Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF143389 Joseph A. Kalashian, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
Sixteen year-old defendant Andre Contreras was convicted of first degree murder, two counts of attempted murder, permitting another to shoot from a vehicle, shooting from a motor vehicle, and shooting at an inhabited dwelling. As to the first degree murder charge, the jury found true the special circumstances that the murder was committed in furtherance of gang activities and the murder was committed by discharging a firearm from a motor vehicle. In addition, multiple gun and gang enhancements were found true.
In a prior appeal (People v. Contreras (Dec. 27, 2007, F051844 [nonpub. opn.]), we vacated defendant’s sentence of life without the possibility of parole for the murder conviction because the record did not reflect the trial court was aware it had discretion to sentence defendant to a lesser sentence of 25 years to life for the special circumstance murder. We remanded the matter for resentencing. In all other respects, the judgment was affirmed.
At resentencing, the trial court again imposed the sentence of life without the possibility of parole for the murder conviction. Defendant appeals, claiming the trial court abused its discretion in imposing the sentence of life without the possibility of parole. Defendant also contends his sentence amounts to cruel and unusual punishment. We affirm.
We grant defendant’s request for judicial notice of the record in his previous appeal, F051844. Our factual summary is taken from our opinion in the prior appeal.
On March 26, 2005, Alejandro Gonzales reported that his white Honda four-door car had been stolen.
Pedro Flores was standing outside of his home on Easter morning, March 27, 2005. A white car with two Hispanic male occupants drove by. The occupants of the car stared at Flores. Flores “flipped them off” and made a Northerner gang sign. The car turned around and one of the occupants fired shots at Flores. Flores later told an officer that the driver was the shooter. Flores ran inside and relocated his sister from the front bedroom to the rear bedroom. More shots were fired into the front bedroom. Flores testified that the passenger was the person who was shooting after Flores went inside his home. Flores described the driver as skinny and the passenger as heavier. A handgun was used.
J.B., an 11-year-old neighbor of Flores, testified he was playing in the backyard on Easter morning. He heard gunshots and ran to a window and looked out. Flores was calling out names to the males in a four-door white car. The car contained two males in the front seat. Flores went inside his home. The car turned around and the passenger started shooting a rifle.
Later that same Easter morning, V. was with his older brother, Anthony Castro (Castro). They went to a gas station to put gas in their mother’s car. A white Honda drove by and the passenger flashed a Southerner gang sign at them. V. and Castro ignored the incident. The driver of the white Honda stopped at the gas station and put gas in the car. V. said the driver was skinny. Castro and V. left the gas station and the white Honda followed them.
Castro then drove to pick up his good friend Alejandro Salazar, a Norteno gang member. Castro was still being followed by a white Honda with two males inside. The Honda continued to follow them after Castro picked up Salazar. Castro returned to his house and dropped off V. Castro changed his clothes and then he and Salazar began walking back to Salazar’s house.
As Castro and Salazar were walking back toward Salazar’s house, the white Honda drove in their direction. A rifle came out of the back seat window and shots were fired. Salazar fell to the ground, then got up and ran to his house. Castro ran into a different house.
V. was outside of his house when his cousin Sandra came and said that Castro had been shot. V. saw the white Honda speeding away from the area. Castro had been shot three times. He bled to death from the gunshot wound to his back. This bullet passed through his liver, kidney, diaphragm and heart. He had two other bullet wounds, one to his leg and one to his hip.
Salazar’s aunt took Salazar to the hospital. He had been shot three times, once each to the head, back and leg.
On Easter evening, law enforcement received a call reporting the location of a stolen vehicle. Deputy Sheriff William Hakker went to the location. He saw a white Honda with a Hispanic male in the driver’s seat. The male ran into an apartment. Defendant came out of the same apartment; he was not the male who ran inside the apartment. The white Honda matched the description of a vehicle used earlier in a shooting. The vehicle contained a.22 rifle and a 12-gauge shotgun.
Defendant was questioned. At first, defendant denied all involvement in the shootings. He then admitted that during the first shooting he shot at the window of the house. In the second shooting, defendant was driving when Ezekial Perez shot at the two males walking down the street. Defendant said that earlier that morning he went to Kmart with Ezekial and gave him money to buy ammunition. Ezekial bought the ammunition.
On Easter morning, March 27, 2005, two bald, “gangster-type” males came into the Delano Kmart and purchased a box of.22-caliber ammunition. An employee of the store identified Ezekial Perez from a picture as the “chubby” person who walked out of the store with a bag of ammunition.
Stephen Pederson testified as an expert on gangs. He testified that defendant was a gang member and the crimes were committed for the benefit of a criminal street gang.
