Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF129770, Patrick F. Magers, Judge.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
In this appeal, Cesar Noel Hernandez argues (1) there is insufficient evidence to support his conviction for first degree murder and (2) that his indeterminate life sentence violates state and federal constitutional prohibitions against cruel and unusual punishment. We disagree with both of defendant’s arguments and will affirm.
FACTS AND PROCEDURAL HISTORY
In an information filed August 31, 2006, the District Attorney of Riverside County charged defendant with first degree murder in violation of Penal Code section 187, subdivision (a). The information further alleged that defendant personally and intentionally discharged a firearm in the commission of the crime within the meaning of sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8). Over the course of a seven-day jury trial held between February 14 and 23, 2007, witnesses testified to the following facts:
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant, his brother Antonio Hernandez (Antonio), and defendant’s longtime friend Dante Cunanan (Cunanan), were all involved in the illegal business of cockfighting, as were Melchor Ilagan (Ilagan or the victim) and his friend Oliver Lopez (Lopez). Defendant was known as a “hotheaded” person who liked to win and someone who was willing to fight “all the time,” especially if a mistake was made in cockfighting. Defendant intimidated a lot of people and would sometimes “just punch” another person if he felt he was in the right. Antonio, by contrast, was generally mild-mannered, kind, and polite. Ilagan was also mild-mannered and did not intimidate people. However, Ilagan was a newcomer to the game of cockfighting, a “rookie” who tended to lose money.
Cunanan was experienced and respected in cockfighting circles and often acted as a referee for the fights. According to Cunanan, at the beginning of a cockfight the referee draws two lines inside the pit about two yards apart. As the fight commences, opponents place their roosters behind the two lines. Placing one’s rooster in front of one’s line is considered unsportsmanlike conduct and is also dangerous because an especially mean rooster will sometimes attack the opposing handler.
On March 12, 2006, Lopez hosted a cockfight at his home. About 60 people attended, including Cunanan, the Hernandez brothers, and Ilagan. As the fight began, defendant placed his rooster down near Ilagan’s line rather than behind his own. Cunanan, who was refereeing, told the two to begin over and admonished defendant to put his rooster in the proper place behind his own line. But defendant again placed his rooster in front of his line and close to Ilagan’s.
Ilagan responded by throwing his own rooster at defendant. The thrown rooster inflicted a cut on defendant’s leg, whereupon defendant called for his brother Antonio and the two began chasing Ilagan. At some point, Ilagan fell to the ground and the Hernandez brothers tried to hit him while he was down. Ilagan got up and ran away but returned about a minute later wielding a “butterfly knife” and trying to climb the fence around the pit where the brothers were still located. Meanwhile, defendant and Antonio armed themselves, respectively, with a shovel and a pitchfork. Cunanan and others separated the three would-be combatants, disarmed the brothers, and prevented the fight. At defendant’s request, Lopez returned his $1,500 entry fee. After he got his money back, defendant used a heavy rock to break all the windows of Ilagan’s van.
In Cunanan’s opinion, defendant was in the wrong at the March 12 cockfight in that he intentionally broke the rules by placing his rooster down in the wrong place. Cunanan believed that defendant, a veteran in the sport, did this to take advantage of Ilagan’s “rookie” status.
After March 12, Cunanan spoke to defendant about the incident several times. Defendant was very angry about the cut on his leg, but Cunanan urged him to calm down and control himself. Cunanan reminded defendant that he had a wife and family and should not always be looking for a fight; he would get nothing, Cunanan told him, out of being hotheaded or aggressive. To Cunanan, defendant seemed angry but not afraid. Another friend, Jorge Torres, also advised defendant to consider his wife and family and forget about the incident. A third friend, Laureto “Lito” Bandolin told defendant to “just ignore everything and just forget everything. It’s not even a big deal.”
Another cockfight was scheduled for April 15, 2006. The night before the event, Lito telephoned Lopez. Lito assured Lopez that he had talked to defendant, that “nothing would happen,” and that the dispute between defendant and Ilagan could be settled through a “peace talk” the next day. Because of Lito’s guarantee that nothing would happen, Ilagan and Lopez decided to attend the cockfight.
Cunanan, the Hernandez brothers, Ilagan, and Lopez all attended the April 15 cockfight, which was held in a remote area of Perris. Before the event began Cunanan spoke to defendant, who did not look happy. Cunanan told defendant that Ilagan was coming, and urged him to control himself because the fight was a very big one and they were bound to make money on it. Defendant told Cunanan not to worry about it. Cunanan saw a Mexican companion with defendant at the April 15 fight; this person was usually with defendant at cockfights and was someone who would always “back him up.”
