Opinion
C098291
04-08-2024
THE PEOPLE, Plaintiff and Respondent, v. ANDERS JOHANSSON-FULILANGI, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 62-174722A)
EARL, P. J.
Defendant Anders Johansson-Fulilangi was sentenced to life without the possibility of parole after a jury found him guilty of first degree murder with a robbery special circumstance. He challenges his conviction on two grounds, arguing (1) there is no evidence he intended to rob the victim before he killed him, and (2) the trial court should have instructed the jury on the lesser included offense of theft. He also challenges his sentence, arguing it constitutes cruel and unusual punishment. We disagree with all of his arguments and thus affirm.
BACKGROUND
Defendant was charged with three counts: murder, home invasion robbery, and being a felon in possession of a firearm. It was also alleged the murder occurred during the commission or attempted commission of a robbery within the meaning of Penal Code section 190.2, subdivision (a)(17)(A). As relevant to this appeal, the evidence at trial showed the following.
A personal discharge of a firearm enhancement was also alleged as to the murder and robbery counts and found true by the jury. It was also alleged defendant had several prior serious or violent felonies, and nine aggravating factors were present. Defendant admitted the prior felonies and eight aggravating factors (the ninth was stricken). The enhancements, prior felonies, and aggravating factors are not at issue here.
Angelica Garcia worked as a prostitute for Michale Fotofili. Sometime in the early morning of September 18, 2020, the victim, J.P., arranged a "date" with Garcia at the Home2Suites hotel in Roseville. (Unless otherwise noted, all events occurred on September 18.) Fotofili had rented a room in the hotel-room 105-the day before. The victim sent Garcia $200 through an electronic payment service called CashApp at around 6:08 a.m., and Garcia sent the money to Fotofili shortly thereafter.
The victim arrived at the hotel around 6:40 a.m., and he and Garcia then drove to WinCo to buy snacks and drinks. While they were driving, the victim showed Garcia he had $3,000 or $4,000 in cash in the center console of his truck. Garcia texted Fotofili from WinCo and told him the victim had money and she wanted it. The following text exchange occurred at around 6:52 a.m.:
Security cameras captured the parties' comings and goings from the hotel (but not what went on inside the room). We have not been provided with the security footage, but it was extensively described by officers at the trial, and there is also a synopsis in the People's trial brief, which we have referred to (defendant refers to the synopsis as well). We note that police testified the time shown on the security footage is 14 minutes fast. Thus, for example, the time says 7:56 a.m. when the shooting appears on the video, but it was actually 7:42 a.m.
Fotofili: "Peti said give him 10 minutes and he'll be here."
Garcia: "Hell yeah this [n-word] got hella money in his truck. [¶] [N-word] we getting this shit idgaf [I don't give a fuck]."
Fotofili: "Yes we are I'll let you know when Peti gets here."
Garcia testified "Peti" was defendant. Garcia and the victim left Winco shortly after this text exchange.
Security footage from the hotel shows Fotofili at the west entrance a little after 7:00 a.m. About three minutes after that, a GMC Yukon later determined to be driven by defendant pulls into view, and three minutes later Fotofili and defendant can be seen heading to room 105. About 10 minutes pass before Garcia and the victim can be seen returning to the hotel and entering the room. Security footage then shows the following:
7:28 a.m.: Garcia walks out of the hotel, followed by Fotofili.
7:30 a.m.: Garcia re-enters the hotel.
7:31 a.m.: Fotofili re-enters the hotel.
7:35 a.m. to 7:39 a.m.: Fotofili walks out of and into the hotel two more times.
7:40 a.m.: Fotofili walks out of the hotel quickly.
7:41 a.m.: Garcia walks out of the hotel carrying a duffle bag, several shopping bags, and her purse.
7:42 a.m.: The following occurs in an 11 second time period (from 7:42 a.m. and 40 seconds to 7:42 a.m. and 50 seconds): dust and smoke fill the screen; casings come into view; defendant walks out of the room holding a Glock semi-automatic handgun; defendant appears to squeeze the trigger and fire the handgun in the direction of where the victim's body was found; and defendant exits the hotel and walks in the direction of his GMC Yukon.
