Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA288647. Curtis B. Rappé, Judge.
Nancy L. Tetreault, 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, Assistant Attorney General, Susan Sullivan Pithey and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jesus Herrera Diaz, also known as Diaz Jesus Herrera and Arturo Carrera, appeals from the judgment entered upon his convictions by jury first degree felony murder (Pen. Code, § 187, subd. (a), count 1) and carjacking (§ 215, subd. (a), count 2). The jury found to be true the special circumstance allegation that the murder occurred during commission of a carjacking (§ 192, subd. (a)(17)) and the allegations that, in connection with count 1, appellant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1) and, in connection with count 2, that he used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(2). The trial court sentenced appellant on count 1 to life in prison without the possibility of parole plus an additional year for the weapon enhancement and on count 2 to a concurrent middle term of five years plus two years for the weapon enhancement. Appellant contends that (1) the trial court denied him due process and the right to present a defense when it excluded his third party culpability evidence, (2) the trial court erred in failing to instruct the jury on driving a vehicle without the owner’s consent as a lesser included offense of carjacking, (3) there is insufficient evidence to support the jury’s finding that appellant used a deadly or dangerous weapon in committing the offenses, and (4) the trial court erred in failing to strike the special circumstance, which constituted cruel and unusual punishment in light of the lack of evidence that appellant intended to kill the victim.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The murder
On the evening of May 28, 2005, after work, Hermenegildo Martinez Rivera (Rivera) drove to a party on Douglas Street, in Los Angeles, in his most prized, and only valuable, possession, his grey-colored, 1986 Chevrolet Camaro (Camaro). He never lent his Camaro to anyone. Rivera’s friend, Gregorio Tapia (Tapia), saw him arrive at the party alone, at 10:00 p.m. At approximately 2:00 or 3:00 a.m., after the party ended, Tapia shared a six-pack with Rivera in the Camaro. Afterwards, Rivera said he was leaving for work, and Tapia got out of the car and went home.
At 8:00 a.m., on May 29, 2005, Los Angeles Sheriff’s Deputy Meredith Lawson found Rivera’s pulseless body, lying face down on a street near the party, a pool of blood around his head. There was no blood trail leading from the body. The deputy found no blunt objects nearby that might have been used as weapons. Rivera was pronounced dead at 8:03 a.m.
The investigation
Detective Jamie Bennett arrived at the scene at 10:00 a.m. He saw no skid marks or other signs of an accident. Rivera’s car keys were not on him. Detective Bennett looked for Rivera’s Camaro in the area, but did not find it. He entered the vehicle information into the police stolen vehicle system. Three days later, the car was located by a park ranger in a remote parking lot at Kelly Park, in San Jose.
On June 2, 2005, Detectives Bennett and Stacey Spell traveled to San Jose to inspect the Camaro. They, along with two San Jose police officers, examined the vehicle, gathering DNA samples and latent fingerprints. They found what appeared to be blood stains on the outside of the car, below the driver’s door, on the interior, lower portion of the driver’s door, and on the lower portion of the driver’s door armrest. Swabs of these blood stains were collected. A palm print was lifted from the left side of the front hood. Inside the car, Detective Bennett recovered a McDonald’s bag containing a Big Mac Box, a french fry container, ketchup packages, and a receipt dated May 29, 2005, at 11:19 a.m., from the McDonalds restaurant in the City of Buellton, California, a two and one-half to three-hour drive from Los Angeles. A “JVC” manual was found on the driver’s seat and a pair of blue jeans in the back seat.
