Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA058594, Barry A. Taylor, Judge.
Mark David Greenberg, under appointment by the Court of Appeal; Law Offices of Michael R. Kilts, Michael R. Kilts, and Joseph P. Farnan for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Following a jury trial, defendant Johnny A. Flores was convicted of first degree murder (count 1), two counts of burglary of a vehicle (counts 3 & 4), and two counts of receiving stolen property (counts 5 & 6). (Pen. Code, §§ 187, subd. (a), 459, 496, subd. (a).) He was found not guilty of the unlawful driving or taking of a vehicle (count 7). (Veh. Code, § 10851, subd. (a).) With respect to the murder, defendant was tried under the felony-murder rule, as the prosecution alleged that the killing occurred during the commission of a burglary. Defendant appeals, contending: (1) auto burglary is not a predicate felony for purposes of the felony-murder rule; (2) a finding that auto burglary is a predicate felony for purposes of the felony-murder rule violates equal protection; (3) his sentence constitutes cruel and unusual punishment; and (4) the trial court committed sentencing error. We conclude that two of the sentences imposed must be stayed. As modified, we affirm the judgment.
All further undesignated statutory references are to the Penal Code.
Count 2 charged defendant with vehicular manslaughter and the jury was unable to reach a verdict on that count.
STATEMENT OF FACTS
I. The Prosecution Case
On the morning of March 28, 2008, Wahi Haykaz was preparing to go to work. He went outside and started his gold 1995 Honda to warm up the engine. Haykaz went inside his home to get a cup of coffee. When he returned, the Honda was gone. He did not give anyone permission to take his vehicle. The next day, Haykaz was informed by officers that his car had been involved in an accident.
At approximately 8:00 p.m. on March 28, Kimberlee Wong parked and locked her Honda Accord on the street near her home in Monterey Park. When Wong returned to the car the next morning, she noticed that the front passenger window was broken. A navigation system, Ipod charger, eyeglass holder, and compact disc case were missing. She did not give anyone permission to enter her car. Several months later, Wong got back the navigation system, eyeglass holder, and compact disc case.
In the early morning hours of March 29, 2008, Aaron Lyles parked and locked his vehicle in front of his residence in Santa Monica. Between 7:00 and 8:00 a.m. that same morning, Lyles returned to his car and discovered that the driver’s side window was broken out. His Garmin GPS was missing. Lyles gave no one permission to enter his car. Eventually, the police returned his GPS.
At approximately 3:00 a.m. on March 29, Gregory Monette was driving home in his Mercedes. He lived on Bel Terrace, a cul-de-sac street near Getty Center drive. As he traveled down Bel Terrace, he was startled by three young Hispanic males who ran in front of his vehicle. The males were coming from the vicinity of the home of one of Monette’s neighbors. They ran to a Honda that was parked on the street. Monette made a u-turn at the end of the cul-de-sac and noticed that the hatch of a neighbor’s Toyota 4 Runner was up. He assumed the males had been at the Toyota and attempted to follow the Honda to get the vehicle’s license plate number.
When Monette got to the intersection, he looked to his right, saw taillights of a car approximately one-half mile away, and decided to follow the vehicle. He sped up and realized that the car in front of him was the Honda he had seen on his street. He pulled behind the Honda as it proceeded up the on ramp to the northbound 405 freeway and flashed his car’s headlights. The Honda continued on the freeway, changing lanes five or six times. While the Honda was in the right lane, another vehicle appeared to impede its progress. The driver of the Honda went onto the shoulder of the road and squeezed by. The Honda then passed a highway patrol car. Monette flashed his lights as he drove alongside the patrol car and the officers went in pursuit of the Honda. Monette slowed down. He lost sight of the Honda for a few minutes. When he got off at the Ventura off ramp, Monette saw a highway patrol car at the bottom of the ramp. He also saw that the Honda he had been pursuing had crashed into a wall. Monette stopped and spoke to an officer, advising him that the occupants of the Honda may have been involved in an auto burglary on his street.
