Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment from the Superior Court in Los Angeles County No. NA058408. Joan Comparet-Cassani, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
George Collado (appellant) appeals his conviction for second degree murder. We find no merit to his sole argument that the sentence of sixteen years to life imprisonment constitutes cruel or unusual punishment for the murder of his grandmother. We affirm his conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Using a Phillips screwdriver, appellant killed his grandmother with whom he resided. She suffered six puncture wounds and four superficial wounds. Appellant was charged with first degree murder, and a weapon enhancement pursuant to Penal Code section 12022, subdivision (b)(1) was alleged. He pled not guilty and not guilty by reason of insanity. Appellant waived his right to a jury trial and the case was tried to the court.
Appellant also was charged with other crimes, which were dismissed.
I. Trial
Two weeks before the incident, appellant told his friend that “his grandma’s got some conspiracy against him, she’s always out to get him, she’s always making him do things that he didn’t want to do.” Appellant then pulled a screwdriver from his shorts and said, “ ‘I’m going to stab my grandma with this.’ ” Appellant said, “ ‘I hate her. I’m going to stab that bitch to death.’ ” Another friend of appellant’s heard appellant say he was going to kill his grandmother. Appellant said he was angry with his grandmother because she wanted him to stop using methamphetamine. Appellant’s neighbor remembered appellant entering his garage professing to be James Bond and talking in a muddled way about spies.
Immediately following the killing, appellant was restless and did not stay still. Appellant told a police officer that he was with the CIA. When interviewed by detectives, appellant said he saw Blackie and Tony. “Tony handed me my Phillips screwdriver, and they forced me to kill my grandmother in the cruelty way. He’s the Devil, himself. Then he told me to stab my grandmother . . . . [¶] So I -- I cried, as I was stabbing my grandmother, and I used my left hand, and I cried. I didn’t know what to do. I was hysterically (sic) same time gone suicidal, but, before I knew it, they were gone. [¶] I called 911 right away -- right away. Went hysterical in my mind what I just did, how they forced me to do it. Didn’t know how to react, but I was going suicidal, ‘cause I never killed nobody in my life.” Appellant said Blackie handed him the screwdriver and told him to “stab it to your grandma’s heart.” Appellant stabbed her with the screwdriver while she was still asleep. Appellant repeated several times that Blackie and Tony forced him to kill his grandmother.
When detectives asked appellant if it was wrong to kill someone, appellant responded “course it is.” He said that he knew the difference between right and wrong. When asked if it was wrong to stab his grandmother, appellant responded “it’s like someone hijacking a plane. And, you know what? It’s because he’s overpowered.” Appellant also told police officers that a kite in the wires near his house was a symbol that a gang was after him because he testified in 1997.
Extensive evidence regarding appellant’s mental health was presented at trial. Appellant’s friend testified that appellant “can come across as a person that’s coherent . . . then one minute later he can . . . just be like this insane guy.” Appellant’s cousin testified that appellant was always mentally slow and lacked social skills. His cousin and grandparents were concerned about appellant’s “very extreme” drug use. Once his cousin caused him to be placed in a Welfare and Institutions Code section 5150 hold after appellant was running around the house with a knife. Appellant’s cousin described appellant as paranoid.
Eric Rost, a licensed clinical social worker, treated appellant and testified appellant suffered from severe paranoia, depression, and a thought process disorganization. Rost testified that the psychosis could be a product of methamphetamine use and he could not distinguish whether appellant’s symptoms were caused by psychosis or by methamphetamine use.
