Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA325247 Robert J. Perry, Judge.
Sharon M. Jones, 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 D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
George Gallegos appeals from his conviction by jury verdict of first degree murder. He contends the conviction must be reversed because his confession was not voluntary. He also challenges the sufficiency of the evidence to support the special circumstance findings and the gang enhancement under Penal Code section 186.22, subdivision (b). Appellant claims the special circumstance under section 190.2, subdivision (a)(21) is unconstitutional on its face and as applied. He also argues his sentence of life without the possibility of parole is cruel and/or unusual punishment in violation of the federal and state Constitutions.
All statutory references are to this code.
Appellant failed to preserve the claim that his confession was involuntary because the basis for this argument was not raised in the trial court. We reject his claim that his counsel was ineffective in failing to raise the argument since the circumstances of appellant’s confession demonstrate no improper offers of leniency which would render it involuntary. Substantial evidence supports the gang special circumstance finding and enhancement. The special circumstance of murder by discharging a firearm from a vehicle also was supported by substantial evidence and is not unconstitutional under either the state or federal Constitution. We reject appellant’s argument that his sentence was excessive under the state and federal Constitutions.
FACTUAL AND PROCEDURAL SUMMARY
On the evening of October 29, 2006, Manuel Vega, Freddie Saravia, and Juan Torres were outside a liquor store in an area claimed by their tagging crew, “Sex 4 Money” or (“S4M,” also referred to as “SRMK”) and the Easyrider gang, which was aligned with S4M. S4M and Easyrider were rivals of the A2M tagging crew and the Harpys gang. A black Nissan Sentra pulled up, stopping about 10 to 15 feet away. The passenger in the back right passenger seat asked Vega, “‘Do you write?’” or “‘Where are you from?’” Vega responded, “‘Yeah, S4MK.’” As Vega stepped off the sidewalk to walk toward the car, he saw an extended arm and a spark, then heard shots. The Sentra drove away to the south. Vega could not identify the shooter or anyone else in the Sentra. Saravia was shot in the chest and died at the scene. Two.22 caliber brass shell casings were retrieved from the street at the scene of the shooting.
In July 2007, while under arrest for unrelated offenses, appellant was interviewed by Los Angeles Police detectives. He was 17 at the time of the interview. He said that in May 2006, his brother and a friend were shot by someone from the S4M or the “‘18’s.’” As a result, his brother was paralyzed. During the interview, appellant confessed to the October 2006 shooting at the liquor store in which Saravia was killed. He told officers that after attending the funeral of a Harpys gang member who had been killed in a gang shootout, he and Danny Martinez drove a black Nissan to Washington Street. Danny gave appellant a.22 caliber gun. When they passed the liquor store, appellant saw three men and asked where they were from. One said “S4M.” Appellant said he opened the car door, got partially outside, shot three times, and got back into the car.
Appellant was charged and convicted of the first degree murder of Saravia. The jury found appellant personally discharged a firearm, causing death (§ 12022.53, subd. (d)) and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). It also found true special circumstance allegations that the murder was a drive-by shooting committed in furtherance of gang activities (§ 190.2, subd. (a)(21) & (22)). Appellant was sentenced to life imprisonment without the possibility of parole, plus 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). This timely appeal followed.
2 Appellant also was charged with one count of murder and one count of attempted murder based on a separate incident. The jury was unable to reach a verdict on those counts and they were dismissed. Daniel Martinez was charged as a codefendant in Saravia’s murder. His trial was severed from appellant’s trial.
DISCUSSION
I
Appellant argues his confession was involuntary because of “numerous implicit offers of leniency” made by the interrogating officers.
“The federal and state Constitutions both bar the use of involuntary confessions against a criminal defendant. [Citations.] A confession is involuntary if it is ‘not “‘the product of a rational intellect and a free will’”’ (Mincey v. Arizona (1978) 437 U.S. 385, 398), such that the defendant’s ‘will was overborne at the time he confessed.’ (Lynumn v. Illinois (1963) 372 U.S. 528, 534.) In assessing allegedly coercive police tactics, ‘[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.’ (People v. Ray (1996) 13 Cal.4th 313, 340.) Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.)” (People v. Smith (2007) 40 Cal.4th 483, 501.)
After the jury was selected, the trial court indicated that counsel for appellant had a motion to suppress appellant’s confession. The prosecutor responded that she had no notice of such a motion, but would see if Detective Arteaga would be available to testify on the motion. Defense counsel did not indicate that the testimony of any of the other interrogating detectives would be required. At the beginning of the hearing on the motion, the trial court said: “The representation of the motion was, that the defendant was promised by the detectives that if he admitted to having been the shooter, that they would let him go home.” The court indicated this was the area about which defense counsel would be allowed to question witnesses.
Appellant testified at the hearing on the motion to suppress that a uniformed officer told him after his arrest to admit the crime so appellant could go home. Appellant believed the statement because it was made by an officer. This belief motivated him to admit the crime because he wanted to go home. All the officers who questioned him at the station were in uniform. The prosecutor called Detective Daniel Gersna, who testified that the interrogating officers were not in uniform. Officer Gersna denied telling appellant he could go home if he admitted to participating in this murder. The trial court did not believe appellant’s testimony and the motion was denied.