Lopez arrived at the fight location before Ilagan. Seeing defendant there, Lopez touched him on the back, and said, in Tagalog, “[J]ust make peace with [Ilagan]. . . . [D]on’t make any trouble anymore.” Defendant looked down and did not answer Lopez. Lopez had taken Ilagan’s birds to the fight for him and was weighing one of them when he saw Ilagan drive up in his red Toyota Celica. As Ilagan arrived, he and Lopez waved to each other. Lopez did not see Ilagan make any other gestures with his hands.
As soon as Ilagan got out of his car, Lopez saw defendant and his companion walk out of the door of a trailer and begin “rushing” toward him. Defendant looked very angry. The companion had a .38 revolver in his waistband. Lopez got between defendant and Ilagan and told him, in Tagalog, to “just talk, just talk.” However, when defendant pulled the gun from the waistband of his companion and said, “Oliver, stay away from this, or else I’ll shoot you,” Lopez became afraid and stepped aside.
Defendant pointed the gun at Ilagan and yelled, “Don’t talk to me like that on the phone.” Ilagan stepped back and put both his hands up in the air. Ilagan appeared to be unarmed and looked afraid. Lopez thought he saw Ilagan’s lips moving saying, “Go ahead, shoot me,” but he did not hear Ilagan say anything. Defendant began to shoot Ilagan. Immediately after the first shot, the victim grabbed his chest and fell to the ground. About three seconds later, defendant fired again. Eight or nine seconds after the second shot, while the victim was on the ground, defendant stood over him and shot him two more times. Defendant and his companion then ran away.
After the shooting, Cunanan approached the victim and felt his neck for a pulse, but could not find one. Cunanan told Lopez, “Your friend’s dead,” and told him to call the police. However, Lopez was afraid and did not want to get involved so he got in his truck and went home. From home, Lopez telephoned another friend who persuaded him to call the police. Lopez then went back to an area near the site of the cockfight and called police.
Sheriff’s deputies and investigators responded to the scene. They found Ilagan, dead, lying face down in the dirt beside his car. There was a cell phone on top of a closed and locked butterfly knife in one of his pants pockets and about $4,306 in cash in another pocket, but no other weapons were found near the victim’s body or in his car. Inside the victim’s car, investigators found a napkin on which a map with directions to the cockfight location had been drawn; in the trunk they found a leather case containing a set of cockfighting blades.
After investigators obtained defendant’s cell phone number from Lopez, they traced defendant’s residence address to San Diego and secured a warrant for his arrest. On April 17, defendant surrendered at the sheriff’s station in Temecula. Cockfighting materials and supplies, but no gun, were found at defendant’s house. The gun used to kill the victim was never found.
Pathologist Dr. Marc McCormick performed an autopsy on the victim’s body. The doctor identified four gunshot wounds. The first bullet, which he believed was most likely the fatal shot, entered the front of the victim’s chest, traveled through his heart, aorta, and lungs and exited through his spine. The second bullet entered the left side of the chest and traveled at an angle to exit in the middle of the victim’s back. Two more bullets entered and exited the victim’s right hand: one through his wrist and one through his fingers.
Defendant testified at length on the sixth day of his trial, giving his version of the events of March 12 and April 15, 2006. Defendant said that the bird he was handling at the March 12 fight was “very mean” and had struggled out of his hand to fall in front of his line. He was angry about being cut by Ilagan’s bird but had only smashed the windows in the victim’s van so he wouldn’t be able to see to drive it and possibly follow defendant and his brother. Between the March 12 and April 15 fights, defendant said, the victim called him several times and threatened to kill him, his wife, his brother, and his new baby. He said he was very afraid of the victim. Defendant admitted that a number of his friends had advised him to calm down and forget about the March 12 incident.
Defendant said he went to the April 15 cockfight only because he believed the victim was not going to be there. He and his friend “Ed” from Rosarito, Mexico, drove to the site together in defendant’s car. They arrived about 8:00 a.m. and went into one of the trailers to weigh their birds. Defendant had never known Ed to carry weapons and did not know he was carrying a gun that day. Around 9:30 a.m., defendant saw Lopez make a call on his cell phone, pointing in defendant’s direction as he talked. About 45 minutes later, defendant saw Ilagan arrive.
Defendant testified that as Ilagan exited his car, he gestured at defendant by drawing his hand across his throat and mouthing the words, “You’re fucking dead.” Defendant said Ilagan also yelled at him, “I’m going to fuck you up.” Defendant was very scared and thought the victim was going to kill him with his butterfly knife. Ed told defendant not to worry and raised his shirt to reveal a revolver tucked into his waistband.