Stephen Mohaupt, a psychiatrist testified for the defense. Mohaupt believed that appellant “probably” has schizophrenia. However, according to Mohaupt, appellant “has a complicating factor of using methamphetamine . . . That can produce symptoms that look very similar to schizophrenia.” Appellant had a long history of paranoia and was taking medicine as early as 1998 to treat this symptom. Dr. Mohaupt found it difficult to separate whether appellant’s mental condition was the result of schizophrenia or illicit drug use. He noted that, on one occasion when appellant attempted suicide, he tested positive for methamphetamine. Mohaupt explained, “you can presume that many of his symptoms and behaviors may, in fact, be due from his methamphetamine intoxication.” At the time of the killing, appellant’s “mental state looked comparable to what the documents describe over the years, which is he presented paranoid ideas. People were after him, following him, trying to kill him, threatening him.” It was possible that appellant was hallucinating. Appellant falsely believed that he was an agent from an embassy, suggesting that he suffered from a delusion and was mentally ill.
Mohaupt testified that “it appears that he [appellant] understood the nature and quality of his actions. [¶] The police and arrest report describe that he used a screwdriver to stab her in the chest, a sharp object. He spoke of placing it in his left or weaker hand so as to not cause as much damage.” With respect to whether appellant understood the wrongfulness of his conduct, Mohaupt opined that “there’s a lot of evidence to weigh on both sides.” The fact that appellant called the police and did not make a “serious” effort to escape suggested that he may not have known the wrongfulness of his conduct.
Mohaupt further explained, “[a]n individual with schizophrenia who is using amphetamines, the amphetamines will certainly worsen paranoia, hallucinations and the symptoms that a person experiences. And it may actually create new symptoms that they do not experience from their schizophrenia.” “Someone that has been smoking methamphetamine multiple days in a row, they haven’t sleep [sic] for a week, it’s not unusual for them to come into the psychiatric emergency room paranoid delusional, that the aliens are landing, having auditory hallucinations, and possibly visual hallucinations.”
Mohaupt thought it “possible” that appellant “was thinking clearly and logically” and planning the murder of his grandmother. But, the facts that he was paranoid, called for help, and did not attempt to flee suggested otherwise. Ultimately, Mohaupt concluded that he could not say that appellant was insane at the time he committed the offense.
II. Judgment
The court found appellant guilty of second degree murder and found the weapon allegation under Penal Code section 12022, subdivision (b)(1) to be true. It found there was not sufficient evidence of premeditation and deliberation to support first degree murder. The court concluded that appellant was not legally insane.
To reach its conclusion, the court relied on multiple facts showing that appellant knew the nature and quality of the act he committed including: “the fact that he stabbed the victim in an area where it is most likely to cause death; that is, not the center of the chest, not the right, but the left portion of the chest where the heart is located indicates to me that he knew that he was killing the victim.” The court found that appellant knew what he did was wrong in part because he told different versions of what happened to the police, the police interview indicates that appellant knew his choice was wrong even assuming that the hallucination he described occurred. The court however was “not convinced it did occur.” “It seems to me that the defendant is trying to minimize his complicity, and trying to minimize his actions, and trying to give himself a reason for doing what he did, which again, is evidence to me that he knew what he was doing was wrong.”
The probation report indicates appellant suffered prior convictions for burglary, two counts of petty theft with a prior; two counts of resisting a public officer, peace officer or emergency medical technician. Appellant’s counsel agreed to “submit on the sentencing as required.” The court sentenced appellant to 15 years to life for murder plus an additional year for the weapon allegation. Appellant timely appealed.
DISCUSSION
Appellant argues that “as a result of his severe mental problems, his individual culpability is so attenuated” to render his sixteen years to life sentence cruel and unusual punishment in violation of the state and federal constitutions. Appellant did not argue that his sentence is cruel or unusual in the trial court, and the issue is therefore forfeited. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Nevertheless, we consider his argument on the merits in order to forestall a claim of ineffectiveness of counsel. (Id. at p. 230.)
To argue that his sentence violates the California constitution, appellant relies heavily on People v. Dillon (1983) 34 Cal.3d 441 (Dillon). In that case the court found a sentence for felony murder of life imprisonment constituted cruel or unusual punishment under the California Constitution. (Id. at p. 489.) The court reduced the conviction to second degree murder. (Id. at p. 450.)