Respondent argues that appellant failed to preserve his claim that implicit offers of leniency rendered his confession involuntary because this ground was not raised in the trial court. On a motion to suppress a confession, where the trial court had no opportunity to address any possible factual disputes about what occurred during an interrogation, a suppression claim will not be addressed for the first time on appeal. (People v. Ray, supra, 13 Cal.4th at p. 339 [where defendant sought suppression of his confession at trial only on the ground that there was a delay in advising him of his Miranda rights, his claim that the confession was involuntary because it was given in exchange for a promised benefit was forfeited on appeal]; see also People v. Smith, supra, 40 Cal.4th at p. 506 [defendant forfeited claim based on lapse in police recording of interrogation by failing to object in the trial court to the incomplete recording].) The Ray court reasoned that the new claim was waived: “[T]he parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. Under such circumstances, a claim of involuntariness generally will not be addressed for the first time on appeal.” (People v. Ray, supra, 40 Cal.4th at p. 339.)
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant attempts to preserve the issue by arguing the record is sufficient to permit review of the issue, and asserts voluntariness must be based on the totality of the circumstances. Alternatively, he claims that the failure of his trial counsel to preserve the issue amounts to ineffective assistance of counsel.
People v. Ray, supra, 40 Cal.4th at page 339 is controlling. Appellant’s argument in the trial court was based on his testimony that the officers promised he could go home if he confessed. Here, the argument is that the officers made other, implicit, offers of leniency which rendered his statement involuntary. Detective Thompson, who made most of the comments challenged by appellant, did not testify at the hearing. The trial court had no opportunity to explore the factual basis for appellant’s argument. The claim is forfeited. As we explain below, appellant has also failed to demonstrate ineffective assistance of counsel.
During the interrogation, appellant admitted that he knew a Harpys gang member named Brian who was shot and killed the previous year. He and Danny Martinez attended Brian’s funeral. Appellant’s claim that his confession was coerced is based on the following portion of the interview.
Appellant denied having done anything after Brian’s funeral. Detective Thompson said: “Here’s the problem, George, is that, what you’re telling us right now is not true. We can prove it’s not true, and when it goes to court, there isn’t a person alive that is going to believe you. Now, you can sit here and say, ‘I don’t know nothing about nothing,’ and that’s fine. That makes it real easy on us. We’ve already got our case. Now, because you’re... a juvenile, because you’re a younger guy... and because of what happened to your brother,... there are ways of explaining this where it doesn’t make you look—put you in such a negative light. Okay? I understand what happened. We understand why things went the way they went. But if you’re going to sit here and lie to us about everything we ask you, everything that we’ve... talked to you about is... nothing that’s true has come out of your mouth. And you may have a very good reason for what—for what happened, for why it happened. You may have a good reason for that. But, you know what, if everything you tell us is a lie then we’re not going to believe you.”
Detective Arteaga then told appellant that this was his only opportunity to tell his side of the story. He said the officers had been talking to people and that appellant was there because the officers had a good case. Detective Thompson then said that appellant knew that somebody was killed that night and that “[T]here may have been a good reason, you know. We don’t know. I mean, you could have been with a bunch of fellows. You wanted to go bang on someone. Someone could have pulled a strap. Someone tossed you a gun. We don’t know. What I do know is this, your brother gets shot and paralyzed, and that has got to just tear you up. I know it would tear me up.” He continued: “Guys... are going to start pumping you up, filling your head full of ideas that they probably shouldn’t. [Y]ou already told me your cousins are crazy. I believe that. The guys are probably dumping thoughts in your head that you probably wouldn’t normally think of, but all of a sudden it’s making sense. You’re mad. They put this undue burden on your family. Hell, yeah, I’d be upset. So next thing you know, you’re—you’re put in the position you don’t want to be in. I’m telling you, George, is you’re a young guy. You’re a minor, and you’ve got options. And we could paint this any way you want to paint it. But I’ll tell you right now, since the way it’s sitting right now, you’re going to look like a cold-blooded killer. That’s the bottom line.”
Before appellant said anything, the detectives gave appellant examples of justified killings. These included scenarios in which someone stepped in front of the car appellant was driving and was hit, and shootings in self-defense. They explained that killing someone in self-defense would not make appellant a murderer. Detective Gersna explained that “it really boils down to you, as to whether or not you’re [going] to [be] painted as a killer, or whether or not you got a choice.” Appellant then confessed to the shooting.
On this record, we find no basis to conclude that trial counsel was incompetent in failing to seek suppression based on implicit offers of leniency. In People v. Holloway (2004) 33 Cal.4th 96, the defendant argued that suggestions by an officer that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout and that “such circumstances could ‘make[] a lot of difference,’” “[fell] ‘far short’” of improper promises of lenient treatment in exchange for cooperation. (Id. at p. 116.) The court pointed out that the officers did not represent that they, the prosecutor, or the court would grant the defendant any particular benefit if he told them how the killings happened. To the extent the officer’s statements implied that if the killings were the result of drunken blackout or an accident, the court concluded that he “did no more than tell defendant the benefit that might ‘“flow[] naturally from a truthful and honest course of conduct”’ [citation] for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision.” (Ibid.)
Based on People v. Holloway, 33 Cal.4th at page 116, we conclude that a motion to suppress on the ground the officers made implicit offers of leniency would have failed. The statements on which appellant relies properly advised him that various circumstances may reduce the degree of homicide, or justify a killing. No specific benefit was offered here. Appellant puts particular emphasis on Detective Thompson’s statement that “we could paint this any way you want to paint it.” As we have stated, read in context, this statement does not constitute an improper offer of leniency. It is well established that trial counsel is not required to make frivolous or futile motions, or indulge in idle acts. (See People v. Zavala (2008) 168 Cal.App.4th 772, 780 [attorney did not render ineffective assistance of counsel by declining to make futile confrontation clause objection].) We therefore conclude trial counsel was not ineffective in failing to raise this contention. (See People v. Ray, supra, 13 Cal.4th at p. 339.)