DISCUSSION
I. Sentence of Life Without the Possibility of Parole
Penal Code section 190.5, subdivision (b) provides in pertinent part that the punishment for a defendant convicted of murder in the first degree with one or more special circumstances, “who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
In defendant’s first appeal, the record did not reflect that the trial court was aware of the discretion provided in Penal Code section 190.5, subdivision (b). We remanded the case to the trial court for the court to impose sentence on the murder conviction pursuant to this code section.
Defendant argued on remand that the sentence of 25 years to life was the appropriate sentencing choice. His reasons in support of the more lenient sentence were that he was young at the time of the murder; he had only one prior sustained juvenile petition (for a misdemeanor possession of stolen property); he cooperated with law enforcement, giving them a statement when he was questioned; he was remorseful; he was heavily into drugs at the time of the crime; and he was manipulated by gang individuals.
The court disagreed with defendant and set forth its intended ruling imposing a term of life without the possibility of parole. The court stated its reasons on the record. “I’ve struggled with this for some time because of your age at the time this happened. You were only 16. I agree with you; when you’re 16, you certainly don’t have the maturity that you have now and that you’ll have later as you grow up. But at the time you wanted to be treated as an adult. You did crimes that are the worst crimes that anybody can commit. You murdered somebody in a really -- you know what the word callous means? It means without caring. And it was cowardly. You drive by somebody’s house because you’re part of a gang.
“And I don’t lecture anybody. That doesn’t do any good. Five minutes after you leave here you’ll forget what I said. But society cares and they care a great deal. They’re sick and tired of gang-bangers going around shooting and killing people. You were only 16 at the time, but then you went and you did it right before that and right after that, tried to shoot and kill somebody else.
“And I never want to send somebody at your age to life imprisonment without the possibility of parole. It tears at me that I have to do that. But, honestly, I think that’s the appropriate sentence in this case based upon what you did. And we can’t bring back that 16- or 17-year-old that you killed. That person isn’t here begging for mercy. That person’s gone. They’re six feet under. You’re here. You got a life.
“At least you’ll have a life in prison. I don’t know what kind of life it’s gonna be. But to say well, we’ll take into consideration your age and this and that, I certainly have -- in balancing everything, I think it’s got to be a sentence of you’re there for the rest of your life with no possibility of getting out.”
The matter was continued for the preparation of a supplemental probation report. At the October 2, 2008, sentencing hearing, the court denied defendant’s request to reconsider its earlier intended ruling and imposed a sentence of life without the possibility of parole for the murder.
“Penal Code section 190.5 means... that 16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP [life without the possibility of parole], unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141.) That discretion “is circumscribed by sensible criteria relating to the question whether the circumstances warrant imposition of a more lenient punishment.” (Id. at p. 1143.)
Defendant contends the trial court abused its discretion when it imposed the term of life without the possibility of parole. In particular, defendant claims the court failed to take into consideration that defendant was only 16 at the time of the shootings, defendant did not have the emotional maturity or mental capacity of an adult at the time of the shootings, defendant had a relatively insignificant juvenile record, and defendant used alcohol and drugs from an early age.
We disagree. The court stated that it struggled with this case because of defendant’s age at the time of the commission of the murder and specifically stated that defendant did not have the maturity at 16 that he now has as an adult. In addition, the trial court stated that it took into consideration the defendant’s age “and this and that.” The court then balanced everything and decided the sentence should be life without the possibility of parole.
Although the trial court did not specifically mention defendant’s prior record or his use of alcohol and drugs, the court stated that it had balanced everything and considered “this and that.” The trial court was aware of all of the factors defendant says it did not consider because it read the papers submitted by the parties and listened to the argument of counsel and the statement of the defendant.
The trial court did not abuse its discretion when it chose to send defendant to prison for the murder for the term of life without the possibility of parole.
II. Cruel and Unusual Punishment
Defendant contends the trial court failed to consider the significant mitigating factors in his favor when it imposed the sentence of life without the possibility of parole for the murder, and thus his sentence was cruel and/or unusual punishment under the United States and California Constitutions. In particular, defendant argues that he was young at the time of the shooting, had used drugs and alcohol from a young age, had a relatively minor record, and admitted his participation at an early stage of the proceedings. Defendant also claims the court ignored the evolving international human rights standards regarding the punishment and treatment of young offenders.
Respondent contends defendant forfeited the issue of cruel and unusual punishment by failing to raise it at sentencing. When the defendant spoke to the court, he asked the court to not punish him “cruelty” and not to be “crucial” regarding his punishment. He stated that he thought sentencing him to life imprisonment without the possibility of parole is “crucial.” While not artfully stated, we believe defendant was asking the court to not impose a sentence that was cruel and/or unusual.
“Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.)