Dillon explained that a sentence violates article I, section 17 of the California Constitution if “it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender.” (Dillon, supra, 34 Cal.3d at p. 450.) “[P]unishment may violate the California constitutional prohibition ‘if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ ” (Id. at p. 478.)
We do not consider the gravity of the offense and harshness of the penalty or the sentences imposed on other criminals in the same jurisdiction because appellant does not argue those as a basis for his claim that his sentence is unconstitutional. (See People v. Cuevas (2001) 89 Cal.App.4th 689, 702.)
Dillon, an immature 17-year-old, had been convicted of first degree murder based on a felony murder theory. Because of the felony murder conviction, he was sentenced to life imprisonment without any consideration of his “individual culpability.” (Dillon, supra, 34 Cal.3d. at p. 477.) The high court stressed the difference between felony murder and premeditated murder: “in the case of deliberate and premeditated murder with malice aforethought, the defendant’s state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt; in the case of first degree felony murder it is entirely irrelevant and need not be proved at all.” (Id. at pp. 476-477.)
In Dillon, the jury had asked the court if it could convict Dillon of second degree murder if it found the murder occurred during the commission of a robbery. (Dillon, supra, 34 Cal.3d. at p. 484.) Dillon had attempted to take marijuana from a farm and, when found by the owner of the marijuana, began firing a rifle at him, killing him. (Id. at p. 452.) “[A]fter hearing all the testimony and diligently evaluating defendant’s history and character, both the judge and the jury manifestly believed that a sentence of life imprisonment as a first degree murderer was excessive in relation to defendant’s true culpability . . . .” (Id. at p. 487.) The record showed that “defendant was an unusually immature youth. He had no prior trouble with the law, and . . . was not the prototype of a hardened criminal who poses a grave threat to society.” (Id. at p. 488.)
In attempting to analogize this case to Dillon, appellant emphasizes his mental illness. But the court expressly found that appellant knew what he was doing when he repeatedly stabbed his grandmother with a screwdriver. Among other reasons, the court emphasized that appellant stabbed his grandmother in the area most likely to cause death and gave varying stories to investigating officers in an effort to minimize his culpability. Although there was testimony that appellant probably suffers from schizophrenia, it was impossible to delineate whether appellant’s mental condition was a result of the schizophrenia or his long term drug use. In addition, although there was evidence that appellant suffered form delusions, the trial court was “not convinced” he suffered from the delusion he described to police immediately before stabbing his grandmother with a screwdriver. Therefore, appellant’s premise -- that his individual culpability is attenuated because of his mental illness -- is not consistent with the trial court’s findings.
This case differs substantially from Dillon. In contrast to Dillon, appellant’s conviction was for second degree murder, the level the reduced to in Dillon. The court found sufficient evidence in Dillon to convict the immature youth of second degree murder. In addition, unlike Dillon, appellant has a prior criminal history. Appellant was not convicted of felony murder that requires a life sentence “regardless of the defendant’s individual culpability,” and appellant has not shown the sentence of 16 years to life is so excessive in relationship to his culpability that it shocks the conscience. (Dillon, supra, 34 Cal.3d at p. 477.)
Appellant’s sentence also does not violate the federal constitution. “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” (Ewing v. California (2003) 538 U.S. 11, 20.) Here, the gravity of the offense was not disproportionate to the harshness of the penalty. The offense was the murder of appellant’s grandmother by repeated stabbings with a screwdriver, which appellant admits was a “serious offense.” This offense is far more grave than the possession of 672 grams of cocaine which carried a life sentence without the possibility of parole upheld by the Supreme Court in Harmelin v. Michigan (1991) 501 U.S. 957, 996. Appellant has not shown the penalty of 16 years to life in prison is “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Harmelin v. Michigan, supra, at p. 1005.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.