Seven second later, at 7:42 a.m. and 57 seconds, Garcia and Fotofili drive away in a silver SUV.
Thirty seconds after that, at 7:43 a.m. and 26 seconds, the GMC Yukon drives away.
The victim died at the scene from multiple gunshot wounds. He was shot 17 times; there were 12 entry wounds on the front of his body and five entry wounds on the back of his body. Two of the wounds had markings that indicated the gun was within an inch or two of the victim's body when it was fired. The victim also had several blunt force injuries to his face and head consistent with a physical struggle or altercation.
CashApp records showed the following activity. Between 7:35 a.m. and 7:38 a.m. (i.e., while security footage showed the victim, defendant, and Garcia were in the room, and Fotofili was walking in and out of the room) four transfers totaling $34,503 were attempted from the victim's account to a user named "Tunaiku," but none of the transfers went through. The Tunaiku account belonged to someone named Justin Patterson who had a Salt Lake City address (which is where defendant also lived). At 8:28 a.m. and 8:31 a.m., about 45 minutes after the shooting, two transfers of $1,000 and $500, respectively, were attempted from the victim's account to Garcia, but those transfers did not go through. At 8:33 a.m., a $750 transfer was attempted from the victim's account to Fotofili, but this transfer did not go through. Between 8:40 a.m. and 12:02 p.m., eight transfers totaling $5,950 were successfully made from the victim's account to defendant (a ninth transfer of $500 did not go through). CashApp records also show that, at 8:55 a.m., defendant transferred $1,000 from his account to Tunaiku.
Records show defendant also transferred $1,000 to "Money Mike" at 8:47 a.m., $1,000 to Fotofili at 8:49 a.m., and $2,000 to "G'd Up" at 8:51 a.m.
At around 4:58 p.m., defendant sent Fotofili a text saying, "please I'm stuck here with nothing. [¶] Send me tola [money]." Fotofili responded at 7:03 p.m., "I got you cuz . . . but aye, can you download Zelle cuz I don't want them to be able to track you through the cash app transactions." Fotofili sent another text to defendant (the time is not clear) that said, "My bad toko [family] but we just got here to the bay and finally got into a room so ima send you the rest of what I got what you sent me cuz I haven't even got a chance to load my card." Fotofili then sent another text (again the time is not clear) that said, "Aye I just tried to send you that and it declined it." Police subsequently searched Fotofili's phone and found evidence he sent defendant $145 via CashApp at 7:51 p.m., and also tried to send $500 and $1,000 but the last two payments did not go through.
Police apprehended Garcia and Fotofili in South San Francisco at around 8:40 p.m. that night. They had over $2,000 in cash on them, and Garcia acknowledged this was what was left of the money they took from the victim's truck.
Garcia was interviewed by police, and a recording of the interview was played for the jury (police also testified about the interview at trial). She told police that when she and the victim were driving to Winco, "I seen the guy had a lot of cash in his . . . truck" and he was "flashin' the money at me," but "he's tryin' to low ball me at the same time, you know, yeah. So I was like, you know what, you get this money." She texted Fotofili from Winco and "told him . . . that the guy had money and that I wanted to get the money." She said the plan was "to just scare him, you know, just - just - just - just scare him, get the money, that's it." When she and the victim got back to the hotel room, she "didn't know [defendant] . . . was there" and she "thought it was gonna be [Fotofili]." At some point, however, defendant came out of the bathroom with "big gun," and she thought, "oh shit." She said defendant pointed the gun at the victim, punched him, and knocked him out. She then went to the victim's truck and took the money, which was close to $3,000. She returned to the room and the victim and defendant "were arguing about the cash app and getting a PIN number." Garcia then "grabbed her stuff and left." She told police she and Fotofili did not know defendant had killed the victim, and she did not know why he did so because "we already had the money." She also told police she and Fotofili did not give defendant any of the money they took from the victim's truck, they did not see him again after they left the hotel, and defendant "got the CashApp."