II
Appellant challenges the sufficiency of the evidence supporting the criminal street gang special circumstance (§ 190.2, subd. (a)(22)) and the gang enhancement (§ 186.22, subd. (b)). He claims there is insufficient evidence that one of the primary activities of the A2M gang is the commission of one or more crimes enumerated in section 186.22, subdivision (e). He also argues there was insufficient evidence that he was an active member of A2M at the time of the offense or that he committed the murder in furtherance of gang activities.
A. Legal Principles
The definition of criminal street gang for purposes of the special circumstance codified in section 190.2, subdivision (a)(22) is linked to the definition in the criminal street gang enhancement provision of section 186.22. Section 190.2, subdivision (a)(22) provides for the death penalty or life imprisonment without the possibility of parole where: “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” Section 186.22, subdivision (f) defines criminal street gang as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Italics added.) Section 186.22, subdivision (e) defines “pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, or conviction of two or more of the enumerated offenses.
Subdivision (e) of section 186.22 defines the phrase “pattern of criminal gang activity” as “the commission, attempted commission, or solicitation of two or more ” of the offenses enumerated in that subdivision “provided at least one of those offenses occurred after the effective date of this chapter [September 26, 1988,] and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons.”
“To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320; People v. Gardeley (1996) 14 Cal.4th 605, 616-617; People v. Loeun (1997) 17 Cal.4th 1, 8.)” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1399-1400.)
Thus to prove a group is a criminal street gang, the prosecution must prove both that a primary activity of the group is the commission of enumerated offenses and that it has engaged in a pattern of criminal activity by commission of two or more of these offenses.
Appellant does not challenge the sufficiency of the evidence of the first element.
We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence to support a conviction. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “When reviewing the sufficiency of evidence to support a special circumstance, the relevant inquiry is ‘“whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.”’ [Citations.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (Lindberg, at p. 27.)
B. Proof of Criminal Street Gang
Los Angeles Police Officer Rene Gonzalez testified as an expert gang witness for the prosecution. He described the membership, territory and signals used by the Harpys gang and its associate gang, the A2M. He explained that S4M (Sex for Money) is a common rival of Harpys and A2M. The prosecutor offered a certified minute order reflecting a conviction of Jose Beltran for attempted robbery on September 20, 2006. After the court gave the jury a limiting instruction on the use of this evidence, the prosecutor interrupted to say that she had reached a stipulation with the defense attorney. The court asked counsel whether they would stipulate “that for purposes only of defining Harpys and A2M as a gang that the requirement of predicate acts have been met?” (Italics added.) Both appellant’s attorney and the prosecutor so stipulated. The court indicated there would be no additional evidence of crimes committed by other people, and the prosecutor withdrew the proffered exhibit.
Thus the parties agreed that for the purposes of defining the Harpys and A2M as gangs, the requirement of predicate acts had been met. The court ruled that no additional evidence of the gangs’ crimes other than the charged offenses would be presented. We conclude that the only reasonable interpretation of the stipulation is that the parties agreed that both required elements—the primary activities and pattern of activities—were established. Appellant’s effort to parse the stipulation so that it applies only to the pattern of criminal activity element is contrary to the court’s statement that the stipulation was to establish the acts necessary to prove the Harpys and A2M are criminal street gangs under sections 186.22 and 190.2, subdivision (a)(22).
C. Appellant’s Active Membership
Appellant argues there is no evidence he was an active member of A2M when this crime was committed in October 2006 because the gang expert’s testimony was about his status during an investigation the year before. Officer Gonzalez testified that he had detained appellant in an investigation in 2005. In his opinion, at the time of trial, appellant was a member of A2M. He based this testimony on appellant’s past admission of gang membership and a “reliable source of an individual who is from A2M.” He explained that appellant was always with a member of A2M when he stopped him. A search of appellant’s residence in July 2007 revealed a paper that contained graffiti with appellant’s gang moniker (Bongs) and the moniker of his brother. Appellant was asked at trial: “And you were from A2M, right?” He answered: “Well, I was.” This statement could be understood as meaning he was a member of the gang at the time of the shooting, or that he had left the gang at some unspecified time. He also said he wrote his moniker “Bongs” on the piece of paper.
We conclude that the jury could conclude from this evidence that appellant was a member of A2M at the time of the shooting.
D. Commission of Murder to Further Gang Activities
Appellant also argues the evidence is insufficient to prove he committed the murder to further the activities of A2M because “the primary motive for the killing was that appellant believed a member of S4M had shot and paralyzed his brother.” He contends, “[T]he shooting of Saravia had nothing to do with furthering the activities of the gang which, according to the prosecution expert consisted primarily of tagging. [¶] Rather, according to the weight of the evidence before the jury, the killing was motivated primarily by a quest for personal revenge.”
The evidence established that appellant was a member of A2M, which was affiliated with Harpys and was a rival of S4M. Appellant believed his brother was shot and paralyzed by someone from S4M. On the day of the shooting, appellant attended the funeral of a Harpys gang member who had been killed in a gang shootout. When appellant saw the victim and his companions outside the liquor store, he asked them whether they “write” or where they were from. Vega said: “‘Yeah, S4MK.’” The person who asked if they “wrote” then fired the fatal shots.
