Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. SWF006720, Michael S. Hider and Judith C. Clark, Judges.
Patricia L. Brisbois, 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, Assistant Attorney General, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Shawn Malone Khalifa of first degree murder (Pen. Code, § 187, subd. (a)), in connection with Khalifa’s alleged participation in the burglary and robbery of 77-year-old Hubert Love’s home. Fernando Gil Rivera, Mark Anthony Gardner, Jr., and defendant were charged with the murder of Love; Rivera was also charged with the murder of Juan Pena, who allegedly participated in the murder of Love. Defendant, 15 years old on the date of the murder, appeals his conviction and sentence on five grounds: (1) the trial court prejudicially violated his right to a speedy trial by refusing to grant his motion to sever despite repeated continuances of the trial date; (2) the court prejudiced his right to a jury trial by instructing the jury that Gardner, who testified for the prosecution, was an accomplice as a matter of law; (3) the court erred by failing to instruct the jury with the lesser included offense of second degree murder; (4) insufficient evidence was presented to support his conviction for felony murder (§ 189); and (5) defendant’s sentence of 25 years to life constitutes cruel and unusual punishment. We reject each of defendant’s contentions and affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
The testimony of Gardner, if believed, establishes the facts set forth in the next two paragraphs.
Rivera and Gardner were with defendant at defendant’s house at approximately 8:00 p.m., on January 27, 2004. Sometime later, Pena arrived at defendant’s house. Pena and Rivera discussed their respective money deficiencies. Someone suggested robbery as a way to fill their empty wallets, and it was then mentioned that “an older guy” lived down the street who could be robbed. No one disagreed with this idea. After this conversation, all four walked toward Love’s residence, defendant and Gardner following behind Rivera and Pena at a distance of approximately 15 to 20 feet.
Pena and Rivera walked toward and entered the front door of Love’s home. Defendant walked to the back of the house and told Gardner to wait outside of the front of the house. Defendant entered the house and looked through the kitchen drawers for approximately one minute. Defendant was in the house for approximately two to three minutes. Defendant came back from the back of the house and through the gate on the side of the house. Seconds later, Rivera and Pena came out of the front door. Defendant told Gardner, “let’s get out of here.” Defendant and Gardner walked away from the house; Rivera and Pena got into Love’s car and drove down the street. Defendant got into the car at the prompting of Rivera and Pena, but Gardner declined to do so. The next morning, defendant told Gardner that Rivera and Pena “beat the dude to death.”
After finding Love’s car, which had been abandoned on a dirt road, police discovered Love’s dead body in his home. Defendant, along with Rivera and Gardner, were accused by information with the murder of Love; the information alleged the murder was committed while the three were committing robbery (§ 211) and burglary (§ 459). Rivera alone was charged with an additional count of murder — that of Pena, whose dead body was found in a canal. Gardner negotiated a plea bargain whereby he pleaded guilty to voluntary manslaughter and robbery in exchange for his testimony during the trial of defendant and Rivera. Rivera pleaded guilty to the Love murder, and was convicted by a jury of the Pena murder. A jury convicted defendant of first degree murder and found the felony murder special circumstances to be true. The court sentenced defendant to a term of 25 years to life in state prison.
DISCUSSION
We shall address each of defendant’s arguments in turn, with additional facts provided in each section as necessary.
Right to Speedy Trial
Defendant asserts his right to a speedy trial was violated by the court’s repeated continuances of his trial and the court’s denial of defendant’s motion to sever his case from that of his codefendants. Absent a finding of good cause, waiver, or consent, a trial court must dismiss a criminal action “when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information....” (§ 1382, subd. (a)(2); see also § 1050, subd. (a).) “[O]n appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review.” (People v. Martinez (2000) 22 Cal.4th 750, 769.)
“When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” (§ 1098.) “A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.)
Defendant was arrested on January 30, 2004, following the execution of a search warrant at his home. An initial felony complaint against defendant, Rivera, and Gardner was filed on February 3, 2004. Defendant pleaded not guilty to all charges on February 26, 2004. Defendant then waived time and consented to multiple continuances of his preliminary hearing from March 2004 through September 2005. Following a preliminary hearing conducted in September and November 2005, defendant was held to answer on the complaint on November 4, 2005. An information was filed on November 16, 2005.