Defendant initially fled to Reno after the killing. At around 11:00 p.m. that night, however, police spotted him in Sacramento, but he managed to evade them. At around 4:00 p.m. on September 19 (i.e., the next day), his vehicle was located in Reno, and, following a short chase, he was apprehended. A Glock 19 nine-millimeter handgun and two magazines were found in the vehicle. One of the magazines had a capacity of 17 rounds.
Following his arrest, defendant was interviewed by police, and although he did not testify at trial, a recording of the interview was played for the jury. In the interview, he initially denied knowledge of or involvement in the killing, but when shown surveillance video from the hotel, he said, "I'm gonna get life for this right?" and admitted he shot the victim. He told police he was just at the hotel "to watch" and act "like an enforcer." He said Fotofili had called him earlier that night and asked him "to be there to make sure this motherfucker pays." He and Fotofili waited in the hotel room for Garcia and the victim to return, and when Fotofili got a call or text saying they were on their way, they hid in the bathroom and were "quiet." The victim was supposed to have sex with Garcia, pay her $400, and then leave. Defendant is "pretty sure" the victim and Garcia had sex because he "could hear" them while he was in the bathroom. According to defendant, there was a disagreement about money, and the victim was "trying not to pay. And then so that's when we hop out" of the bathroom. Defendant told the victim, "come on, man. You're supposed to just pay." The victim said he only had $40, and defendant said, "No, I know you got more than that." Defendant told Garcia to go to the victim's car and "find this money," and Garcia left the room and then came back and said, "I got it all." Defendant said there was "a lot of money in that car," and "[w]hen they came back . . . they showed me the money." After they got the money, Garcia and Fotofili left.
According to defendant, the victim then "starts going, shit, like that's my money" and "he hits me on the side of the head" and "we're struggling" and "fucking wrestling." The victim started "running out the door," and "I'm like, what the fuck? You mean you can't leave? You fucking owe us. . . . You owe us money dog." "[H]e's not paying, he's fucking fighting . . . he punches me in th[e] fucking face. And so I just let loose" and "shot him." "I don't know why, but I kept . . . shooting it." When asked how many times he thought he shot the victim, defendant replied, "I shot him until the fucking gun was empty dog." Police asked defendant, "How much of a cut were you gonna get into the money?" and he responded, "I wasn't getting a cut man." He also told police his car was running while he was waiting in the hotel room. When asked why, he replied, "Just to make sure, like, you know what I mean? If I, if that didn't ever come down to that situation, that I could just leave. Get out."
Garcia testified at trial but refused to answer most questions, and the court repeatedly found her in contempt. The testimony she did give was generally consistent with what she told police. She testified defendant was not part of the plan to take the victim's money, and her understanding was that he was at the hotel to be security.
The jury found defendant guilty of first degree murder, robbery, and being a felon in possession of a firearm. It also found true the allegation that the murder occurred during the commission or attempted commission of a robbery and the allegation that defendant discharged a firearm causing great bodily injury or death. Defendant was sentenced to life without the possibility of parole (LWOP) for murder, plus a consecutive term of 25 years to life for the discharge of a firearm enhancement. The LWOP sentence is the only portion of his sentence that he challenges on appeal.
Fotofili was charged with robbery, pimping, and pandering, these charges were resolved by plea, and he was sentenced to 20 years; Garcia was charged with robbery, she pled no contest, and she was sentenced to six years.
He was also sentenced to the upper term of six years on count two (robbery), doubled to 12 years because of the strike, plus 25 years to life for the discharge of a firearm enhancement, with the sentence stayed pursuant to Penal Code section 654; and the upper term of three years on count five (felon in possession), doubled to six years because of the strike, to run consecutively. As noted, he does not challenge this portion of his sentence.