At the time Monette was pursuing the Honda, California Highway Patrol Officer Charlton Adams and his partner were in a patrol car traveling northbound on the 405 freeway. A gold Honda Accord passed the officers at a high rate of speed. Adams noticed a Mercedes behind the Honda and the driver of the Mercedes was flashing the vehicle’s headlights. The patrol car’s forward red lights were activated and the officers attempted to make an enforcement stop of the Honda. Adams estimated that as the patrol car chased the Honda, it reached a speed of 100 miles an hour. As the patrol vehicle got behind the Honda, the Honda swerved from the number two lane to the number six lane in an attempt to exit at the freeway off ramp. The Honda’s driver applied the brakes aggressively, causing the vehicle to skid. The driver was unable to negotiate the turn on the off ramp and collided with a concrete barrier.
The officers parked behind the Honda. Officer Adams approached the vehicle and saw defendant pinned in the driver’s seat. The right front passenger, Jose Ramos, was not breathing and had no pulse. The officers performed CPR on Ramos, but were unable to revive him. The Mercedes that Adams had seen on the freeway stopped at the scene of the accident. Adams spoke with the driver, Gregory Monette.
Later that morning, Officer Richard Cheever arrived at the scene of the collision. He determined that the Honda had been stolen. (The Honda belonged to Wahi Haykaz.) Inside the vehicle, Cheever located two navigational systems, a backpack containing numerous tools and a Nintendo game controller, a compact disc case, an eyeglass holder, a green jewelry bag, and a package of toilet paper.
One of the navigational systems, the compact disc case, and eyeglass holder belonged to Kimberlee Wong. The other navigational system was owned by Aaron Lyles.
At approximately 9:15 a.m. on March 29, Manijeh Kadkhoda, who lived on the same street as Gregory Monette, was advised by her husband that the hatch of her Toyota 4-Runner was open and the police were outside. She had parked and locked the vehicle in her driveway on the morning of the 28th. Later, her husband went out to retrieve an item from the trunk. After doing so, he locked the vehicle. When Kadkhoda looked inside her Toyota, she discovered that a large package of toilet paper she had purchased and a jewelry bag containing coins were missing. She noticed some scratches around the lock on the driver’s side door that were not there previously, and she was unable to open that door with her key. The key had been working properly. Kadkhoda located a chisel in the backseat that did not belong to her. Neither she nor her husband gave anyone permission to enter the Toyota. She identified the jewelry bag and package of toilet paper that Officer Cheever found in the stolen Honda as her property.
Dr. Carla Toms performed the autopsy on Jose Ramos, and determined the cause of death to be multiple traumatic injuries. Ramos suffered a blow that tore his aorta and caused him to bleed out.
II. The Defense Case
Between 8:00 and 9:00 p.m. on March 28, defendant was in his neighborhood when he saw two friends, Jose Lemus and Marcos Mejia. While the three were talking, Jose Ramos appeared. Ramos asked defendant if he wanted to make some money, and defendant said that he did, as he needed to provide for his newborn son. Ramos gave defendant the keys to a Honda and told him that he was to drive Ramos around that night. Defendant had never seen the vehicle before. Prior to leaving the neighborhood, three other individuals got into the Honda: Lemus, Mejia, and a male whom defendant did not know very well.
The Honda left the San Fernando Valley, where defendant lived, and ended up in the San Gabriel Valley. Once there, defendant made several stops at Ramos’s direction. At each stop Ramos and the male would get out of the car with a black backpack. They would return and defendant would drive away. Defendant estimated that they were in the San Gabriel Valley for about three hours.
Although defendant claimed not to know what Ramos and the male were doing after they left the vehicle, he “had a feeling something was bad.” On a couple of occasions while he was waiting for the men to return, defendant heard a car alarm go off. Sometime after midnight on March 29, the group arrived in a city near the beach. Ramos said they were in Manhattan Beach. Again, Ramos would tell defendant to stop the car and Ramos and the male would exit and return. In total, the group made 10 stops. Defendant never got out of the car.
The final stop took place on Bel Terrace. Defendant parked the Honda and Ramos, Lemus, and the male got out of the car. As defendant sat in the driver’s seat, he noticed a Mercedes drive by. Defendant’s three companions ran back to the Honda. Ramos got into the front passenger seat and told defendant to hurry up and drive. Ramos directed defendant to drive to the freeway.
As they were driving, Ramos said, “The car is coming back.” Defendant saw a car with flashing lights approaching quickly. Ramos yelled to keep driving. Defendant noticed the car following them was the Mercedes he had seen on Bel Terrace. The Mercedes got directly behind the Honda. Defendant knew he was traveling “[r]eal fast.”