On July 14, 2005, detectives interviewed Oscar Diaz (Oscar), who, on May 29, 2005, at 11:19 a.m., was working the drive-through window at the McDonalds restaurant, in the City of Buellton. Oscar reported that at that time, Rivera’s Camaro, driven by a nervous, Spanish speaking, male Hispanic, the sole occupant of the vehicle, pulled up. The driver’s skin and clothing were “dirty,” and he had longer hair in the back of his head and shorter hair in the front (mullet style). Oscar admired the car, and the driver engaged him in a brief conversation as he ordered. The Camaro was at the window for approximately 35 seconds. Oscar explained to the detectives that the McDonald’s receipt recovered in the Camaro came from his drive-through window. The time on the receipt was accurate, but the time reflected on the drive-through window video, 10:19 a.m., was not. McDonalds did not serve Big Mac’s before 10:30 a.m. and it did not update the video after daylight savings time.
The detectives showed Oscar a photographic lineup that included a photograph of the husband of a woman with whom defense counsel claimed Rivera was having an affair. Oscar said, “I can’t possibly identify anyone from the photos... but the person in No. 1 looks most like the person in the silver sports car at the drive-in window.” The man selected was the alleged husband. At trial, Oscar clarified that he meant that he could not correctly identify the man. In February 2006, investigators returned and showed Oscar another photographic lineup which included appellant. Oscar selected someone other than appellant, stating that the person selected looked similar to the man in the Camaro.
On August 9, 2005, Detectives Bennett and Spanish-speaking Albert Marengo went to Arizona where appellant was in custody for an unrelated car theft. They told him that they wanted to speak to him about a stolen car, not about a murder. After giving appellant his Miranda warnings, he voluntarily gave an audio-recorded statement. Initially, he denied ever seeing the Camaro or knowing Rivera. He later said that he was owed $900 by the Camaro’s owner, whom he saw in an intoxicated state at a Mexican market parking lot, at noon. Appellant identified a photograph of Rivera as the person who owed him the money. Appellant knew him as “Jose.”
Appellant stated that he and a friend approached Rivera, demanded money, and when Rivera would not give it, took the car to hold until payment was received. Appellant said that he and his friend pulled the victim from the car, but then changed his story, stating that the person got out of the car on his own, gave them the keys to the car and walked away. They did not assault or beat him. At one point when the admonition was being read and before he knew of Rivera’s death, appellant asked, “So what, I killed the guy?”
Appellant said he had the car for approximately a week. He also said that the week that he had the car a friend had stolen it from him. On being shown pictures of the Camaro from the McDonalds surveillance videotape, appellant admitted being in the car at McDonalds, but denied being the driver. He also admitted leaving the Camaro in the parking lot in San Jose, near a friend’s house when the car overheated.
The forensic evidence
DNA testing at Orchid Cellmark Laboratories revealed that the blood taken from the armrest on the driver’s door, the blood on the lower, interior portion of the driver’s door and the blood on the outside of the car, just below the driver’s door, belonged to Rivera. The blood on the jeans recovered from the Camaro belonged to Rivera, but the swabs taken from the waistline of the jeans contained appellant’s DNA.
Ronald Raquel, a criminalist involved in blood stain pattern analysis, conducted such an analysis on 12 spots on the jeans recovered from the Camaro. All 12 stains were on the left side of the pants and tested presumptively for blood. The source of the blood spots relative to the pants was from directly above. They were created by blood dropping on someone wearing the pants and sitting down or when blood droplets fell on the pants as they rested horizontally. They were consistent with someone who was bleeding leaning into the car through the driver’s window and depositing blood on the driver. The stain on the driver’s door was also consistent with this hypothetical. The blood stain was inconsistent with bleeding outside of the car, and then the car moving away.
Amy Adams, a forensic print specialist with the Los Angeles Police Department, rolled appellant’s prints to compare with prints found on and in the Camaro. The palm print found on the hood of the Camaro matched appellant’s palm print. The palm print was entered into a criminal database which yielded a match with someone named Arturo Carrera. Adams opined, based on the matching palm prints, that appellant was Arturo Carrera. Appellant’s fingerprints also matched two fingerprints left on the JVC manual and two fingerprints left on the Big Mac box.