DISCUSSION
We note at the outset there is no real dispute that defendant is guilty of murder. He admitted to police that he shot the victim and "kept shooting" "until the fucking gun was empty." Instead, the dispute is over whether defendant should have been convicted of first degree murder or second degree murder. There is also no real dispute that defendant ended up with almost $6,000 of the victim's money. The dispute is over whether he obtained the money by force or fear before he killed the victim (which would be robbery), or whether he obtained that money without the use of force or fear after he killed the victim (which could be theft). With this in mind, we turn to defendant's arguments.
I
The Evidence Supports Defendant's First Degree Murder and Robbery Convictions
The jury found defendant guilty of first degree murder and of robbery. As to the murder count, the prosecutor's primary theory was that Garcia, Fotofili, and defendant conspired to rob the victim, and that defendant killed the victim during the commission of that robbery, which would make the killing first degree rather than second degree murder. Defendant acknowledges the evidence shows Garcia and Fotofili planned to rob the victim, but he argues there is no evidence that he knew about or was part of the plan or that he intended to rob the victim before or at the time he killed him, and that he is thus guilty only of second degree murder and theft. We disagree.
That was not the prosecutor's only theory, and the jury was also instructed on first degree murder with malice aforethought. The jury found defendant guilty of first degree murder but did not specify on what theory. Because we find ample support for the prosecutor's primary theory, we need not discuss his secondary theory.
A. Standard of review
A defendant challenging the sufficiency of the evidence to sustain a conviction "bears an enormous burden." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) "Our review of any claim of insufficiency of the evidence is limited.' "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" '" (Id. at p. 329.) "If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. [Citations.] A reviewing court is precluded from making its own subjective determination of guilt. [Citation.] It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. [Citations.] The standard of review applies even 'when the conviction rests primarily on circumstantial evidence.'" (Id. at p. 330.)
B. Relevant law
Penal Code section 189 provides a murder committed during the perpetration of or attempt to perpetrate a robbery is first degree murder. As defendant accurately notes, in order to support a conviction for first degree murder, "the evidence must establish that the defendant harbored the felonious intent [here, to rob] either prior to or during the commission of the acts which resulted in the victim's death; evidence which establishes that the defendant formed the intent only after engaging in the fatal acts cannot support a verdict of first degree murder based on section 189." (People v. Anderson (1968) 70 Cal.2d 15, 34, italics added; see also People v. Morris (1988) 46 Cal.3d 1, 23, fn. 9 ["An intent to rob will not support a conviction of felony murder if it arose after the infliction of the fatal wound"], overruled on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; People v. Reynolds (1986) 186 Cal.App.3d 988, 998 ["a murder which precedes the formation of the intent to rob . . . is not within the perpetration of robbery"].)
Moreover, "A killing committed during a conspiracy to commit robbery does not come within the terms of section 189 unless that killing was committed 'in the perpetration or attempt to perpetrate . . . robbery. . . .' (Pen. Code, § 189.) If a killing is so committed, even accidentally, all coconspirators are guilty of first degree murder. [Citation.] But death must result from an act committed in furtherance of the robbery or the escape from such robbery." (People v. Schader (1965) 62 Cal.2d 716, 731, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.)
C. Analysis
The evidence is more than sufficient to support a finding defendant intended to rob the victim before he shot and killed him, and that he killed the victim in the perpetration or attempt to perpetrate a robbery or the escape from such robbery.
As recounted above, Garcia told police defendant came out of the bathroom with a big gun, pointed it at the victim, and punched him. She then went to the victim's truck and took the cash, and when she got back to the room, the victim was on the ground and he and defendant "were arguing about the cash app and getting a PIN number." She got her stuff and left. By comparing the security footage with Garcia's account of events, she would have seen defendant and the victim arguing about the CashApp and the PIN during the time CashApp records show four attempted transfers from the victim's account to Tunaiku. CashApp records also show that beginning shortly after the victim was killed, $5,950 was transferred from the victim's account to defendant, and defendant subsequently transferred $1,000 to Tunaiku. The most reasonable inference from this evidence is that it was defendant who obtained the victim's PIN, that he tried unsuccessfully to transfer money out of the victim's account and to Tunaiku before he shot the victim, and that about an hour after he shot the victim, he began successfully transferring money to himself and sent some of that money to Tunaiku. This evidence is more than sufficient to support a finding that the victim was killed in the perpetration or attempt to perpetrate a robbery of money in the victim's CashApp account, and that defendant was an active participant in and beneficiary of this robbery.