Defendant and Ed left the trailer as soon as they saw Ilagan arrive and walked toward him; according to defendant, Ilagan was also walking toward them and had his hands in his pockets. Defendant estimated that the victim walked about 25 feet in his direction. Defendant thought Ilagan was pulling out his knife and yelled, “Shoot him, Ed. Shoot him, Ed.” Ed did not shoot Ilagan; instead, he handed his gun to defendant. Because he was afraid that Ilagan was about to attack him with his knife, defendant pointed the gun at Ilagan and began pulling the trigger. Defendant could not remember how many times he shot the victim, but denied that he shot him after he was lying on the ground. Defendant saw Ilagan fall but ran away because, he said, he was afraid the victim might get up and chase him. After the shooting, Ed grabbed the gun from defendant. Defendant ran to his car and drove away; Ed did not come with him. He did not attempt to call the police from the location of the killing, he said, because there was no phone signal there. Defendant drove straight to a San Diego police station to surrender himself, but was unable to do so because the station was closed. Defendant did not again try to contact police; after consulting with his family, he hired an attorney and turned himself in two days after the shooting.
On March 1, 2007, a jury convicted defendant of first degree murder (§ 187) and found true the allegation that he personally used a firearm in the commission of the crime (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)). On April 12, the court sentenced defendant to 50 years to life in state prison: 25 years to life for the murder and 25 years to life for the firearm enhancement.
DISCUSSION
Defendant’s first argument is that there was insufficient evidence to support a finding of premeditation. His second is that his sentence amounts to cruel and unusual punishment. We are persuaded by neither.
Sufficiency of the Evidence
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Steele (2002) 27 Cal.4th 1230, 1249, quoting People v. Bolin (1998) 18 Cal.4th 297, 331.) The trier of fact weighs the evidence and determines the credibility of witnesses. To set aside a judgment of conviction, it must be “‘clearly shown there is no basis on which the evidence can support the conclusion of the jury.”’ (People v. Cardenas (1994) 21 Cal.App.4th 927, 938.)
Under the three-part test of People v. Anderson (1968) 70 Cal.2d 15, 26-27, three categories of evidence are relevant to the issue of premeditation and deliberation: motive, planning activity, and manner of killing. (People v. Bolin, supra, 18 Cal.4th at p. 331.) However, “‘Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive.’” (Bolin, supra, at p. 331.) In this case, there was abundant evidence of defendant’s motive, his planning activity, and the manner in which he killed the victim to support the jury’s finding that he had demonstrated the premeditation required for a conviction of first degree murder.
Defendant’s motive was not in question and not seriously disputed by any witness at trial other than himself and his wife. According to a number of witnesses, defendant was angry, but not afraid, over the events that had occurred at the March 12 cockfight. He was angry that Ilagan had responded to his placing his rooster in front of his designated line by throwing his own rooster at defendant and that the rooster had caused him to suffer a cut on his leg. Despite having “only one leg left” after his injury, however, defendant was able both to chase the victim and to smash the windows in his van. He was apparently also able to plan for the protection of his own financial interests. First, defendant demanded and received his $1,500 entry fee back from Lopez, the host of the fight and the victim’s good friend. Then, defendant smashed all the windows in the van.
There was also evidence at trial that defendant continued to nurse his anger over the following month. Several friends had to advise him to calm down and think of his family. The very night before the April 15 cockfight, defendant’s friend Lito talked to him about making peace with the victim. Lito called Lopez to assure him that defendant had said nothing would happen and that the dispute would be settled by a “peace talk.” Defendant testified that his motive for the shooting was fear, not anger; the victim, he said, had phoned him several times and made threats to kill him and his family. But no one other than defendant’s wife confirmed his story. Defendant’s brother Antonio only heard the victim call defendant a “[s]on of a bitch” and ask why defendant had broken the windows on his van. And the two recorded phone calls from the victim did not contain threats to kill anyone. The jury was entitled to weigh the testimony of defendant, his wife, and the other witnesses and determine who was most credible. (People v. Cardenas, supra,21 Cal.App.4th at p. 938.)
In addition, there was evidence that defendant was planning to shoot Ilagan. As we have discussed, he had been thinking about the March 12 incident for several weeks, hence the repeated admonitions of friends to calm down. And despite his claim that he attended the April 15 event only because he thought Ilagan would not be going, it is clear that defendant knew from his discussion with Lito the night of April 14 that the victim was likely to be at the cockfight the following day. On the morning of April 15, defendant “armed” himself by taking his backup man, Ed, with him in defendant’s own car to the site. Before the victim arrived, Cunanan told him Ilagan was coming and urged defendant to control himself; but defendant deflected his friend’s admonitions by telling Cunanan not to worry. Defendant admitted that as he approached Ilagan with an armed companion, he knew that the situation was dangerous and might result in a serious injury or death to someone. Nonetheless, he kept walking toward the victim. When Lopez placed himself between defendant and Ilagan, imploring defendant to “just talk, just talk,” the gun was still in Ed’s waistband. Defendant responded to Lopez’s plea by taking the gun from Ed and saying, “Oliver, stay away from this, or else I’ll shoot you.” Defendant clearly intended to shoot Ilagan and he was not going to brook any interference. This despite the fact that defendant never saw the victim wield any weapons of any kind. Finally, just before he shot Ilagan, defendant said, “Don’t talk to me like that on the phone” and told the victim to stay away from him and his family. Defendant was responding not to a threat of immediate harm, but to phone calls that had occurred days earlier and he was executing a plan that he had been thinking about for some time.