Los Angeles County Deputy Medical Examiner, Vladimir Levicky, performed an autopsy on Rivera. He found that Rivera had suffered a laceration to the left side of his forehead and multiple brush burn abrasions to his face and right forehead. He also suffered brush burn abrasions over his left upper back, left hand, left forearm, left arm, chin, chest area and left ear, and bruises on his legs. These injuries were consistent with Rivera being dragged against a rough surface like a road, such as someone traveling in a slow moving vehicle, dragging the victim on the ground. There was a “stellate laceration” to the back of the head that extended to the surface of the skull, causing hemorrhaging. The laceration to the left side of his forehead could have been caused by a sharp object that was not a knife. Rivera suffered a subdural hematoma, which is hemorrhaging between the covering of the brain and the brain, a fracture of his skull, and rib fractures. Toxicology results showed that the victim had been drinking. Dr. Levicky concluded that the victim died from multiple blunt force injuries which accounted for the swelling of the brain, the hemorrhaging, and the star-like laceration to the back of the head. Based on body temperature, Dr. Levicky opined that Rivera likely died at approximately 5:00 a.m. on the day his body was found.
DISCUSSION
I. Exclusion of third party culpability testimony
A. Background
The prosecution moved in limine to exclude third party culpability testimony. Appellant’s counsel opposed the motion, making an offer of proof that the husband of a woman with whom Rivera was romantically involved was the perpetrator of the carjacking and homicide. Oscar had selected him from a photographic six-pack as the person who was in the Camaro on May 29, 2005, at the Buellton McDonalds. The initial police investigation targeted the husband before appellant was a suspect. The home at which Rivera attended the party just before his death was close to the husband’s residence, and, when last seen alive, Rivera was highly intoxicated and asleep in the Camaro near the couple’s residence. According to the coroner Rivera was murdered between 5:00 and 6:00 a.m., which would have given the husband ample time to commit the murder, and give the car to appellant, who was a car thief with no history of violence. Appellant would then have had ample time to drive the two and one-half to three hours to Buellton and be there by 11:19 a.m. Other than receiving the stolen car as collateral for a $900 debt, appellant had nothing to do with its theft or Rivera’s murder.
Relying upon People v. Johnson (1988) 200 Cal.App.3d 1553 (Johnson), the trial court granted the People’s motion. It concluded that even if it allowed the third party culpability evidence, it would not exonerate appellant who admitted being in the Camaro in Buellton.
B. Contentions
Appellant contends that the trial court erred in excluding his third party culpability evidence, thereby depriving him of his due process right to present a defense. He argues that the United States Supreme Court decision in Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes) and the California Supreme Court decision in People v. Page (2008) 44 Cal.4th 1 (Page), rendered the Johnson opinion, upon which the trial court relied, unsound.
The Attorney General contends that appellant forfeited this contention, which is nonetheless meritless. We conclude that, whether or not forfeited, any error in excluding this evidence was harmless.
While the Attorney General uses the term “waiver” in reference to appellants’ failure to preserve this claim for appeal because they did not raise it in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007)40 Cal.4th 875, 880, fn. 1.)
C. Exclusion of third party culpability evidence
All relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence is all evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) A trial court has wide discretion in determining the relevance of evidence. (People v. Warner (1969) 270 Cal.App.2d 900, 908.) We review the admission and exclusion of evidence on relevance grounds for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1198; People v. Kipp (2001) 26 Cal.4th 1100, 1123.)
Third party culpability evidence is treated like all other evidence; if relevant it is admissible. (People v. Alcala (1992) 4 Cal.4th 742, 792 (Alcala).) It is admissible if it is “‘capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability.... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’” (Page, supra, 44 Cal.4th at p. 38; People v. Hall (1986) 41 Cal.3d 826, 833.) To introduce third party culpability evidence, a defendant must show that the evidence is relevant and that its probative value is not ‘“substantially outweighed by the risk of undue delay, prejudice, or confusion.”’ (Alcala, supra, at p. 792; People v. Robinson (2005) 37 Cal.4th 592, 625.)