Defendant notes that robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear" (Pen. Code, § 211), and he argues there is no evidence he used force or fear to obtain the victim's PIN to transfer money using CashApp. Not so. As even defendant admits, "Had there been evidence before [the victim's] death that [defendant] took possession of his phone or gained access to the Cash App, an intent to rob would have been a reasonable inference." There is such evidence. Garcia told police defendant pointed "a big gun" at the victim and knocked him out, and a few minutes later she saw defendant and the victim arguing about getting the victim's CashApp PIN. Defendant contends arguing about obtaining the victim's PIN "is not the use of force or fear." We strongly disagree, particularly where, as here, defendant was holding a gun at the time of the argument. Arguing with the victim about obtaining his PIN while holding a gun is more than sufficient to support an inference the PIN was obtained by force or fear. Indeed, it is unclear what alternative inference defendant believes the evidence reasonably suggests.
Defendant also argues the evidence "suggests" it was actually Garcia and Fotofili who took the victim's phone (and thus had access to the victim's CashApp account), because at 8:28 a.m. and 8:31 a.m. someone tried to transfer money from the victim's account to Garcia's account, and at 8:33 a.m. someone tried to transfer money from the victim's account to Fotofili's account. Defendant ignores the fact that those transfers were unsuccessful, that he was the only one who ended up with money from the victim's account, and that Garcia told police defendant "got the CashApp." Moreover, and regardless of who was attempting to make or making the transfers or who took the victim's phone, the evidence amply supports the jury's finding that defendant was an active participant in the robbery because he was the one who obtained the victim's PIN by force or fear and ended up with the victim's funds.
With respect to the cash taken from the victim's truck, defendant argues there is no evidence to support the prosecution's theory that he conspired with Garcia and Fotofili to rob the victim of this cash. Although we need not discuss this theory because, as we have just explained, the evidence is sufficient to show defendant was an active participant in the robbery of the funds from the victim's CashApp account, we easily conclude the evidence also supports this prosecution theory and will briefly address it.
According to defendant, phone records show Fotofili called him around 6:28 a.m., and he contends this is when Fotofili asked him to act as security. He notes this was about 30 minutes before Garcia texted Fotofili and they agreed to rob the victim of his cash. As defendant puts it, "Clearly, [defendant] had not been summoned by Mr. Fotofili [at 6:28 a.m.] to commit a robbery that had not been planned at this point." True, but defendant ignores the fact that Fotofili immediately responded to Garcia's text as follows: "Yes we are I'll let you know when Peti [defendant] gets here." (Italics added.) The italicized portion of Fotofili's response supports an inference he was going to let defendant in on the plan. But there is more.
Defendant focuses exclusively on the 6:28 a.m. phone call from Fotofili, but he ignores the fact that call logs from Fotofili's phone show he also called defendant at 7:14 a.m., around the time he is seen on security footage arriving at the hotel. This evidence supports the prosecutor's theory that Fotofili and defendant planned to rob the victim around the time defendant arrived at the hotel.
Defendant also ignores the fact that security footage shows Fotofili and defendant were waiting in the hotel room for over 10 minutes before Garcia and the victim arrived, which also supports a reasonable inference that Fotofili had filled defendant in on the plan.
Defendant also ignores the fact that defendant told police he left his truck running while he and Fotofili waited for Garcia and the victim to arrive. A reasonable jury could infer from this that defendant was not just there to make sure Garcia got paid, as he told police, and he was also there to rob the victim and left his truck running to facilitate a fast getaway.