Officer Gonzalez, the gang expert, testified that younger members of a gang have to prove themselves to the gang by committing crimes for the gang to gain notoriety for that gang and for the individual himself. A young member of the gang has to “display his commitment for the gang to the other gang members in his gang.” Officer Gonzalez had seen this occur with A2M and Harpys. He testified that members of A2M had committed felony vandalism, robberies and assault with deadly weapons for the benefit of the gang. Officer Gonzalez testified that Harpys and A2M attempt to instill fear and intimidation in the community.
Appellant challenges Officer Gonzalez’s answer to the following hypothetical as too speculative: “Assume that an A2M gang member had a brother who was killed by a person that he believed was from S4M.... I want you to assume that an A2M gang member has a brother that was shot and paralyzed. Let’s assume that six months later that same individual attended a wake for a Harpy gang member. I want you to assume that that individual and another individual drove into S4M territory... and that A2M individual then... asked, ‘What do you write’ or “Where you from’—and when one of the people on the street responded S4MK, that the A2M gang member then fired several shots at the S4M individual and ended up killing that S4M individual. Do you have an opinion as to whether that crime was committed for the benefit of a gang?”
Officer Gonzalez answered in the affirmative and said that the crime was definitely committed for the benefit of both Harpys and A2M because they share the common enemy, S4M. He explained the basis of his opinion that the shooting was for the benefit of the gang: “When the suspect came upon the rival gang member, he asked him where he was from or where do you write.” Either version meant the same thing, asking an individual what gang he claims to verify he is a member of a rival gang. This is viewed as a challenge that often invites violence. Officer Gonzalez explained the benefit to the gang from such a shooting: “Gangs operate off of fear. The more fear they can instill in their enemy and the more fear they can instill in the community makes them more successful as a gang. If an individual commits an act of murder, it’s the ultimate sacrifice for that gang. He’s willing to put his life on the line and actually take a life of a rival individual. It puts him in a higher status within his own gang and builds the reputation of the gang he belongs to.” He also explained that a gang member who kills a rival demonstrates that the gang can count on him to commit further criminal acts.
The murder of Saravia did not occur immediately after appellant’s brother was shot in May 2006. Instead, it happened several months later on the night appellant attended the funeral for an unrelated member of Harpys. A gang challenge was made just before the shooting. On this record, the jury rationally could have found the murder was committed to further the activities of A2M and its affiliate, Harpys.
III
Appellant also challenges the sufficiency of the evidence to support the drive-by special circumstance under section 190.2, subdivision (a)(21), which provides for life imprisonment or death where “[t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death....”
Section 190.2, subdivision (a)(21) has been referred to as the “drive-by” special circumstance. (See People v. Becerra (2008) 165 Cal.App.4th 1064, 1068.)
The challenge to the sufficiency of the evidence is based on the testimony of Manuel Vega, who was with Saravia when he was shot. Vega was asked what occurred after he said he wrote for S4MK. He testified: “I was going to step out on the sidewalk, like walk towards that car, when I heard the first shot.” The following colloquy occurred:
“Q. Did you see the shots coming from the car?
“A. Yeah, like I saw an arm extend.
“Q. And what did you see?
“A. I just—I just seen like a shot. Like a spark. That’s when I kind of ducked and ran by the following shot.”
On redirect, when asked how much time had elapsed between the firing of the shots and the departure of the shooter’s car, Vega said the car left “[a]s soon as the second shot. Like I heard a second shot. I just heard it like take off, the car.” Vega estimated the length of the entire incident, from the time he was asked whether he wrote to the departure of the car, was six seconds.
Appellant argues that this evidence “does not establish that the gun was fired by a person who was actually inside the vehicle when the shot was fired.” He also cites his statement to the police, which was played to the jury, in which he said: “I opened the [car] door a little bit, and then I got back in....”
We disagree with appellant’s interpretation of the evidence. Vega’s testimony was that he saw an arm extend from the car, and shots coming from the car. From this, the jury could reasonably conclude that appellant was inside the vehicle when he fired. This is substantial evidence to support the special circumstance allegation.
IV
Appellant also raises a number of constitutional challenges to the drive-by special circumstance. He contends it “violates substantive due process under the Fourteenth Amendment and violates the Eighth Amendment to the United States Constitution by conferring death eligibility for unpremeditated murder and by permitting death eligibility to turn on a commonplace fact which does not offer a reasonable basis for imposing capital punishment or the alternative punishment of life imprisonment without possibility of parole (LWOP).”
The special circumstance for intentional murder perpetrated by means of discharging a firearm from a motor vehicle was added to section 190.2 by initiative on March 26, 1996 after the Legislature enacted Senate Bill No. 9 (Stats. 1995, ch. 478). (People v. Bostick (1996) 46 Cal.App.4th 287, 293.)
A. Standing
Appellant argues he has standing to challenge the constitutionality of the special circumstance even though he was not sentenced to death because his sentence was increased by the special circumstance finding. He contends the construction of the special circumstance in his case must be consistent with its construction in a capital case. Respondent asserts: “Here, appellant suffered no injury at all. He was entirely unharmed by the statute’s provisions for death eligibility and capital punishment, because he received only life imprisonment. And as to that statutory consequence, he advances no complaint whatsoever. Accordingly, appellant has no standing to assert that the law’s possible death penalty application is unconstitutional.”
Respondent is not correct. Appellant’s sentence for first degree murder was elevated to life without the possibility of parole because the special circumstance was found true. He has standing to challenge the constitutionality of the special circumstance. (People v. Rodriguez (1998) 66 Cal.App.4th 157, 173 (Rodriguez) [if death is a permissible sentence under section 190.2, subd. (a)(21), “it follows that an LWOP sentence cannot violate the Eighth Amendment.”].)