In Johnson, the Court of Appeal concluded that the trial court did not err in refusing to admit third party culpability evidence because the totality of the evidence did not create a reasonable doubt as to the defendant’s guilt. But in Holmes,the United States Supreme Court held that a rule of evidence that a criminal defendant could not prove third party culpability if the prosecution introduced forensic evidence that strongly supported a guilty verdict violated the defendant’s federal constitutional rights to a fair trial and to present a defense. (Holmes, supra, 547 U.S. at pp. 328–330.) The Court was concerned that “by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of the contrary evidence offered by the other side to rebut or cast doubt.” (Id. at p. 331.) Hence, the Court frowned upon deciding the admissibility of third party culpability evidence by weighing the strength of the prosecution’s case. In Page, the California Supreme Court questioned the Johnson holding in light of Holmes, stating: “To the extent Johnson... relied upon the strength of the prosecution’s evidence against the defendant to exclude third party culpability evidence, its reasoning is suspect in light of Holmes... which found a federal constitutional violation resulting from a rule of evidence that precluded the defendant from introducing third party culpability evidence when there is strong evidence of the defendant’s guilt.” (Page, supra, 44 Cal.4that p. 38, fn. 16.)
There is little question here but that the trial court based its decision to exclude the third party culpability evidence on the discredited reasoning in Johnson. It stated that it believed that that case was decisive and that it was bound by it. It also stated that it wanted to read the interview of appellant by the police, part of the prosecution’s case. The trial court’s reliance on Johnson was misplaced. Prior to its ruling, the Holmes decision had been rendered, undermining the reasoning in Johnson. Shortly after the ruling, Page confirmed that Johnson’s analysis was suspect.
The failure to exercise discretion is the procedural equivalent of an abuse of discretion. (People v. Beasley (1970) 5 Cal.App.3d 617, 633.) To purport to exercise discretion by resort to an erroneous legal standard is to fail to exercise discretion under the proper standard. A trial court abuses its discretion if it relies on circumstances that are not relevant to the decision or that otherwise constitute an improper basis for the decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847–848.) Hence, the trial court abused its discretion by failing to properly assess under the correct legal standard whether or not to admit third party culpability evidence.
D. Harmless error
The trial court’s exclusion of the third party culpability evidence was harmless because it is not reasonably probable that had the evidence been admitted a more favorable result to appellant would have ensued. (People v. Cudjo (1993) 6 Cal.4th 585, 611–612 [error in excluding third-party culpability evidence is reviewed under the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 836].)
First, it is unlikely that the trial court would have admitted the third party culpability evidence had it applied the correct standard. While appellant’s offer of proof, if established, would have provided evidence of motive and opportunity of the aggrieved husband to commit the charged offenses, his links to those offenses was simply too remote and attenuated. There was no forensic evidence linking him to the crimes.
Consequently, the defense puts much faith in the fact that Oscar selected the photograph of the husband out of a six-pack. But when Oscar did so, he did not say that that was the person he saw at the McDonalds. Rather, he said that, “I can’t possibly identify anyone from the photos....” He then said that he selected the husband only because he “looked the most like the person in the silver sports car at the drive-in window.” This evidence does not constitute an identification. Further, in a second six-pack he was shown some months later, he selected someone else who he said looked like the person in the Camaro.
Second, the evidence against appellant was compelling, if not overwhelming. He admitted being in the Camaro at the Buellton McDonalds and driving the car to San Jose on the day of the murder. His fingerprints were found on and in the car. DNA testing established that Rivera’s blood stains were on the jeans found in the Camaro and that appellant wore those jeans, as his DNA was found on the waistband. Appellant provided detectives with information that the person who killed Rivera would know. For example, he knew Rivera was intoxicated, which was corroborated by the coroner, and though detectives did not tell him, he intimated that he knew Rivera was dead when he asked if he was being charged with murder. He also at one point stated that he and his friend pulled Rivera from the car. In light of the evidence, if Oscar had correctly identified the husband of the woman with whom Rivera was having an affair as also in the car, then it would be implausible to suggest that appellant was not at least a coconspirator in the crimes, being in the stolen car with the murderer.