Defendant waived time for speedy trial to September 12, 2006. On September 12, 2006, all parties stipulated to continue the trial to October 17, 2006. Between October 17, 2006 and June 19, 2007, the court repeatedly continued the trial at the request of the codefendants and over defendant’s objection.
On October 17, 2006, counsel for the codefendants requested a continuance because counsel for Gardner was in another trial. Counsel for defendant answered ready and objected to a continuance. The court found “good cause to take it out to [December 5, 2006].”
On November 29, 2006, counsel for Rivera again asked for a continuance; defendant again opposed the continuance and answered ready for trial. Defendant argued that if the court were to continue the trial again, he wished to sever the other case and begin his trial. The court found good cause to continue the trial to January 23, 2007. The court also ordered the attorneys “not to get involved in any trial that will interfere with the January 23rd date.”
On January 18, 2007, counsel for Gardner was in trial on another case. Defendant again objected and again orally moved for severance. The court noted it would consider only a written motion for severance. The court stated: “[Defendant], over your objection, I’m going to keep you in the case for the present time. And I will trail you to exactly the same date, February 26th, for readiness conference and jury trial, last day March 8th.” The court again ordered all counsel to “stay out of trial, let’s get this thing done. It is very old.”
On February 26, 2007, the prosecutor and Gardner’s counsel were in a trial together and requested yet another continuance. Defendant again objected and asked that his motion for severance be heard. The court, finding good cause, continued the trial to April 16 and set the motion for hearing.
On April 4, 2007, the court denied defendant’s motion: “I think there’s much merit to what you’re saying, and I’m very inclined, if there’s another continuance, [to] sever these matters. [¶] Gentlemen, what I want to do is pick a date certain. It has to be June.... [¶] We cannot go on indefinitely.... [Defendant] does have rights. The Court is here to protect everyone’s rights to the best of its ability. But to sever now would be a horrible thing in as long as I am convinced that in the very near future we are going to trial.”
The court again continued the trial to June 19, 2007, based upon a finding of good cause. Defendant then thrice waived his time for a speedy trial and the court continued the trial (first to July 12, then to August 9, then to August 20) without objection by the parties. Pretrial motions began on August 28. Defendant agreed to a continuance of the trial from September 6 to September 10.
On September 10, 2007, the People provided defense counsel with previously undisclosed evidence, consisting of audio recordings of portions of the police investigation. The court severed Gardner’s case from that of defendant and Rivera, finding this to be the most equitable solution because defendant and Rivera did not wish to have a further continuance. Jury trial for defendant and Rivera began on September 17; Gardner pleaded guilty the same day.
The record suggests the court did not intend to delay the trial eight months over the objection of defendant when it began granting continuances, but instead hoped at each hearing it could keep all defendants joined while delaying only briefly defendant’s right to a speedy trial. Section 1050.1 indicates that a continuance of one defendant’s trial for good cause shown “shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder. The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.” The court found what it deemed to be good cause at each hearing for continuing the trial with regard to the codefendants. As the court granted the continuances in small chunks and each time was convinced counsel would be ready for trial the next time, it appears the court sought to apply the law in good faith.
But there is some point at which a trial court abuses its discretion by allowing repeated conflicts of codefendants’ counsel to override the expressed desire of a defendant to go to trial without further delay. A blind adherence to the statutory preference for jointly trying defendants is inappropriate. (Arroyo v. Superior Court (2004) 119 Cal.App.4th 460, 467 [granting writ of prohibition where court granted continuance of trial date solely to maintain joinder of parties without considering speedy trial rights of the petitioner].) Moreover, “good cause is not shown by... chronically congested courts and overburdened appointed counsel.” (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 495; see also People v. Johnson (1980) 26 Cal.3d 557, 575 [“calendar conflict on the part of defense counsel or the trial court cannot routinely serve to justify denial of a motion to dismiss when trial is postponed beyond the statutory period”] (Johnson).) The sheer length of delay in this action over the objection of defendant is difficult to justify under established case law.
But we need not definitively answer the question of whether the court abused its discretion in this case. Because defendant did not seek extraordinary pretrial relief and instead has appealed the court’s alleged denial of his speedy trial rights after his conviction, the determinative question in this appeal is whether defendant has established that the delays resulted in prejudice. (Johnson, supra, 26 Cal.3d at p. 574.)