After driving for several miles, defendant decided to brake hard and take the next exit. He observed lights behind him, but did not realize a patrol car was following the Honda. Being unfamiliar with the off ramp, defendant was not aware that it turned to the right. He lost control of the car, someone yelled “Watch out, ” and the Honda hit the wall. Defendant suffered a fractured ankle and broken ribs.
Defendant spoke to officers at the hospital. He did not tell them that a friend named Bobby drove him to the beach at approximately 8:00 or 9:00 p.m. on March 28. He denied saying that he did not know the identity of the right front passenger in the Honda, Jose Ramos, or that he had never met Ramos before the evening of the 28th.
III. Prosecution Rebuttal
At approximately noon on March 29, Officer Gabriel Marquez spoke to defendant at the hospital. Defendant said that at around 7:00 p.m. on March 28, a friend named Bobby drove defendant, Jose Lemus, and Renau Escobar to the beach in Santa Monica. When defendant left the beach, he got into the Honda that he drove that night. Defendant claimed not to know the individual who was in the front passenger seat at the time of the accident, having just met him at Santa Monica Beach.
DISCUSSION
I. Auto Burglary Is a Predicate Felony for Purposes of the Felony-Murder Rule
Defendant contends that auto burglary is not a predicate felony for purposes of the felony-murder rule. Several Court of Appeal decisions have held to the contrary, concluding that a killing that occurs during the commission of an auto burglary is first degree felony-murder under section 189. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 77; People v. Fuller (1978) 86 Cal.App.3d 618, 622-624; People v. Thomas (1975) 44 Cal.App.3d 573, 575.) We agree with the holding of those cases. Section 189 states that “All murder... which is committed in the perpetration of, or attempt to perpetrate... burglary... is murder of the first degree.” The statute does not draw a distinction between the degree of burglary or whether the burglary is of a structure or a vehicle. It is clear that a murder committed during the commission of any burglary is first degree murder. We conclude that auto burglary is a predicate felony for purposes of the felony-murder rule.
Defendant attempts to avoid this conclusion by relying on the reasoning of People v. Nichols (1970) 3 Cal.3d 150, disapproved on another point by People v. Henderson (1977) 19 Cal.3d 86, 96-97. In that case, the Supreme Court considered whether the burning of an automobile proscribed in section 449a constituted arson within the meaning of section 189. This was necessary because the crime of arson is not defined in the Penal Code. Tracking legislative history, the court concluded that the “Legislature did not intend the word ‘arson’ as used in first degree felony-murder provisions of section 189 to apply to the burning of those items enumerated in section 449a.” (People v. Nichols, supra, 3 Cal.3d at p. 162.) Similarly, defendant suggests, the Legislature did not intend the term burglary in section 189 to include auto burglary.
Nichols does not support defendant’s contention. Unlike arson, the crime of burglary is exhaustively defined in one section. Burglary clearly and unambiguously includes the entry of a “vehicle... when the doors are locked.” (§ 459.) Nichols simply does not apply to our case.
II. Finding Auto Burglary to Be a Predicate Felony Does Not Violate Equal Protection
Defendant argues that finding auto burglary is a predicate felony for purposes of the felony-murder rule violates equal protection. We disagree. “‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530.) Defendant does not attempt to define the two similarly situated groups at issue in this case. He merely asserts that one who burns an automobile commits an arguably more dangerous act than one who breaks into a vehicle. Thus, he claims, it is unfair to allow the act of auto burglary to lead to a first degree murder conviction when the crime of arson does not. Defendant’s analysis of the concept of equal protection is flawed.
“‘“Persons convicted of different crimes are not similarly situated for equal protection purposes.” [Citations.] “[I]t is one thing to hold, as did [People v. Olivas (1976) 17 Cal.3d 236, ] that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally.” [Citation.]’ [Citation.]” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) In that defendant is comparing the treatment of those who commit entirely different crimes, his equal protection claim necessarily fails.
III. Defendant’s Sentence Does Not Constitute Cruel and/or Unusual Punishment
Defendant contends that his sentence constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and cruel or unusual punishment under article I, section 17 of the California Constitution. He alleges the imposition of a 25-year-to-life sentence for the murder of Ramos is disproportionate to his personal responsibility and moral guilt and shocks the conscience.