Finally, we highlight what defendant himself told police. He told police he was "interrogating" the victim and "holding him down," and he told Garcia "go to the car, find this money," and she did and then came back said, "I got it all," and the victim then "starts going, shit, like that's my money," "so he's like trying to come after us and I'm like, nah, nah, nah, nah, nah," and "[f]inally he just fucking, he books it out of the room" and "I just fucking shot him." In other words, defendant told police he shot the victim as Garcia and Fotofili were leaving with the victim's cash and the victim was trying to stop them, which would support a finding defendant was an active participant in the robbery of the cash. Relatedly, defendant's statements to police also describe a robbery pursuant to People v. Tufunga (1999) 21 Cal.4th 935-a case that defendant himself cites. Tufunga teaches that "taking money from a debtor by force to pay a debt is robbery" because "[t]he legitimacy of the need for our laws to discourage forcible or violent self-help as a remedy seems beyond question." (Id. at pp. 955, 953, italics added.) As the court went on to explain: "A debtor can owe another $150 but the $150 in the debtor's pocket is not the specific property of the creditor. One has the intention to steal when he takes money from another's possession against the possessor's consent even though he also intends to apply the stolen money to a debt. The efficacy of self-help by force to enforce a bona fide claim for money does not negate the intent to commit robbery. Can one break into a bank and take money so long as he does not take more than the balance in his savings or checking account?" (Id. at pp. 954-955.) The answer is no. (Id. at p. 955.) Thus, even if we believe defendant was only at the hotel to make sure the victim paid Garcia in full, enforcing a debt at gunpoint is robbery.
Contrary to all of defendant's arguments, the evidence described above is more than sufficient to support a finding that defendant robbed the victim of funds in his CashApp account, that he knew about and participated in the plan to rob the victim of the cash in his truck, and that he killed the victim in the perpetration of a robbery. The evidence is thus sufficient to support his conviction for first degree murder and for robbery.
II
The Trial Court Was Not Required to Instruct on Theft as a Lesser Included Offense to Robbery
The jury was instructed on robbery, but not on theft. During a jury instruction conference, the court noted, "the People have included lesser included offenses of theft, grand theft, and petty theft." The prosecutor stated, "I don't believe any of those apply. I just provided them in case the Court disagreed." Defense counsel stated, "No objection. Submitted." And the court stated, "I don't think those apply, and I will not be giving those. The evidence would not support them."
Defendant argues this was reversible error, because theft is a lesser included offense of robbery, and the evidence he was guilty of theft but not robbery is substantial enough to merit consideration by the jury. We disagree.
A. Relevant law and standard of review
"' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . ." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], . . . . [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.'" (People v. Breverman (1998) 19 Cal.4th 142, 154, disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7; see also People v. Burns (2009) 172 Cal.App.4th 1251, 1256 ["the trial court is required to instruct on all lesser included crimes [citation] and this is true even though the defendant asks that the lesser offense instructions not be given"].)
It is "well settled" that theft is a lesser and necessarily included offense of robbery (People v. Ortega (1998) 19 Cal.4th 686, 694), and that "[r]obbery has the elements of theft plus an additional element, use of force or fear" (People v. Villa (2007) 157 Cal.App.4th 1429, 1434, italics added; see also People v. Webster (1991) 54 Cal.3d 411, 443 ["Theft is a lesser included offense of robbery, which includes the additional element of force or fear"]). "It also is settled law that, as a general proposition, the trial court is required to instruct on all lesser included crimes [citation], . . . [citation]. [¶] But there is a major qualification to this requirement: the lesser included offense instruction should be given only where there is substantial evidence to support it." (People v. Burns, supra, 172 Cal.App.4th at p. 1256.) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman, supra, 19 Cal.4th at p. 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed." (Ibid.)