In Roper v. Simmons (2005) 543 U.S. 551, the United States Supreme Court found that the imposition of the death penalty for juvenile offenders constituted cruel and unusual punishment. The earlier case of Thompson v. Oklahoma (1988) 487 U.S. 815 held that juveniles under the age of 16 could not be subject to the death penalty. In Atkins v. Virginia (2002) 536 U.S. 304 it was held that the death penalty cannot be imposed on mentally retarded persons. In all three cases a clear distinction was made between execution and lesser sanctions. “Justice O’Connor’s concurring opinion in Thompson, in which she cast the fifth and decisive vote for the judgment in that case, pointed out the significance of the distinction: ‘The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.’ [Citation.]” (People v. Demirdjian (2006) 144 Cal.App.4th 10, 14.) “Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force.” (Roper v. Simmons, supra, at p. 568.)
Although Roper v. Simmons points out that youth are more impetuous, are more vulnerable or susceptible to negative and outside pressures, and the personality traits of a juvenile are less fixed and more transitory (543 U.S. at pp. 569-570), we have not been provided any California or United States Supreme Court authority holding that lengthy sentences are per se excessive in all cases involving juveniles. (People v. Demirdjian, supra, 144 Cal.App.4th at p. 15.)
Characteristics found in juvenile offenders are, however, still relevant to an inquiry regarding cruel and unusual punishment, as demonstrated by the California case of People v. Dillon (1983) 34 Cal.4th 441, a case relied on heavily by defendant here. In Dillon, a 17-year-old juvenile planned with other juveniles to steal marijuana from a nearby field. During their first attempt they were discovered and sent away by the field’s owner with threats they would be shot if they returned. The group devised another plan and returned to the field; this time they were armed with shotguns. One of the youths accidently discharged his gun. Dillon thought his friends were being shot and he became very frightened. The owner of the field, armed with a shotgun, circled around the group and approached. Dillon saw the owner and was sure the owner saw him. The owner shifted his gun so it was pointed in the defendant’s direction. Dillon was terrified that he was about to be shot. Dillon lowered his gun and began firing. When the owner of the field fell to the ground, Dillon stopped firing. The owner died after having been hit nine times. (Id. at pp. 482-483.)
Dillon had no prior record, and at trial expert testimony was presented showing that Dillon was very immature, even for a youth his age. Dillon was tried for first degree murder under a theory of felony murder. Both the jury and the trial court made it clear they felt a first degree murder conviction was too harsh based on the circumstances of the crime and Dillon’s background, but Dillon was convicted of first degree murder based on the facts and was sent to prison for life. (People v. Dillon, supra, 34 Cal.4th at p. 484.)
The California Supreme Court modified the conviction of first degree murder to second degree murder, finding that Dillon’s punishment was cruel and unusual under the California Constitution. The court noted that the other participants in the crime received relatively “petty chastisements” (People v. Dillon, supra, 34 Cal.4th at p. 488) and further noted the harshness of the felony murder rule (id. at pp. 486-489).
The finding of cruel and unusual punishment in Dillon was based primarily on the first criteria out of three utilized to determine if a punishment is cruel and unusual. The first test is one of intracase proportionality, and we examine “‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’” (People v. Dillon, supra, 34 Cal.3d at p. 479.) This examination requires us to look at the entire circumstances of the crime--including motive, method, and results--and also requires us to look at the characteristics of the defendant--including his age, prior criminality, personal characteristics, and state of mind. (Ibid.)
While defendant here was young and had a minor prior record of criminality, he is not similar in any other respect to the defendant in Dillon. The victims of the murder and other crimes in this case did not do anything to provoke defendant’s deadly attack. Defendant directly participated in two drive-by shootings on the same day, killing one victim and seriously injuring another. Defendant was a gang member and participated in the crime for the benefit of a criminal street gang. “The fact that defendant... had chosen to embrace an antisocial, savage, gang lifestyle of complete heinousness, callousness and utter disregard for the law or for the rights of others at a relatively early age does not demonstrate the disproportionality of the sentence. The senselessness of defendant[’s]... crimes makes them more, rather than less, deserving of punishment.” (People v. Guinn, supra, 28 Cal.App.4th at pp. 1146.)
Defendant does not discuss the second test of the tripartite test for cruel and unusual punishment--a comparison of the challenged penalty with those imposed in the same jurisdiction for more serious crimes--nor does he discuss the third part of the test--comparing the challenged penalty with those imposed for the same offense in other jurisdictions. (People v. Chacon (1995) 37 Cal.App.4th 52, 63.)
Finally, defendant claims we should be guided by the evolving international human rights standards regarding the punishment and treatment of young offenders. “‘Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislature’s sole discretion.’ [Citation.]” (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) “‘Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned ‘unless their constitutionality clearly, positively and unmistakably appears.”’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 569, brackets in original.)
Based on the tests that we are required to apply, we find that defendant has failed to show that his sentence offends the proscription against cruel and unusual punishment.
Disposition
The judgment is affirmed.
WE CONCUR:
ARDAIZ, P. J., CORNELL, J.