Third, there existed a strong risk of delay, prejudice and confusion by admission of the third party culpability evidence. That evidence was likely to substantially increase the length of the trial and risk focusing the jury on such issues as whether Rivera was having an affair with the unidentified woman, whether her husband knew of it, where the husband was at the time of the murder and numerous other substantial and tenuous issues. In considering whether to admit third party evidence, the delay, prejudice and confusion that would be created by dealing with these questions must be weighed against the strength of the third party evidence.
II. Failure to instruct on lesser included offense
Appellant’s theory of defense was that he was a long-time car thief who acquired the Camaro from a third party after the carjacking and homicide were completed. Appellant contends that the trial court erred in failing to instruct the jury on taking a vehicle without the owner’s permission as a lesser included offense of carjacking. He argues that this failure mandates reversal, entitling him to a new trial. This contention is patently meritless.
A trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Saddler (1979) 24 Cal.3d 671, 681.) It must instruct the jury sua sponte “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation]....” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Even absent a request, and over a party’s objection, a trial court must instruct a criminal jury on lesser included offenses if there is substantial evidence that only the lesser offense was committed. (Ibid.) In general, “‘[d]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.’” (People v. Kaurish (1990) 52 Cal.3d 648, 696.)
A lesser offense is necessarily included in the charged offense only if it meets either the “elements test” or the “‘accusatory pleading’ test.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The “elements test” is satisfied when “‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.”’” (Ibid.) The “accusatory pleading test” is satisfied “‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.”’” (Id. at pp. 288–289.)
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215; italics added.) Taking a vehicle without the owner’s permission under Vehicle Code section 10851, subdivision (a) is the driving or taking a vehicle that does not belong to the defendant “without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle....” (Veh. Code, § 10851, subd. (a); italics added.)
Our Supreme Court has held that unlawful taking or driving of a vehicle is not a lesser offense of carjacking under the elements test because carjacking is a crime against possessors or passengers in the vehicle whereas unlawful taking or driving is a crime against ownership. (People v. Montoya (2004) 33 Cal.4th 1031, 1035.)
Appellant therefore argues that in this case unlawful taking a vehicle is a lesser offense of carjacking under the accusatory pleading test. He claims that the information alleges that Rivera was the owner of the vehicle, and that he had possession of the vehicle when it was unlawfully taken against his will and with the intent to permanently deprive him of his possession of the car. The accusatory pleading therefore contains the elements of both carjacking and taking a vehicle without the owner’s consent. We disagree.
The information alleges: “On or about May 29, 2005, in the County of Los Angeles, the crime of CARJACKING, in violation of PENAL CODE SECTION 215(a), a Felony, was committed by JESUS HERRERA-DIAZ, who did unlawfully take a motor vehicle in the possession of HERMENEGILDO MARTINEZ-RIVERA from his or her person and immediate presence and from the person and immediate presence of passenger of said motor vehicle, against the will and with the intent to permanently and temporarily deprive the person in possession of the motor vehicle of the possession and accomplished by means of force and fear.” (Italics added.)
Under no stretch of the imagination can the foregoing allegation, or anything else alleged in the information, be construed to allege that Rivera was the owner of the vehicle. As a result, to commit the alleged offense, the victim need only be in possession of the vehicle. He was not required to be the owner. Commission of the charged offense did not necessarily include taking the vehicle without the owner’s permission.
III. Sufficiency of the evidence
The jury found that appellant used a deadly and dangerous weapon in committing the charged offenses. Before reaching its verdict, it asked the trial court if a closed fist and a sharp ring could be considered such a weapon. The trial court told the jury that a fist is not a deadly weapon but a ring can be depending upon the surrounding circumstances.
