Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04HF0311, Frank F. Fasel.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a); 189), with a robbery-murder special circumstance (§ 190.2, subd. (a)(17)). Defendant contends his sentence of life in prison without the possibility of parole (LWOP) based on the felony-murder special circumstance is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. According to defendant, his sentence is constitutionally infirm because the special circumstance purportedly justifying LWOP fails to narrow the class of persons eligible for such a severe penalty. As we explain below, we disagree and therefore affirm the judgment.
All further statutory references are to the Penal Code.
I
Factual and Procedural Background
The relevant facts are undisputed. On March 2, 2004, defendant and his accomplice entered a 7-Eleven convenience store to commit robbery. Defendant beat the store clerk over the head with a flashlight, hitting him eight times, and his friend stabbed the clerk in the heart. Defendant’s blows fractured the victim’s skull in three places. Unable to open the cash drawer, the pair fled the scene empty-handed. Defendant’s accomplice drove away and defendant fled on foot. The victim, Suresh Dass, died at the scene. Security guards who witnessed defendant and his compatriot escape claimed they were laughing as they exited the store, which defendant denied.
About 5 minutes later, an Irvine Police Department officer arrived on the scene and determined the victim was dead. With the help of a police dog, the officer located and apprehended defendant. The officer also recovered multiple items near the 7 Eleven, including a knife, a pair of gloves, a padlock, a pair of pants, a backpack, a ski cap, a flashlight, a black T-shirt and a black jacket. DNA testing on the gloves revealed the victim’s blood on the outside and defendant’s DNA on the inside. The pants and one of the masks also contained defendant’s DNA.
A surveillance video of the murder was played for the jury. Defendant admitted to being the person depicted in the video beating the victim with the flashlight, but testified he did not intend to kill the store clerk and did not “have any idea” what he was “doing in that store.” Claiming unconsciousness as a result of drug use, defendant admitted he was addicted to and under the influence of methamphetamine at the time of the murder. Because he needed money for rent, he intended to rob his drug dealer but, unable to contact his dealer, he remained in his car smoking marijuana for five hours. Eventually, defendant resolved to rob any drug dealer. The plan finally changed to robbing the 7-Eleven store, but defendant did not intend to hurt anyone. After the murder, defendant hid 100 yards away from the store and lied to police by claiming he had been at a party. He now appeals his LWOP sentence.
II
Discussion
Defendant asserts the special circumstance finding making him LWOP-eligible “does not provide a meaningful basis to distinguish between felony-murder and the special circumstance.” According to defendant, “the elements used to support [the] special circumstance finding provide no meaningful difference to distinguish a defendant sentenced to death or life without the possibility of parole from those convicted of first degree murder who are sentenced to life with the possibility of parole....” Defendant is mistaken.
The trial court instructed the jury with Judicial Council of California Jury Instructions CALCRIM No. 730, which explicitly stated that, beyond finding defendant had committed felony-murder, “[i]n addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit attempted robbery independent of the killing. If you find that the defendant only intended to commit murder and the commission of attempted robbery was merely a part of or incidental to the commission of that murder, then the special circumstance has not been proved.” (Italics added.)
As our Supreme Court has explained, the special circumstance exempts from the law’s harshest punishment those offenders whose “sole object” in committing the underlying felony, e.g., robbery, “is to facilitate or conceal the primary crime” of murder. (People v. Green (1980) 27 Cal.3d 1, 61 (Green), overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Green explained: “In the case at hand, for example, it would not rationally distinguish between murderers to hold that this defendant can be subjected to the death penalty because he took his victim’s clothing for the purpose of burning it later to prevent identification, when another defendant who committed an identical first degree murder could not be subjected to the death penalty if for the same purpose he buried the victim fully clothed — or even if he doused the clothed body with gasoline and burned it at the scene instead. [Fn. omitted.]” (Ibid.)
Noting that concealing the victim’s identity was not itself an enumerated special circumstance, the Supreme Court in Green concluded: “To permit a jury to choose who will live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive ‘the risk of wholly arbitrary and capricious action’ condemned by the high court plurality in Gregg [v. Georgia (1976) 428 U.S. 153, 189].” (Green, supra, 27 Cal.3d at pp. 61-62.) Accordingly, the court construed the felony-murder special circumstance (former § 190.2, subd. (c)(3), now subd. (a)(17)) to apply to “those defendants who killed in cold blood in order to advance an independent felonious purpose” and not, as discussed, to a robbery “merely incidental to the murder” (Green, at p. 61). CALCRIM No. 730, as excerpted above, accurately tracks this distinction.
Defendant notes that CALCRIM No. 730 shares with the “ordinary,” i.e., nonspecial-circumstance felony murder instructions (see CALCRIM Nos. 540A & 540B) the requirement that “The defendant must have intended to commit or aid and abet the felony of robbery before or at the time of the act causing the death.” (Italics added.) Defendant asserts this overlap renders special-circumstance felony murder indistinguishable from ordinary felony murder because a person harboring — before committing murder — an intent to also rob the victim after the slaying could not meaningfully commit the crimes independently, presumably because the defendant harbored both intents simultaneously. But as the Supreme Court has explained, “the determination as to whether or not a murder was committed during the commission of robbery or other specified felony is not ‘a matter of semantics or simple chronology.’ [Citation.] Rather, this determination involves proof of the intent of the accused.” (People v. Thompson (1980) 27 Cal.3d 303, 322.) Thus, if the defendant’s intent, though arising before he or she commits the murder, is simply to rob the victim after death to conceal the crime, as in Green, or to throw suspicion onto a stranger by creating the appearance of a robbery-murder (Thompson, at pp. 323-324), the defendant does not fall within the Legislature’s reservation of special circumstance penalties for “murder... in the commission of” a robbery. (§ 190.2, subd. (a)(17).) Rather, such conduct amounts to “the exact opposite, a robbery in the commission of a murder.” (Green, supra, 27 Cal.3d at p. 60.)
Because, as construed in Green, the Supreme Court has upheld the Legislature’s felony-murder special circumstance as rationally distinguishing between those felony-murderers eligible for the harshest penalties and those who are not because the underlying felony was only ancillary to the murder, defendant’s constitutional challenge fails. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Additionally, we note the Eighth Amendment prong of defendant’s challenge fails for an independent reason: he was not sentenced to death, and the high court has declared that for crimes “as serious and violent as... felony murder... [,] ‘no sentence of imprisonment would be disproportionate.’” (Harmelin v. Michigan (1991) 501 U.S. 957, 1004, quoting Solem v. Helm (1983) 463 U.S. 277, 290, fn. 15.) Furthermore, because defendant does not face the death penalty, his due process challenge under the Fourteenth Amendment is evaluated on an as-applied basis (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309), yet he identifies no facts pertinent to his particular offense or circumstances that mark his sentence as arbitrary. (Compare Green, supra, 27 Cal.3d at p. 61 [irrational that defendant faced death for stealing personal items to thwart investigation, but would not had he burned the body and those items.) Instead, as discussed, defendant’s facial challenge contending no distinction separates the felony-murder special circumstance from felony murder is without merit. Consequently, defendant has shown no basis for reversal.
III
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.