Defendant contends he was prejudiced in two ways. First, defendant claims Gardner would not have testified against him had the motion to sever been granted because Gardner pleaded guilty six months later. Second, defendant claims the delay in his trial resulted in a witness (Erick Castillo), who testified at the preliminary hearing, being unavailable at trial (he moved to Mexico and refused to return to testify).
Defendant’s arguments are speculative and contradictory. As a general matter, because the murder case against defendant was an initial filing, it could have been refiled against defendant even if the court dismissed the action for lack of a speedy trial. (See Johnson, supra, 26 Cal.3d at p. 574 [no prejudice because “[t]his is not a case in which the statute of limitations would have been a bar to new charges, or one in which a dismissal would itself have barred refiling”].) Thus, the case did not need to proceed immediately after defendant’s objections to the continuances granted by the court. Defendant does not contest this point, but instead claims he sought severance and a speedy trial rather than outright dismissal of the case.
But as defendant recognizes, the prosecutor procured the testimony of Gardner after it was determined he could not use the preliminary hearing testimony of two witnesses who were unavailable at trial. The court, at the insistence of defendant and the codefendants, refused to allow the prosecutor to use Castillo’s preliminary hearing testimony at trial, finding the prosecutor had not shown due diligence. The identical chain of events — Gardner testifying against him pursuant to a plea bargain — may have occurred had defendant’s motion to sever been granted and his trial proceeded thereafter.
Even assuming defendant had been tried immediately after his motion to sever, and Castillo had been available and testified against defendant at his trial, defendant still has not established prejudice. Defendant claims Castillo’s testimony was more favorable to him than that of Gardner, in that Castillo said he saw Gardner go into the back yard with defendant and saw only Pena and Rivera inside the house and not defendant. But Castillo’s testimony was perfectly consistent with Gardner’s testimony with regard to defendant. The fact that Castillo did not perceive the precise facts perceived by and testified to by Gardner does not mean Castillo’s testimony would have led to a better result than that obtained with Gardner’s testimony. And, as detailed below with regard to the sufficiency of the evidence supporting the conviction, the prosecution also had additional, corroborating evidence that supported both the testimony of Gardner and the testimony of Castillo.
Instruction That Gardner Was an Accomplice as a Matter of Law
Defendant also posits the court erred by instructing the jury with CALCRIM No. 335. As provided to the jury, this instruction read In relevant part: “If the crime of murder was committed, then... Gardner was an accomplice to that crime. [¶] You may not convict the defendant of murder based on the statement/or testimony of an accomplice alone. You may use the statement/or testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement/or testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s statement/or testimony; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime....”
Under the facts of this case, the court was required to instruct the jury on the principles governing testimony by accomplices, including the need for independent, corroborating evidence to support a conviction. (§ 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) Defendant’s trial counsel did not object to this instruction but instead stated “I believe it’s correct” after reading the instruction as modified by the court. Defendant’s attorney expended considerable effort in his closing argument on the ramifications of CALCRIM No. 335, explaining to the jury the “special rules that you’re given as jurors when you’re dealing with accomplices. And these special rules are there because accomplices have this tremendous motivation or reason to lie, to not be truthful and that is because they want to save their own skin.” As defendant did not object to its use at trial, the People rightly conclude defendant forfeited any objection to CALCRIM No. 335.
Defendant, however, contends his counsel provided ineffective assistance by stipulating to CALCRIM No. 335 rather than advocating for CALCRIM No. 334, which leaves the factual determination of whether a witness is an “accomplice” to the jury. “‘“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.”’” (People v. Bradford (1997) 14 Cal.4th 1005, 1052.) Defendant claims that if the jury did not find Gardner to be an accomplice, this would have assisted defendant because they might then also have found defendant’s participation in the crime to be insufficient to deem him guilty of felony murder. However, there is a rational basis in the evidence to distinguish between the guilt of defendant and Gardner. If the jury found Gardner was not an accomplice, it could have convicted defendant based solely on the testimony of Gardner, without any corroborating evidence. Defense counsel’s decision at trial to consent to CALCRIM No. 335 rather than CALCRIM No. 334 does not constitute ineffective assistance of counsel.