B. The Facial Challenge
Appellant asserts the drive-by special circumstance is unconstitutional on its face under both the Eighth Amendment and the due process clause of the Fourteenth Amendment. The issue under the Eighth Amendment is whether his presence in a vehicle at the time of the shooting “furthers the Eighth Amendment requirement that California ‘narrow’ the application of the death penalty to a subset of all murders that have particular aggravating characteristics.” Appellant characterizes the substantive due process issue as “whether the classification created by the drive-by special circumstance fits the legislative purpose with sufficient precision that the statute does not extend to conduct which has no relationship to culpability.”
C. The Challenge as Applied
The jury was instructed on two theories of murder: (a) premeditated first degree murder under section 187, and (b) murder “perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death” under section 189. The verdict was first degree murder without specification of the theory or theories on which it was based. Under section 190.2, subdivision (a)(21), an intentional murder “perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death” is punishable by either the death penalty or life imprisonment without the possibility of parole.
Appellant reasons that since premeditation is not an element of special circumstances murder under sections 189 and 190.2, subdivision (a)(21), the special circumstance is unconstitutionally overinclusive in violation of the Eighth Amendment and, as applied, violates his right to substantive due process under the Fourteenth Amendment. He argues that under the Eighth Amendment, the state must avoid the arbitrary and capricious infliction of the death penalty. Appellant contends a special circumstance must be confined to a subset of murders more culpable than the ordinary premeditated murder. Since premeditation is not required under the drive-by special circumstance, appellant argues the facts are insufficient to demonstrate moral guilt in excess of ordinary premeditated murder.
Similarly, appellant argues substantive due process prohibits unequal punishment of equally culpable defendants, or more severe punishment of a less culpable defendant. The special circumstance must have a reasonable relationship to the objective sought to be attained. Here, appellant argues, the intent of the voters was to address premeditated drive-by shootings, and therefore the statute is overbroad because not all drive-by shootings are premeditated. He contends the statute is unconstitutionally arbitrary and irrational.
D. Rodriguez
Appellant acknowledges that the court in Rodriguez, supra,66 Cal.App.4th 157, addressed and rejected similar constitutional challenges under the Eighth Amendment and the due process clause. He argues the case was wrongly decided and should not be followed. Understandably, respondent argues that appellant’s constitutional arguments were rejected in Rodriguez. We examine Rodriguez in detail.
The defendant in Rodriguez argued that section 190.2, subdivision (a)(21) establishes an impermissible basis for death eligibility. The Court of Appeal held: “We need not resolve this precise issue, because the People did not seek death and defendant was not sentenced to death.” (Rodriguez, supra, 66 Cal.App.4th at p. 165.)
Like appellant, the defendant in Rodriguez based his constitutional challenge on the fact that the drive-by special circumstance does not require either premeditation or prior criminal involvement as do the other 20 special circumstances enumerated in section 190.2. (Rodriguez, supra, 66 Cal.App.4th at p. 165.) The Rodriguez court recognized that in contrast, murder by shooting out of a vehicle “need not necessarily be the product of premeditation, nor need it involve prior criminal activity of any kind (as felony murder does). Instead such a murder could be the product of sudden and spontaneous rage, occurring without premeditation and not occurring in connection with the commission (or attempt to commit) any felony.” (Rodriguez, supra, 66 Cal.App.4th at p. 165.) Generally, an unpremeditated killing resulting from spontaneous rage is second degree murder or voluntary manslaughter. (See Rodriguez, at p. 165.) We begin with the Rodriguez court’s discussion of the argument that the special circumstance is unconstitutional on its face.
1. Facial Unconstitutionality
The law regarding facial unconstitutionality under the Eighth Amendment is the same under the California Constitution. (Rodriguez, supra, 66 Cal.App.4th at p. 167, fn. 8.) “As a general rule, a statute is ‘facially unconstitutional’ if it conflicts so directly with a constitutional provision that the statute is completely invalid and unenforceable in all circumstances.” (Rodriguez, supra, 66 Cal.App.4th at p. 166.) “The general rule of facial unconstitutionality was stated in United States v. Salerno (1987) 481 U.S. 739: ‘[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [statute at issue in Salerno] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment.’ (Id. at p. 745 (lead opn. of Rehnquist, C.J.), italics added; see also Reno v. Flores (1993) 507 U.S. 292, 301 [‘To prevail in such a facial challenge, respondents “must establish that no set of circumstances exists under which the [regulation] would be valid.”’]; Keyishian v. Board of Regents (1967) 385 U.S. 589, 594 [noting that a law ‘capable of constitutional application’ is not facially invalid].)” (Rodriguez, at p. 166.)
The Rodriguez court concluded that section 190.2, subdivision (a)(21) is not invalid on the ground it is unconstitutionally overinclusive. Rodriguez conceded “that section 190.2(a)(21) can be constitutionally applied [to] ‘drive-by’ shootings....” (Rodriguez, supra, 66 Cal.App.4th at p. 172.) He did not ask the court to “second-guess the wisdom of creating a drive-by special circumstance.” (Ibid.) The Rodriguez court observed: “The Legislative materials, and common knowledge, amply support a judgment that drive-by murders have become a widespread threat to public safety, and a statutory provision directed at deterring such conduct is fully within the power of the Legislature and the voters to adopt.” (Ibid.)