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
B. Analysis
Defendant tacitly acknowledges, as he must, that he ended up with money from the victim's CashApp account. He notes, however, that he did not receive any money until an hour after the victim's death, and he argues, "Where there is evidence that the defendant did not form the intent to commit robbery until after the victim has been fatally wounded, the defendant is entitled to have the jury instructed on theft as a lesser included offense of robbery." Here, however, there is not substantial evidence to support the defendant's contention that did not form the intent to rob the victim until after he shot him.
In order to get money from the victim's CashApp account, defendant needed the victim's PIN, and Garcia told police that defendant pointed a gun at and punched the victim and argued with him about the CashApp and the PIN before the victim was killed. The fact that defendant did not actually transfer money out of the victim's account until after he was killed is irrelevant, because the robbery (and thus the intent to commit the robbery) began before the victim was killed.
Moreover, and as noted above, what distinguishes robbery from theft is the use of force or fear. (People v. Villa, supra, 157 Cal.App.4th at p. 1434; People v. Webster, supra, 54 Cal.3d at p. 443.) Here, the evidence amply demonstrates defendant used force or fear (i.e., pointing a gun at, punching, and arguing with the victim) to obtain the victim's CashApp PIN, which then allowed him to transfer money from the victim's account to his account. Simply put, taking money from the victim's CashApp account could not have been accomplished without the use of force or fear, which makes the taking a robbery, not a theft.
Moreover, defendant's own description of events belies any argument that taking the cash was accomplished without force or fear. As detailed above, he told police the victim was trying to get out of paying Garcia what she was owed and told Garcia to take the money out of the victim's car, and when she did, the victim said, "that's my money," and tried "to come after us" and "I just fucking shot him." Tufunga teaches, however, that using a gun to enforce a debt is robbery, and that is precisely what defendant told police he did.
It bears repeating, a "lesser included offense instruction should be given only where there is substantial evidence to support it." (People v. Burns, supra, 172 Cal.App.4th at p. 1256.) Here, substantial evidence does not support an instruction on theft.
III
Defendant's Sentence of Life Without the Possibility of Parole Does Not Constitute Cruel and Unusual Punishment
Defendant's final argument is that his LWOP sentence constitutes cruel and unusual punishment. We disagree.
A court assessing a claim of cruel and unusual punishment must "decide whether the penalty given 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,' thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution." (People v. Cunningham (2001) 25 Cal.4th 926, 1042; see also People v. Palafox (2014) 231 Cal.App.4th 68, 82 [although federal and California constitutional prohibitions on cruel and unusual punishment are separately construed, "[t]his does not make a difference from an analytic perspective"].) A defendant"' "attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions." '" (In re Williams (2020) 57 Cal.App.5th 427, 437.)" '[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.'" (Ewing v. California (2003) 538 U.S. 11, 21.) "[T]he length of a sentence of imprisonment is largely a matter of legislative prerogative, and cannot violate the [prohibition against cruel and unusual punishment] in any but the rarest cases." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193.)
Defendant's primary argument is that an LWOP sentence "for what is actually a second-degree murder" consists of cruel and unusual punishment. But the jury did not find defendant guilty of second degree murder; it found him guilty of first degree murder, and we have concluded that its finding is supported by substantial evidence. Case law teaches that an LWOP sentence for first degree murder does not constitute cruel and unusual punishment, and defendant cites no cases that hold otherwise. (See In re Williams, supra, 57 Cal.App.5th at pp. 437-439 [LWOP sentence not cruel and unusual punishment for first degree murder]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [mandatory LWOP sentence for first degree murder not cruel and unusual under either federal and state constitutions].) Penal Code section 190.2 provides the penalty for first degree murder is either death or LWOP if the jury finds the murder was committed during a robbery or attempted robbery. (Pen. Code, § 190.2, subd. (a)(17)(A).) The jury so found, defendant was thus sentenced as the Legislature determined he should be sentenced, and this is not one of those "rare cases" in which the Legislature's determination violates the ban on cruel and unusual punishments. (People v. Weddle, supra, 1 Cal.App.4th at p. 1195.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: KRAUSE, J., BOULWARE EURIE, J.