Failure to Instruct Jury on Lesser Included Offense of Second Degree Murder
Next, defendant argues the court failed to instruct the jury on second degree murder, despite an alleged sua sponte duty to do so. The prosecutor indicated the court should instruct the jury on second degree murder, noting it was “factually almost impossible to get there without convicting [defendant] on a first degree murder” but reasoning defendant “has a right to [the instruction] if he wants it because there’s a theory about how you can get there.” Counsel for defendant, after consulting with defendant, stated, “for tactical reasons, we will not ask for the second degree murder instruction.” The court then stated: “The defense, having tactically determined not to seek the second degree murder instruction, [and] this Court having determined that it would be... quite a contorted argument to get there, this Court will not give second degree murder instructions at the request of the defense.”
During jury deliberations, the jury sent a note to the court stating it “would like to know is there a lesser charge we can find [defendant] guilty of....” Defendant’s counsel concurred with the court’s response to the jury — “No.”
“California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks (1998) 19 Cal.4th 108, 112; see also People v. Daya (1994) 29 Cal.App.4th 697, 713 [by instructing on the lesser included charge of second degree murder, “[t]he court properly dispensed its role of presenting the full range of possible verdicts une[n]cumbered by the strategy of both the prosecution and defense to force an all-or-nothing choice to the charge of first degree murder”].)
As noted by the court, it is questionable whether there is substantial evidence in the record to support a rational determination that defendant committed second degree murder but not felony murder (first degree). Indeed, it is an open question generally in California “whether second degree murder is a lesser included offense when, as here, the prosecution proceeds solely on the theory that the killing is first degree murder under the felony-murder rule and does not argue that the killing is first degree murder because it is willful, deliberate, and premeditated.” (People v. Romero (2008) 44 Cal.4th 386, 402.)
There is no need here to parse the evidence or resolve this legal controversy because, even assuming the court should have instructed the jury on second degree murder, defendant invited instructional error. (People v. Horning (2004) 34 Cal.4th 871, 905 [“We need not decide whether the evidence warranted an instruction on second degree murder in this case because we find any error... invited”].) “[A] defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.” (People v. Barton (1995) 12 Cal.4th 186, 198.)
In arguing his trial counsel provided ineffective assistance, defendant contends there was no possible tactical reason for requesting that the court not instruct the jury on second degree murder, particularly after the jury asked the court whether it could convict defendant of a lesser charge. But defendant ignores the possibility that the jury could have acquitted him. The jury’s question suggested it might be unwilling to convict defendant of first degree murder. Had the jury acquitted defendant, defense counsel’s tactical decision would have been vindicated.
Sufficiency of the Evidence
The jury returned a guilty verdict against defendant for first degree murder under section 187, subdivision (a). The jury also made two separate findings under section 190.2, subdivision (a)(17) — that defendant was (1) engaged in the commission of burglary while committing first degree murder and (2) engaged in the commission of robbery while committing first degree murder.
Defendant generally argues there is insufficient evidence in the record to support his felony murder conviction. In particular, defendant claims there is not substantial evidence showing defendant was a “major participant” in the felonies underlying the special circumstances found by the jury under section 190.2. (See People v. Proby (1998) 60 Cal.App.4th 922, 927 [“In order to support a finding of special circumstances murder, based on murder committed in the course of robbery, against an aider and abettor who is not the actual killer, the prosecution must show that the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony”]; CALCRIM No. 703 [jury instruction for section 190.2, subd. (d), special circumstances findings for defendant guilty of first degree felony murder who is not the actual killer].)
The elements supporting a finding of felony murder special circumstances against a defendant who was not the actual killer differ from the elements necessary to convict a defendant of felony murder in the first instance. “‘All murder... which is committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery and burglary] is murder in the first degree.’ [Citation.] The mental state required is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute.... [¶] The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.” (People v. Cavitt (2004) 33 Cal.4th 187, 197; see also CALCRIM No. 540B [jury instruction for felony murder when coparticipant allegedly commits fatal act].)
Although defendant purports to challenge his felony murder conviction, his brief is actually tailored toward a challenge to the jury’s special circumstance findings. The parties’ briefs both muddle the issues by combining the question of substantial evidence for the underlying felony murder conviction and substantial evidence for special circumstance findings.