Defendant Rodriguez argued that the special circumstance would be applied to reach conduct “beyond the evil sought to be remedied” in section 190.2(a)(21). The Court of Appeal reasoned: “Defendant’s forthright recognition that section 190.2, subdivision (a)(21) can be constitutionally applied in at least some circumstances—at least in cases of ‘drive-by’ shootings—necessarily refutes defendant’s claim of facial invalidity unless an exception to the general rule applies.” (Rodriguez, supra, 66 Cal.App.4th at p. 172 .) The Rodriguez court held that no exception applies: “This is not a First Amendment case, the statute is not vague for due process purposes, defendant was not involved in exercising any constitutional right, there is no danger of ‘chilling’ the exercise of constitutional rights by increasing the penalty for murder by shooting out of a vehicle,...” (Ibid.)
2. Unconstitutionality as Applied
The defendant in Rodriguez, supra, 66 Cal.App.4th 157, also challenged section 190.2, subdivision (a)(21) as applied “on the theory that ‘shooting from a vehicle is an overbroad basis for additional punishment for intentional murder.’” (Id. at pp. 172-173.) The Court of Appeal characterized this as an argument that imposition of life without the possibility of parole for an unpremeditated murder is excessive under the Eighth Amendment. (Id. at p. 173.) It cited Harmelin v. Michigan (1991) 501 U.S. 957, which upheld a sentence of life imprisonment without parole for possession of a large amount of cocaine, a crime found serious but less heinous than shooting a victim with intent to kill. (Ibid.) “In view of the Harmelin decision, it has been said that ‘... the length of a sentence of imprisonment is largely a matter of legislative prerogative, and cannot violate the Eighth Amendment in any but the rarest cases.’ [Citation.]” (Ibid.)
The jury instructions given in Rodriguez, like the instructions given here, required the jury to find that appellant intended to kill. The Court of Appeal in Rodriguez relied on Cabana v. Bullock (1986) 474 U.S. 376, People v. Anderson (1987) 43 Cal.3d 1104, and Tison v. Arizona (1987) 481 U.S. 137 to conclude “that even the death penalty would be constitutional in the situation of intentional murder by shooting out of a vehicle. It follows from these cases that a sentence of LWOP does not violate the Eighth Amendment. Hence the application of section 190.2(a)(21) in this case was not unconstitutional under the Eighth Amendment.” (Rodriguez, supra, 66 Cal.App.4th at p. 174.)
The Rodriguez court also rejected the defendant’s argument that application of section 190.2, subdivision (a)(21) was unconstitutional as a violation of the right to substantive due process under the Fourteenth Amendment. Like appellant here, the defendant in Rodriguez contended “that section 190.2(a)(21), as applied in this case, violates substantive due process under the Fourteenth Amendment ‘because it reaches conduct that does not rationally relate to the purpose of the statutory provision’—another reference to the fact that section 190.2(a)(21) encompasses unpremeditated murders.” (Rodriguez, supra, 66 Cal.App.4th at pp. 174-175.)
After a review of the relevant jurisprudence, the court in Rodriguez reasoned that the substantive due process doctrine “acts as a limitation on unreasonable and arbitrary legislation. [Citations.]” (Rodriguez, supra, 66 Cal.App.4th at p. 175.) Quoting People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329, it held “‘[a] Legislature does not violate due process so long as an enactment is... reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.’ [Citations.]” (Ibid.)
The Rodriguez court rejected the defendant’s argument that he had a substantive due process right to a sentence less than life in prison without possibility for parole for intentional, but not premeditated, murder. The court observed that determination of punishment is for the Legislature and that longer sentences for less serious crimes had been approved. (Rodriguez, supra, 66 Cal.App.4th at pp. 175-176.)
Rodriguez also argued that the purpose of the statute was “solely deterrence of gang related ‘drive-by’ shootings,” and that the rationality of the statute was to be measured against that purpose. (Rodriguez, supra, 66 Cal.App.4th at p. 176.) The Court of Appeal disagreed: “The record does reflect that this is one core purpose, but does not reflect that this is the only purpose. The statute is not drafted to limit its reach to this purpose alone, even though the Legislature could easily have done so. Instead, the statute is drafted more broadly to increase the punishment for any intentional murder perpetrated by shooting out of a vehicle with intent to kill. This more-inclusive structure is the very characteristic of the statute which defendant attacks, yet this same characteristic tends to defeat defendant’s substantive due process claim by indicating a legislative purpose broader than that argued for by defendant. No convincing basis is presented for the proposition that the legislative intent did not extend to ‘road rage’ murders (of which the instant case is arguably an example), or other murders perpetrated by shooting out of a vehicle.” (Ibid., italics added.) The court concluded the defendant was unable to demonstrate the limited legislative purpose on which his argument depended. (Ibid.)
Here appellant makes a similar argument, that the ballot pamphlet for Proposition 196 which enacted this special circumstance, told voters it “‘would allow the death penalty, or life in prison without possibility of parole, for intentional, cold-blooded, first degree murder committed by the discharge of a firearm from a motor vehicle at a person outside the vehicle.’” Appellant argues that the phrase “cold-blooded, first degree murder” was a reference to premeditated murder only, and that the pamphlet was deceptive because it did not inform voters that under section 189, murder by intentionally discharging a firearm from a vehicle with the intent to kill did not require premeditation. We disagree with appellant’s construction of the ballot pamphlet language. Like the Rodriguez court, we conclude the special circumstance was drawn broadly, to encompass unpremeditated killings so long as the other requirements of sections 189 and 190.2, subdivision (a)(21) are proven. This legislative choice, endorsed by the voters, does not render the special circumstance arbitrary or irrational. As the Rodriguez court concluded: “In the final analysis, the statute under review here is supported by the proper legislative purpose of reducing firearm carnage, particularly on the streets, and the increased punishment imposed for such conduct is rationally related to that broad purpose. No violation of substantive due process has been demonstrated.” (Rodriguez, supra, 66 Cal.App.4th at p. 181.)