A. The United States Constitution
“The Eighth Amendment prohibits imposition of a sentence that is ‘grossly disproportionate’ to the severity of the crime. [Citations.] In a noncapital case, however, successful proportionality challenges are ‘“exceedingly rare.”’ [Citation.] In the rare case where disproportionality can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) sentences imposed for commission of the same crimes in other jurisdictions. [Citation.] ‘[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.’ [Citations.]” (People v. Haller (2009) 174 Cal.App.4th 1080, 1087-1088.)
Defendant attempts to downplay the gravity of the offense he committed by pointing to the fact that the victim was engaged in criminal activity prior to his death and that defendant did not have the intent to kill. The fact remains that defendant’s conduct resulted in the needless death of a young man. No matter how defendant attempts to color the facts, a murder, intentional or not, is a grave offense that justifies the sentence imposed. By way of comparison, the United States Supreme Court refused to find grossly disproportionate a life sentence without the possibility of parole for the possession of 650 grams of cocaine. (Harmelin v. Michigan (1991) 501 U.S. 957.)
Defendant emphasizes his youth and lack of a serious record and asserts he is an offender who does not deserve the harsh sentence he received. He relies heavily on the case of People v. Dillon (1983) 34 Cal.3d 441, abrogated on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1185-1186, to support his claim that his sentence should be reduced. We are not persuaded.
The Dillon court’s decision was based strictly on the facts of that case. The court took great pains to note several salient factors that led to the commission of the crime: (1) the defendant was an extremely immature 17-year-old high school student at the time of the offense; (2) the shooting occurred after one of the defendant’s colleagues fell, causing the shotgun he was carrying to discharge; (3) the defendant thought one of his friends had been shot; (4) the defendant saw the victim, Dennis Johnson, carrying a shotgun; (5) a few minutes later the defendant heard a second shotgun blast; and (6) the defendant fired when he thought Johnson was preparing to shoot him. “According to defendant, as Johnson drew near he shifted the position of his shotgun and ‘he was pointing it outwards and I thought he was getting ready to shoot me.... I just didn’t know what to do.... I just saw him swing the gun behind the trees, and that’s when I started firing.’” (People v. Dillon, supra, 34 Cal.3d at pp. 482-483.)
“[A] clinical psychologist testified that after conducting a series of tests and examinations he concluded that defendant was immature in a number of ways: intellectually, he showed poor judgment and planning; socially, he functioned ‘like a much younger child’; emotionally, he reacted ‘again, much like a younger child’ by denying the reality of stressful events and living rather in a world of make-believe. In particular, the psychologist gave as his opinion that when confronted by the figure of Dennis Johnson armed with a shotgun in the circumstances of this case, defendant probably ‘blocked out’ the reality of the situation and reacted reflexively, without thinking at all. There was no expert testimony to the contrary.” (People v. Dillon, supra, 34 Cal.3d. at p. 483.)
The court also noted that “after 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.” (People v. Dillon, supra, 34 Cal.3d at p. 487.) In fact, the judge decided not to sentence the defendant to state prison, believing that a commitment to the Youth Authority was a more appropriate punishment. However, the sentence was reversed when the Court of Appeal determined that a minor convicted of first degree murder was ineligible as a matter of law for commitment to the Youth Authority and issued a writ of mandate directing the trial court to vacate the order of commitment. (Id. at pp. 486-487.)
In finding that the defendant’s conviction should be reduced to second degree murder, the court relied on: (1) the defendant’s extreme immaturity; (2) the fact that “no greater punishment could have been inflicted on defendant if he had committed the most aggravated form of homicide known to our law—a carefully planned murder executed in cold blood after a calm and mature deliberation” (People v. Dillon, supra, 34 Cal.3d at p. 487); (3) its belief that the judge and jury accurately assessed the defendant’s culpability; and (4) the “petty chastisements handed out to the six other youths who participated with him in the same offenses. [Fn. omitted.]... At the very least they were aiders and abettors and hence principals in the commission of both the attempted robbery and the killing of Johnson. (Pen. Code, § 31.) Yet none was convicted of any degree of homicide whatever, and none was sentenced to state prison for any crime.” (Id. at p. 488.) The one member of the group who was an adult received probation and the other five juveniles were made wards of the court. Of the minors, only one was detained and the other four were placed home on probation. “In short, defendant received the heaviest penalty provided by law while those jointly responsible with him received the lightest—the proverbial slap on the wrist.” (Ibid.)