As a preliminary matter, it does not appear that the special circumstance findings had any additional effect on defendant’s sentence. Defendant was sentenced to 25 years to life, the standard sentence given to defendants convicted of first degree murder who are not found to have committed special circumstances. (§ 190, subd. (a); § 190.2, subd. (a) [penalty is death or life without parole if one or more special circumstances found].) Had defendant been 16 or 17 years old, he would have been eligible for life without parole based on a finding of first degree murder with at least one special circumstance. (§ 190.5, subd. (b).) The same findings at 18 years old would have qualified defendant for death penalty consideration. (§ 190.5, subd. (a); § 190, subd. (a); § 190.2, subd. (a).) But, as a 15 year old tried as an adult, it appears the question of special circumstance findings was inconsequential to defendant’s sentence. Nevertheless, we will review both defendant’s conviction and the special circumstance findings for substantial 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.” [Citation.]’ [Citation.] We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. [Citation.] We may reverse for lack of substantial evidence only if ‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’ the conviction.” (People v. Em (2009) 171 Cal.App.4th 964, 969-970 (Em).)
“Defendant was charged with murder under a theory of felony murder. Defendant’s liability for [Love’s] murder was based on aiding and abetting the commission of or conspiring to commit robbery [and burglary]; there is no dispute that [another individual(s)] was the actual [person who actually killed Love]. To establish defendant’s liability as an aider and abettor, the prosecution was required to prove defendant knew of [his friends’] unlawful purpose, and intended to and did aid, facilitate, promote, encourage, or instigate [his friends’] commission of the crime. [Citations.] Presence at the scene of a crime, alone, is insufficient to establish aiding and abetting liability. [Citation.] To establish defendant’s liability as a coconspirator, the prosecution was required to prove defendant intended to and did agree with [Rivera and Pena] to commit a robbery [or burglary], defendant intended that one of them would commit the robbery [or burglary], and one member of the conspiracy committed an overt act to accomplish the robbery [or burglary].” (Em, supra, 171 Cal.App.4th at p. 970.)
The testimony of Gardner detailed above, along with the physical evidence of Love’s death, is substantial evidence of defendant’s guilt, so long as it was supported by independent corroborating evidence. In brief, Gardner testified that he, defendant, Rivera, and Pena met at defendant’s house, discussed robbing an elderly man, and walked to Love’s house. Rivera and Pena, then defendant, went inside the house. Defendant was in the kitchen while he was inside and he looked through Love’s drawers. After they left the house, Rivera, Pena, and defendant drove off in Love’s car. Gardner’s testimony provided the bulk of the detail about the events of the night of the murder.
Independent, corroborating evidence of defendant’s guilt is in the record. Defendant’s mother testified that defendant told her he and Gardner saw two of their friends go into an old man’s house and they figured their friends were robbing the house. Defendant’s mother also testified that defendant told her he and Gardner went to the side of Love’s house and looked inside the window. Defendant’s mother also testified defendant told her that he and Gardner “heard a moan, and it didn’t sound so good as they booked out of there[.]” This evidence confirms much of Gardner’s testimony. Even though defendant never entered the house in his version of events, defendant was arguably acting as an aider and abetter by his own admission (by acting as a lookout and by encouraging the actions of Rivera and Pena by accompanying them to the crime). Furthermore, by defendant’s own admission, he heard a noise suggesting the victim had been seriously harmed yet he took no action to assist the victim.
There is other corroborating evidence. Officers testified that the condition of Love’s living room suggested there was a struggle, as items were scattered and blood was spilled in several places. The coroner testified that in order to inflict the injuries sustained by Love, punches and kicks of maximum force would have been applied multiple times. This supports a finding defendant would have known what was happening to Love, as it would be easy to sense the attack upon Love. In addition, the back yard sliding door was ajar when the police arrived at the Love residence, supporting the inference defendant entered and exited the house through the back door.
Love’s daughter and son-in-law gave Love a box of chocolate liqueurs. The police found the box of chocolate liqueurs in Love’s kitchen. Four individually wrapped chocolate liqueurs were found in the backseat of Love’s car, which was found by police abandoned on a dirt road near the residence of Rivera’s brother. While in custody, defendant said to a police officer, “I didn’t kill anyone. I was just cruising in the back seat when Fernando shot that guy.” This evidence supports a finding that defendant stole the chocolates from Love’s kitchen and took the chocolates with him as he fled with Rivera and Pena in Love’s car.
In short, there is substantial evidence in the record supporting defendant’s felony murder conviction; the jury could have reasonably concluded he participated in the burglary or robbery of Love’s home and that Love died during the burglary or robbery. The jury also could reasonably conclude defendant was a major participant in the crime and acted with reckless indifference to human life based on his participation in the underlying felonies and his continued cooperation with Rivera and Pena after observing or hearing the attack on Love.