The manner in which the murder was carried out also supported the jury’s conclusion that the killing was premeditated. Defendant testified that he shot the victim in self-defense and because he was “very scared,” but his actions belied this claim. As soon as he saw Ilagan arrive, defendant left the trailer with a companion whose revolver he had just seen, and walked openly, directly, toward a person he claimed he was afraid was going to kill him. Defendant’s version of the story was that Ilagan made threatening gestures toward him and yelled, “I’m going to fuck you up,” but no one else saw these gestures or heard the victim say anything. Defendant insisted that Ilagan was walking toward him too and had advanced about 25 feet, but the victim’s body was found right next to his car, not 25 feet away from it. On the stand, defendant admitted that he intended to “get [the victim] shot” and that he had “pointed the gun at [the victim’s] chest” knowing there was a substantial likelihood that he would die from the shot. And after shooting him once in the chest, defendant fired at least two and possibly three more shots into the victim as he lay on the ground. Again, the jury was entitled to weigh the testimonial evidence and determine whether it found most credible defendant’s tale of the victim’s words and gestures or other witnesses’ testimony that the victim made no threatening gestures and said nothing. (People v. Cardenas, supra,21 Cal.App.4th at p. 938.)
In sum, there was substantial evidence from which the trier of fact could have reasonably determined that defendant’s killing of Ilagan on April 15, 2006, was premeditated and therefore a first degree murder.
Cruel and Unusual Punishment
Within the confines of constitutional prohibitions against cruel and unusual punishment, defining crimes and prescribing penalties are legislative functions. (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) However, the determination of whether a penalty exceeds constitutional limits is a judicial function. (People v. Anderson (1972) 6 Cal.3d 628, 640.) A punishment may violate state and federal constitutional prohibitions against cruel and unusual punishment if it is “grossly disproportionate to the offense for which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478; see also Id. at pp. 477-478 & fn. 25.) A disproportionate punishment is one that “‘shocks the conscience and offends fundamental notions of human dignity.’” (Ibid., citing Lynch, supra, at p. 424.)
Three factors properly used in determining disproportionality are the nature of the offense or the offender and the degree of danger each presents to society, the severity of the punishment for the instant offense compared to that prescribed for other more serious offenses committed in the same jurisdiction, and the severity of the punishment imposed in this jurisdiction compared to that imposed in other jurisdictions for the same offense. (Lynch, supra, at pp. 425-427.)
In support of his argument that his punishment was disproportional to his crime and therefore unconstitutional, defendant argues that his crime was unplanned and motivated by his fear of the victim. In essence, defendant’s argument that his punishment is disproportionate relies on exactly the same assertions used to support his claim that there was insufficient evidence to support a finding of premeditation. As we have explained at some length, we find that argument unpersuasive. Accordingly, we reject this one too.
With regard to the first Lynch factor, defendant points out that he was only in his 30’s and had “little or no” criminal record, while the People reply that for some years, defendant had been involved in a cruel and dangerous illegal enterprise involving the abuse and torture of animals for financial gain and entertainment. Since defendant was still involved in cockfighting, he had obviously not reformed and was thus not a naïve, young offender. Most importantly, the current offense was premeditated murder and the offender was a person who armed himself with a gun and then shot and killed an unarmed victim. It is hard to imagine a more prototypically violent offense or offender or one who poses a greater danger to society.
With regard to the second Lynch factor, there is no offense “more serious” than first degree premeditated murder that is punished less severely in California. More serious forms of premeditated murder are punished at least as severely as defendant was punished here, and may even result in a death penalty. (§§ 190, 190.2.)
Finally, with regard to the third Lynch factor, defendant does not argue that his punishment for premeditated first degree murder in California is harsher than that provided for the same crime in other states. And even if it were, we would find such a fact irrelevant. There is no requirement that punishment for a given crime in this state be measured by that in another jurisdiction or that the fact that the penalty here is the most severe means it is cruel and unusual. (People v. Cooper (1996) 43 Cal.App.4th 815, 827.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.