The Dillon case does not assist defendant. The starkest difference between Dillon and the present matter is that none of defendant’s accomplices in the burglaries were principals in the murder. Defendant alone was responsible for the decisions he made on the fateful morning. Motivated not by fear for his life, but fear of capture, he drove the Honda in an exceedingly reckless manner and ultimately crashed into a freeway barrier because his excessive speed rendered him unable to negotiate the curve on the off ramp. During his dash along the San Diego freeway, he endangered not only his companions, but also the lives of the occupants of the other vehicles in his path. In addition, there is no evidence in the record that defendant suffered from the same psychological deficits as the defendant in Dillon or that he could not appreciate the consequences of his actions.
We decline to conclude that defendant’s punishment is disproportionate to his criminal responsibility.
B. The California Constitution
“Under the California Constitution, punishment is disproportionate if it ‘shocks the conscience’ and offends fundamental notions of human dignity, considering the offender’s history and the seriousness of his offenses. [Citation.] We first examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. [Citation.] Relevant factors include the facts of the current crimes, the nature of the offenses, aggravating circumstances, violence, whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general, and penological purposes of the prescribed punishment. [Citation.] Second, we compare the penalty with penalties prescribed in California for different, more serious offenses. [Citation. ] Third, we compare the penalty with penalties for the same offenses in other jurisdictions. [Citation.] Our authority is circumscribed by the separation of powers doctrine. [Citation.]” (People v. Haller, supra, 174 Cal.App.4th at p. 1092.)
For the reasons set forth above, we cannot say that defendant’s punishment shocks the conscience. As defendant fails to address whether his sentence is disproportionate when compared to sentences in this state for more serious offenses or to sentences in other states for the same offense, we need go no further. Defendant’s sentence passes muster under the California Constitution.
IV. The Sentence for Count 3 and Count 5 Must Be Stayed
Defendant was sentenced to a concurrent two-year term for the burglary of Manijeh Kadkhoda’s Toyota. He argues that because his first degree murder conviction was predicated on the commission of that burglary, the crimes were based on the same act and section 654 prohibits punishment for both. The Attorney General contends sentencing defendant on both counts was appropriate for two reasons: defendant harbored separate objectives for the two crimes and the crimes involved separate victims. We agree with defendant.
When a defendant is convicted of first degree murder during the commission of a felony, he or she may be punished only for the most serious offense, the murder. (People v. Meredith (1981) 29 Cal.3d 682, 695-696; People v. Milan (1973) 9 Cal.3d 185, 196-197.) Nonetheless, the Attorney General argues defendant may be sentenced for both the murder and burglary because each crime had a separate victim. The murder victim was Ramos and the burglary victim was Kadkhoda. Although section 654 does not preclude separate punishment where crimes of violence are committed against different victims (People v. King (1993) 5 Cal.4th 59, 78), where “the offenses arising out of the same transaction are not crimes of violence but involve crimes against property interests of several persons, [the Supreme Court] has recognized that only single punishment is permissible.” (People v. Bauer (1969) 1 Cal.3d 368, 378.) Thus, the Bauer court held that the defendant could not be sentenced for robbery and the crime of automobile theft even though there were multiple victims. Here, because the auto burglary in count 3 involved a crime against property, the multiple victim exception of section 654 does not apply. The sentence for that count must be stayed.
Defendant was convicted in count 4 of the burglary of Kimberlee Wong’s vehicle and in count 5 of receiving the property stolen from her vehicle. For those crimes, the trial court sentenced defendant to concurrent terms. He contends the sentence on count 5 must be stayed, and the Attorney General agrees. We concur. Defendant may not be sentenced for burglary and for receiving stolen property taken during the commission of the burglary. (People v. Allen (1999) 21 Cal.4th 846, 864-865.)
DISPOSITION
The sentences for counts 3 and 5 are stayed. In all other respects, the judgment is affirmed. The superior court clerk is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, Acting P.J.MANELLA, J.