Appellant contends that there is insufficient evidence to support the jury’s finding that appellant used a deadly or dangerous weapon. He argues that the jury’s questions to the trial court and subsequent true finding on the deadly weapon enhancement indicate that it found a ring to be a deadly weapon. He claims that there is no evidence in the record that appellant was wearing a ring. “This theory was fabricated from whole cloth by the jury.” This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) “The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225 (Alvarez).) “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)
Section 12022, subdivision (b)(1) provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” Subdivision (b) of that section increases the penalty to one, two or three years if the person was convicted of carjacking.
There are two classes of deadly or dangerous weapons; instrumentalities that are weapons in the strict sense such as guns or blackjacks, and instrumentalities that may be used as weapons but have nondangerous uses such as hammers and pocket knives. (People v. Burton (2006) 143 Cal.App.4th 447, 457.) To determine whether an object that is not inherently dangerous has been used as a deadly or dangerous weapon, the trier of fact may consider the nature of the object, the manner of its use and all other facts relevant to the issue. (People v. Blake (2004) 117 Cal.App.4th 543, 555.) For example, a glove with sharp or rigged edges can be used as a deadly weapon. (People v. Burton, supra, at pp. 457–458.) The nature and extent of the victim’s injuries can support the deadly weapon enhancement. (Alvarez, supra, 14 Cal.4th at p. 225 [being hit by a blunt instrument, which required suturing with 20 stitches, prevented the victim from opening her mouth and blackened the left side of her face from her hairline to her neck, supported the deadly or dangerous weapon enhancement].)
There is ample evidence here that Rivera was killed with a deadly or dangerous weapon. The coroner testified that appellant suffered blunt force injures to the back of his head, received a fractured skull and brain swelling, a laceration to the front of his head consistent with a stab wound from a screwdriver or stick and died from multiple blunt force injures. These injures alone were sufficient for the jury to draw the inference that appellant was killed with a deadly or dangerous weapon. (Alvarez, supra, 14 Cal.4th at p. 225.)
The fact that the jury asked about a ring is of little consequence. We cannot speculate as to its reasons for doing so or extrapolate from the question and the trial court’s answer that the jury’s true finding of the deadly weapon allegation was based upon it. In any event, the verdict form only indicates that the jury found to be true that an “unknown blunt object” was used. It was unnecessary for the jury ascertain the exact nature of the “weapon” used. (See Alvarez, supra, 14 Cal.4th at p. 225.)
IV. Striking Special Circumstance
A. Background
Appellant was convicted of first degree felony-murder with a carjacking special circumstance. At trial, he moved to strike the special circumstance finding, arguing that: “I would ask the court to consider one thing, either striking or staying the 190.2 life without allegation [sic] special circumstance. I know the jury found it true and I know by law that this is a felony murder situation but it seems even though the Legislature provided for this many states have abrogated felony-murder in that it’s often times just a harsh application of an accidental situation creating a first-degree murder out of something that otherwise wouldn’t be even though they indicate it’s because of underlying dangerous—certain kinds of crimes have that kind of danger with them and robbery and carjacking is one but the idea that it’s additionally bootstrapped into a special circumstance it’s really one in the same. [¶] One makes it a first- degree murder and then to say it’s special circumstance I would suggest is unduly harsh and I would ask the court to consider either staying or striking the finding of the jury on that issue.”
The trial court denied the motion, stating that “I think it’s well in the hands of the Legislature.” It sentenced appellant on the first degree murder count to life without the possibility of parole.
B. Contention
Appellant contends that the trial court erred in failing to strike the special circumstance allegation as it was cruel and unusual punishment in light of the lack of evidence that he intended to kill the victim. He argues that there was “no direct evidence at trial establishing that appellant took any affirmative action to kill Mr. Rivera.” He continues that the coroner testified that Rivera died from blunt force head injury that could have been caused by hitting his head on the curb as he tried to stop a carjacking. “Thus, appellant’s murder conviction only established that Mr. Rivera was killed during appellant’s theft of his car. There was no showing that appellant intended to kill Mr. Rivera, or that the killing was the product of any affirmative physical conduct by appellant against Mr. Rivera.” This “made the sentence of life without the possibility of parole grossly unfair and disproportionate to his criminal actions.”
