinions in defendant's prior appeals in case Nos. E036083, E064606, and E070212.
On remand from this court for the second time (see People v. Ciggs (Jan. 23, 2019, E070212) [nonpub. opn.]), the trial court resentenced defendant to imprisonment for an indeterminate term of 15 years to life (count 1), and a determinate term of 22 years eight months (counts 2-5).
After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a statement of the facts, and identifying one potentially arguable issue: whether the court abused its discretion in imposing consecutive terms.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant contends his current sentence violates the Eighth Amendment proscription against cruel and unusual punishment because it sentenced defendant "to the remainder of his natural life." We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2003, after a fight broke out at a party, defendant, who was at the party with members of his gang, shot at a vehicle containing four occupants who were leaving the party. None of the occupants were injured; however, the car was hit by three bullets, "one that entered the car near the gas tank on the driver's side; another broke the left tail light; and the third left a crease in the driver's door." (See People v. Ciggs, supra, E036083.)
When interviewed by police after the shooting, defendant denied he was the shooter. Defendant testified at trial where he also denied being the shooter. (See People v. Ciggs, supra, E036083.)
In June 2004, the trial court sentenced defendant to serve an indeterminate term of 15 years to life in state prison on count 1 and ordered the term to be served consecutively to a total determinate term of 29 years eight months the trial court had imposed on counts 2 through 5. That total determinate term included the aggravated term of four years on count 2, and the aggravated term of 10 years on the firearm enhancement imposed on that count. Defendant appealed, and this court affirmed the judgment. (See People v. Ciggs, supra, E036083.)
In October 2006, defendant filed a petition for writ of habeas corpus in the United States District Court for the Central District of California addressing a Sixth Amendment claim with regard to count 2's sentence. Some four years later, the district court granted defendant's petition in part, concluded the trial court violated the Sixth Amendment as interpreted in Cunningham v. California (2007) 549 U.S. 270 when it imposed an upper term of four years on count 2, and issued a writ of habeas corpus directing the trial court to resentence defendant on count 2. (See People v. Ciggs (Feb. 21, 2017, E064606) [nonpub. opn.].)
Neither the district attorney nor the superior court received notice of the federal court's order until five years later, when defendant filed a petition for recall of his sentence and resentencing. In September 2015, the superior court resentenced defendant to the same upper term of four years on count 2. Defendant timely appealed. (See People v. Ciggs, supra, E064606).)
On appeal, defendant contended, and the People conceded, that the trial court erred by imposing sentence enhancements on counts 2 through 5 under former section 12022.5 and section 186.22 for the use of a firearm. This court agreed, reversed the sentences as to counts 2 through 5, and remanded the matter for resentencing. (See People v. Ciggs, supra, E064606.)
The superior court did not act on the remittitur until it received a letter from defendant on June 7, 2017, inquiring about the status of his appeal. After numerous continuances, on February 9, 2018, the trial court resentenced defendant to 15 years to life (count 1), plus 27 years four months (counts 2-5), including imposition of a 10-year gang enhancement on count 3. (See People v. Ciggs, supra, E070212.)
On appeal from the resentencing, defendant contended that the court erred in imposing a full 10-year term of imprisonment on the gang enhancement on count 3 and failed to exercise its independent judgment when imposing sentence. We agreed that the court erred in imposing a full 10-year gang enhancement on count 3 and, in imposing sentence, "did not truly exercise informed, independent discretion." Therefore, we reversed the sentence as to count 2 through 5 and remanded the matter for resentencing. (See People v. Ciggs, supra, E070212.)
On August 8, 2019, on remand from this court, the court resentenced defendant to imprisonment for an indeterminate term of 15 years to life (count 1), plus a determinate term of 22 years eight months (counts 2-5). The determinate sentence consisted of the following: count 2—the upper term of four years to run consecutive to count 1, a consecutive 10 years on the gang enhancement (§ 186.22), and striking the gun enhancement (§ 12022.5); counts 3 and 4—a consecutive one-third the midterm (1 year each count), plus a consecutive one-third of 10 years (3 years 4 months each count) on the gang enhancements (§ 186.22), and striking the gun enhancements (§ 12022.5); and count 5—a consecutive one-third the midterm (3 years), plus 10 years on the gang enhancement (§ 186.22), stayed pursuant to section 654, and striking the gun enhancement (§ 12022.5).
At sentencing, the court stated: "Count 5, I will impose the midterm of three years, and I will impose the 10 years for the enhancement but stay the punishments for both of those pursuant to 654. And I would again strike the 12022.5 enhancement." However, the August 8, 2019 minute order and abstract of judgment indicate the entire sentence in count 5 was stayed. We direct the superior court to correct the minute order and felony abstract of judgment. --------
II. DISCUSSION
Defendant contends the sentence violates the Eighth Amendment proscription against cruel and unusual punishment because it sentences defendant "to the remainder of his natural life." We disagree.
First, defendant forfeited the contention his sentence constituted cruel and unusual punishment by failing to raise the issue below. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Second, defendant has, in all likelihood, not been sentenced to prison for the rest of his life. Defendant was 19 years old when charged in the instant case. The court awarded defendant 407 days of total credit when it originally sentenced him. Thus, even assuming defendant has not and will not earn any further credits, defendant will be approximately 55 years old when he first becomes eligible for parole.
Third, defendant's sentence is not disproportionate when compared to other crimes for which substantial sentences have been imposed and upheld. (Rummel v. Estelle (1980) 445 U.S. 263, 265-266, 268-286 [life sentence for credit card fraud of $80, passing a $28.36 forged check, and obtaining $120.75 by false pretenses not cruel and unusual]; Harmelin v. Michigan (1991) 501 U.S. 957, 961, 995 [life sentence for possession of 672 grams of cocaine not violative of 8th Amend.]; Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece upheld]; Lockyer v. Andrade (2003) 538 U.S. 63, 66 [two consecutive 25-year-to-life terms for two separate thefts of less than $150 worth of videotapes upheld].) Here, defendant fired multiple shots at a vehicle containing four people; three bullets struck the car. His offenses are far more serious than those in other cases in which substantial and even lengthier sentences were imposed and upheld. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.