The dictum in Justice Kline’s concurring opinion in People v. Bostick, supra,46 Cal.App.4th 287, which appellant cites does not compel a result different from that reached in Rodriguez. Justice Kline concluded there was no facial ambiguity in the sentencing enhancement for firing from a vehicle codified in section 12022.55. (Id. at p. 295.) He also concluded that application of that statute to discharge of a firearm from a vehicle at rest would not defeat or obstruct the legislative purpose, is not inconsistent with its application to conventional drive-by shootings, and is not patently absurd. (Id. at pp. 295-296.) Justice Kline noted that the defendant limited his argument to questions of statutory construction and did not claim the statute may be unconstitutional on its face or as applied. He noted that the defendant did not claim the statute was “fatally overinclusive for punishing conduct not within the apparent legislative purpose” and observed that “[o]verinclusiveness may or may not appear in the statute’s facial applicability to shootings in which the defendant’s presence in a car was mere happenstance.” (Id. at p. 296, fn. 5 (conc. opn. of Kline, P.J.).)
Appellant argues his facial challenge to section 190.2, subdivision (a)(21) “is concerned with a far more delimited governmental purpose than that at issue in Bostick, and with a penal consequence that necessarily warrants heightened scrutiny of legislative classifications.” The court in Rodriguez characterized Justice Kline’s comments as directed more toward equal protection than substantive due process. (Rodriguez, supra, 66 Cal.App.4th at p. 179.) After reviewing relevant state and federal authority, the Rodriguez court concluded: “The law under review in the instant case, section 190.2(a)(21), similarly targets no identifiable suspect class, nor impinges upon any identifiable fundamental right. It merely increases a penalty, just as did the law under review in [United States v.] McDougherty [(9th Cir. 1990) 920 F.2d 569] and [United States v.] Thornton [(9th Cir. 1990) 901 F.2d 738]. Hence strict scrutiny would not apply, and the law is rational both for the reasons discussed above and for reasons cited in Bostick. As the majority stated in Bostick, ‘firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension, as illustrated by the facts here. The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator.’ (People v. Bostick, supra, 46 Cal.App.4th at p. 292.)” (Id. at p. 180.) The Court of Appeal in Rodriguez concluded that Bostick “supports the proposition that section 190.2(a)(21) is rational and hence constitutional as applied in this case.” (Ibid.)
In summary, the court in Rodriguez held: “[T]he statute under review here is supported by the proper legislative purpose of reducing firearm carnage, particularly on the streets, and the increased punishment imposed for such conduct is rationally related to that broad purpose. No violation of substantive due process has been demonstrated.” (Rodriguez, supra, 66 Cal.App.4th at p. 181.)
We agree with the analysis in Rodriguez, supra, 66 Cal.App.4th 157. The special circumstance is not unconstitutional on its face or as applied to appellant. It rationally and reasonably addresses a threat recognized by the Legislature and the voters.
V
Appellant, who was 16 years old at the time of the offense, argues that his sentence to a term of life imprisonment without the possibility of parole, plus 25 years to life for the gun enhancement, is cruel and/or unusual under the Eighth Amendment of the United States Constitution and article 1, section 17 of the California Constitution. He contends the punishment is disproportionate to the offense for which it is imposed and so excessive that it is contrary to the evolving standards of decency that mark the progress of a maturing society. He cites Furman v. Georgia (1972) 408 U.S. 238, 239, (conc. opn. of Brennan, J.), Trop v. Dulles (1958) 356 U.S. 86 (plur. opn.), People v. Dillon (1983) 34 Cal.3d 441, and In re Lynch (1972) 8 Cal.3d 410 (Lynch).
In support of his argument, appellant compares his case to People v. Dillon, supra, 34 Cal.3d 441, in which the Supreme Court reduced a life sentence for first degree murder to manslaughter where the 17-year-old defendant with no criminal record shot a man he thought was about to shoot him. The jury had expressed reluctance to convict Lynch of first degree murder. Appellant urges that under the standard established in Lynch, supra, 8 Cal.3d 410, his sentence of life imprisonment without possibility of parole “‘shocks the conscience and offends fundamental notions of human dignity.’”
A. Legal Principles
1. Federal Constitution
Under the narrow proportionality principle recognized by the plurality in Ewing v. California (2003) 538 U.S. 11, “the Eighth Amendment does not require strict proportionality between the offense and the resulting sentence and does not mandate comparative analysis within or between jurisdictions. [Citation.] Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. [Citation.] In weighing the gravity of the defendant’s offenses, a court must consider both his criminal history and his current felony. [Citation.] The Ewing plurality noted that, outside the capital context, successful challenges to the proportionality of a particular sentence are exceedingly rare. [Citation.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 844.)
In People v. Szadziewicz, supra, 161 Cal.App.4th 823, the Court of Appeal concluded that the defendant’s claim that he acted out of concern for his daughter did not detract from the gravity of the crimes or make his sentence grossly disproportionate. (Id. at p. 845.) It held that the seriousness of the crimes of attempted murder, aggravated mayhem and first degree burglary and the circumstances surrounding their commission substantially outweighed his prior clean criminal record and age (51 at the time). (Ibid.) The defendant’s sentence was not found to be the “rare, extreme sentence that is grossly disproportionate to the crimes. It does not violate the Eighth Amendment.” (Ibid.)