Cruel and Unusual Punishment
Finally, defendant challenges his sentence of 25 years to life as unconstitutionally cruel and unusual due to his age (15 years old) at the time of the offense and his relative culpability for the murder of Love. Defendant specifically points out in his reply brief that “[t]he maximum sentence appellant could receive for the crime of first degree murder under any theory committed at the age of 15 is 25 years to life. In other words, if it had been shown appellant specifically intended to murder Love and had brutally beaten Love to death himself, appellant still would have received the same sentence [as he received for his felony murder conviction].”
Both the United States Constitution and the California Constitution prohibit cruel and unusual punishment. “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
There are some bright line substantive limits on sentences dispensed to juvenile offenders. (See, e.g., § 190.5, subd. (a) [“Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime”]; Roper v. Simmons (2005) 543 U.S. 551, 578-579 [death penalty for juveniles is unconstitutional regardless of crime committed]; People v. Demirdjian (2006) 144 Cal.App.4th 10, 17 [“For juveniles under 16 who were 14 or 15 when [a special circumstance murder] was committed, a life term without possibility of parole is not permitted [under relevant California statutes], leaving a term of 25 years to life with possibility of parole”].)
There are also proportionality requirements inherent in the constitutional prohibitions of cruel and unusual punishment. (See, e.g., People v. Dillon (1983) 34 Cal.3d 441, 487-489 [courts may reduce felony murder to second degree murder if circumstances of case, including age of defendant, suggest the sentence required by a felony murder conviction is excessive and disproportionate] (Dillon); In re Lynch (1972) 8 Cal.3d 410, 424 [punishment is unconstitutional if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity”]; In re Nunez (2009) 173 Cal.App.4th 709, 714-715, 727-728 [sentence of 14 year old to life in prison without the possibility of parole for kidnapping for ransom is unconstitutional, in part because the most a 14-year-old defendant could receive for premeditated murder with special circumstances would be life with the possibility of parole (25 years to life)].)
The question presented here is whether defendant’s sentence is unconstitutional because it would be disproportionate to sentence him to the same punishment he would have received had he personally committed the murder of Love. This contention has some surface appeal, particularly in light of defendant’s young age and “the dubious origins of the felony-murder doctrine, the many strictures leveled against it over the years by courts and scholars, and the legislative and judicial limitations that have increasingly circumscribed its operation [as of 1983].” (Dillon, supra, 34 Cal.3d at pp. 462-463 [also deeming felony-murder rule a “‘highly artificial concept’ which ‘deserves no extension beyond its required application’”].)
But the trial court in this case, unlike its counterpart in Dillon (which attempted to reduce the defendant’s sentence by committing him to the Youth Authority), did not exercise its discretion to reduce defendant’s punishment. As the court explained in denying defendant’s Dillon motion, the evidence suggested defendant voluntarily followed Rivera and Pena to an elderly man’s house with knowledge of what they intended to do, participated in the burglary, did not assist the victim (either during or after the crime) despite being nearby when Love was beaten to death, and joined Rivera and Pena in Love’s automobile after leaving the house. We see no basis to disagree with the trial court’s view of the evidence or find error in the court’s application of Dillon.
And, putting aside the particular facts of this case, courts since Dillon have rejected arguments that sentencing a juvenile to a life term with the possibility of parole based on felony murder is per se unconstitutional. (Em, supra, 171 Cal.App.4th at pp. 966-967, 972-973 [affirming 15 year old’s sentence of 50 years to life for felony murder and weapons enhancement; “[l]ife sentences pass constitutional muster for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill”]; People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 [affirming 26-year-to-life sentence against 14-year-old accomplice to felony murder].) Even the dissenting opinion in Em, authored by Justice Moore, stated a reduction of the sentence to two, concurrent 25 years to life sentences would have been constitutionally acceptable. (Em, supra, 171 Cal.App.4th at p. 978 (conc. & dis. opn., Moore, J.) [“At the time of the murder, defendant was 15. He was passively involved and immature. Two sentences of 25 years to life, running concurrently instead of consecutively, would withstand scrutiny”].) Defendant’s sentence does not amount to the imposition of cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. O’LEARY, J.