The Attorney General contends that appellant forfeited this contention by failing to raise it in the trial court.
C. Forfeiture
The California Supreme Court has repeatedly held that constitutional objections, like other objections, must be raised in the trial court in order to preserve them for appeal. (See e.g. People v. Williams (1997) 16 Cal.4th 153, 250 [forfeit of First, Eighth, and Fourteenth Amendments]; see also People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [forfeit of claim of cruel and unusual punishment].) Having failed in the trial court to make the constitutional argument he now makes, appellant has forfeited this claim.
Even if this contention had not been forfeited, we would deny it on the merits.
D. Striking special circumstance
The Penal Code requires a sentence of life without the possibility of parole where the jury finds to be true the special circumstance that the homicide occurred during the commission of a carjacking, as alleged in section 190.2, subdivision (a)(17)(L). Section 1385.1 precludes a trial court from striking or dismissing any special circumstance found by a jury to be true, expressing a strong legislative desire that its determination that those found to have murdered with special circumstances receive the full measure of punishment that the Legislature determined was appropriate. Thus, a trial court has no authority to strike the special circumstance finding pursuant to section 1385. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1283.)
E. Cruel and unusual punishment
While the trial court may not strike a special circumstance, it may still find the sentence violative of the constitutional prohibitions against cruel and/or unusual punishments. (People v. Mora (1995) 39 Cal.App.4th 607, 615.) “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments....” (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible.” (Id. at p. 423.) “Reviewing courts,... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” (Solem v. Helm (1983) 463 U.S. 277, 290, fn. omitted; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213–1214.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).) Where the Legislature, as here, has expressly set forth its intent that a special circumstance finding cannot be stricken or dismissed so that the maximum punishment allowable for the special circumstance will be meted out, even greater deference is warranted.
“Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it ‘shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547.) Similarly, under the federal Constitution punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment if it is “grossly out of proportion to the severity of [his] crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.)
The Eighth Amendment has a ‘“narrow proportionality principle”’ which prohibits only extreme sentences that are grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S 11, 20–21.) The “disproportionality principle, the precise contours of which are unclear, [are] applicable only in the ‘exceedingly rare’ and ‘extreme” case....” (Andrade v. Lockyer (2003) 538 U.S. 63, 73.)
Lynch articulated the relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution. Itrequires consideration of the nature of the offender and the offense (Lynch, supra, 8 Cal.3d at p. 425), comparison of the punishment with the penalty for more serious crimes in the same jurisdiction (id. at p. 426), and comparison of the punishment to the penalty for the same offense in different jurisdictions (id. at p. 427).
In arguing that appellant’s punishment is cruel and unusual, appellant assumes facts he believes most favorable to his position: that Rivera died when he fell from his car trying to stop appellant from taking it. Even if that were the case, it might have been that the car was operated as a deadly or dangerous weapon (see. e.g., People v. Wright (2002) 100 Cal.App.4th 703, 706), reflecting an intent to kill Rivera. However, even more plausible is that as Rivera struggled to remove appellant from his car, Rivera’s prized possession, appellant struck him with a blunt object. This is supported by the blood spatter evidence. Appellant also fails to explain how the laceration at the side of Rivera’s forehead, which the coroner said could have been caused by a sharp object other than a knife, was received.
In any event, this is not one of those “exceedingly rare” cases in which the punishment is disproportionate to the crime. Appellant carjacked the vehicle from Rivera, an inherently dangerous crime involving a confrontation with a driver or passenger. Moreover, the injuries suffered by Rivera reveal a brutal attack.
Nor do we find the punishment meted out here to be so out of proportion to other punishments in California or in other states so as be cruel or unusual. Simply because California’s penalty may be more severe than some, or even all, other states does not mean that it is cruel or unusual. There will always be one state whose punishments are greater than the other states.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.