2. California Constitution
“The basic test of a cruel or unusual punishment under the California Constitution is whether it is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity. (People v. Dillon[, supra,] 34 Cal.3d 441, 478; In re Lynch[, supra,] 8 Cal.3d 410, 424.) The main technique of analysis is to examine the nature of the offense and of the offender. (Dillon, supra, 34 Cal.3d at p. 479.) The court must consider both the nature of the offense in the abstract, and the facts of the crime in the particular case, including factors such as motive, the way the crime was committed, the extent of the defendant’s involvement, and the consequences. (Ibid.) As to the offender’s nature, the question is whether the punishment is ‘grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.’ (Ibid.)” (People v. Szadziewicz, supra, 161 Cal.App.4th at p. 845.) The Court of Appeal in Szadziewicz concluded that for the same reasons it discussed with respect to the Eighth Amendment claim, the sentence of life imprisonment with possibility of parole did not violate the California Constitution because these extremely serious crimes warranted severe punishment. (Id. at p. 846.)
B. Application
Appellant invokes the multipart test established in Lynch, supra, 8 Cal.3d 410 in arguing his punishment is excessive. “Factors relevant to the assessment of such a claim include (1) the nature of the offense and the offender, (2) whether more serious crimes are punished in this state less severely than the offense in question, and (3) whether the same offense is punished more severely in this state than in other jurisdictions. (Id. at pp. 425-427.)” (People v. Valdez (2005) 126 Cal.App.4th 575, 581.)
Appellant focuses on the first element of that analysis. He argues we must consider the totality of the circumstances surrounding the commission of the offense. (People v. Dillon, supra, 34 Cal.3d at p. 479.) He acknowledges “that firing a gun from a car towards a group of people on a sidewalk presents the highest level of danger.” He also recognizes that, in the abstract, as a murder motivated by gang animus, the offense is deserving of harsh punishment. But he contends: “Nevertheless, the abstract assessment of appellant’s conduct must be measured against and tempered by consideration of the other Dillon factors, including the fact that appellant was only 16 years old at the time of the offense and not a hardened criminal.” Appellant also cites evidence that appellant was constantly exposed to his brother’s suffering for the year prior to the murder which he believed was caused by a member of S4MK. While a vengeful killing is reprehensible, appellant urges “this Court cannot ignore the fact that a 16-year-old lacks the life experience which imbues an older person with greater conscience, judgment, and, hopefully, emotional maturity necessary to deal with the pain and anguish appellant was suffering.” He argues that punishing him as an adult by taking away the remainder of his life is cruel and unusual.
Section 190.5, subdivision (a) prohibits the imposition of the death penalty on any person who was under the age of 18 at the time of the commission of the murder. Instead, the penalty for a defendant under that age, who is found guilty of first degree murder with a true special circumstance finding, is life in prison without the possibility of parole, or at the court’s discretion, 25 five years to life.
In People v. Guinn (1994) 28 Cal.App.4th 1130, a defendant who was 17 at the time he committed murder claimed that his sentence of life imprisonment without the possibility of parole was disproportionate. The Court of Appeal disagreed. It concluded “[t]he circumstances of the crime and of defendant Guinn himself fully justify imposition of the LWOP sentence.” (Id. at p. 1146.) It cited evidence that the defendant consciously intended to rob the victim, challenged, chased and attacked the victim, disposed of the weapon afterward and attempted to dispose of other evidence. He lied to police about his involvement. The defendant had one similar offense in the recent past and was on probation at the time.
The Guinn court distinguished People v. Dillon, supra, 34 Cal.3d 441, relied upon by the defendant in that case and by appellant in this appeal. In contrast to the facts in Dillon, in Guinn the court noted that the defendant was not panicked or threatened, was in complete control of the situation and his own actions, was unprovoked, and instigated the crimes. It rejected the challenge to the sentence, reasoning: “Defendant Guinn argues that imposition of a sentence of LWOP on a 17-year-old is extreme. While we agree that the punishment is very severe, the people of the State of California in enacting the provision have made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment.” (People v. Guinn, supra, 28 Cal.App.4th at p. 1147.)
We cited People v. Guinn, supra, 28 Cal.App.4th 1130, in our opinion in People v. Demirdjian (2006) 144 Cal.App.4th 10, a case arising from particularly heinous murders of two young teenagers. The defendant was 15 years old when he committed the murders. He challenged imposition of two consecutive 25-year-to-life sentences on the ground the sentence violated the cruel and unusual punishment clause of the Eighth Amendment and the cruel or unusual punishment provision of the California Constitution (art I, § 17). Following the reasoning of the Guinn court, we found no violation of the state or federal constitutional prohibitions against excessive punishment. We distinguished Roper v. Simmons (2005) 543 U.S. 551, 569, which held that the death penalty is excessive punishment when imposed on a person who was under 18 years old when he or she committed the offense. We concluded: “[W]e are not persuaded that the decision of the United States Supreme Court holding that execution of a person who was under 18 at the time his or her crime was committed is cruel and unusual punishment bars a term of life imprisonment. We find no categorical prohibition against imposition of a life term on juveniles who commit special circumstance murder.” (People v. Demirdjian, supra, 144 Cal.App.4th at p. 16.)
As in Guinn, supra, 28 Cal.App.4th 1130 and Demirdjian, supra, 144 Cal.App.4th 10, we find no violation of the state or federal constitutional prohibitions against excessive punishment in this case. Like the defendant in Guinn, appellant was not panicked or threatened, was in complete control of the situation and his own actions, was unprovoked, and instigated the shooting. He had a juvenile history of battery. While he was young when he committed the murder, his sentence is not grossly disproportionate.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.