Opinion
D057395 Super. Ct. No. SCD199049
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. GABINO MENDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.
A jury convicted Gabino Mendez of the second degree murder of Adrian Sanchez in violation of Penal Code section 187, subdivision (a) (undesignated statutory references will be to the Penal Code) and found he intentionally and personally discharged a firearm causing Sanchez's death within the meaning of section 12022.53, subdivision (d) (hereafter section 12022.53(d)). The court sentenced Mendez to a total prison term of 40 years to life, consisting of a term of 15 years to life for the murder conviction plus a consecutive term of 25 years to life for the true finding on the personal use of a firearm enhancement allegation.
Mendez appeals, contending (1) his conviction should be reversed because the court prejudicially erred in refusing to instruct the jury on the lesser included offense of misdemeanor involuntary manslaughter; (2) his conviction should also be reversed because the court prejudicially erred in failing sua sponte to instruct the jury on the defense of mistake of fact; and (3) his sentence of 40 years to life should be reversed because he was 16 years of age with no prior criminal record at the time he committed the crime, and the sentence constitutes cruel and unusual punishment. We affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
In the afternoon on May 16, 2006, the victim, Sanchez, was sitting at a bus stop on Clairemont Mesa Boulevard in San Diego. He was conversing with Veronica Chavarria and Nancy Perez, who were also waiting for the bus. As they were talking, school let out and a large number of students from nearby schools started to congregate around a nearby parking lot area.
Shortly thereafter, Mendez came riding up to the bus stop on his bike and stood right in front of Sanchez while straddling his bike. Mendez cursed Sanchez and screamed at him, "Where are you from? Where are you from?" Sanchez replied that he did not want any problems, but Mendez continued to be confrontational, announced that the area belonged to Clairemont, and challenged Sanchez to fight. Sanchez said, "I don't give a fuck," told Mendez he was from Mission Beach, waved his hands, and stated he did not want any problems.
Mendez refused to calm down and, still straddling his bike, started to come toward Sanchez, who stood up. According to Chavarria, Mendez lifted up his shirt, revealing a handgun, but he got tangled up in the bike as he was trying to pull out the gun and then fell backwards, flipping over the bicycle, which ended up hanging off the curb into the street. Chavarria testified that Mendez, who appeared "kind of embarrassed that he fell down with the bike," stood up and was "in a hurry to get [the gun] out of his pants." He lifted up his shirt and pulled the gun out from his waistband and started to aim it. Chavarria and Perez yelled at Mendez to put the gun—which Detective John Tefft's testimony established was a .22-caliber handgun—away because there were children all around. As Mendez was putting the gun back inside his waistband, he accidentally shot himself in the leg. Chavarria indicated that Mendez grimaced with pain, said, "Oh fuck," grabbed his groin, and started to fall. Perez testified that Mendez "did kind of a wincing motion like somebody had kicked him in his groin." Another witness, George Alfonso Guerra, testified that Mendez "kind of bent over grimacing" and indicated that Mendez appeared to be angry that he had shot himself.
Having seen the gun, Sanchez backed away from Mendez and continued to say he did not want any problems. According to Chavarria, when Mendez stood back up, Sanchez ran and hid behind a pole at a nearby store. Mendez ran toward the store and Sanchez started running across a parking lot. Several eyewitnesses testified that Mendez pulled the gun out again, aimed at Sanchez, and fired the gun multiple times as Sanchez was trying to run away. Sanchez was struck with three bullets and died from a gunshot wound to his upper chest.
B. The Defense Case
Mendez testified in his own defense with the assistance of an interpreter, but gave much of his testimony in English. He stated that on May 16, 2006, at around 2:00 p.m., he rode a bicycle from his uncle's house in Clairemont to a park, where he smoked some marijuana and drank a can of beer. He saw in a trash can at the park what he believed was a black BB gun. He stated he had not seen a gun before, never had a gun before, and had never shot a gun before. He pulled the gun from the trash can and put it in his waistband. He then left the park.
According to Mendez, he rode down the sidewalk and stopped at a bus stop because cars were passing on the street, and looked around to see if he knew anyone. He saw Sanchez, who was sitting on the bench and acted as if he (Mendez) was "mad-dogging him," which means looking at him with a mean face. Sanchez said, "What are you looking at?" Mendez admitted that he and Sanchez argued, but denied saying "This is Clairemont" or anything like that. Sanchez stood up and approached Mendez, who jumped off his bike, pulled out the gun, and aimed it at Sanchez "so he could back away." Mendez testified he never fell off the bike or fell to the ground. When he pulled out the gun, people started screaming at him to put it away. He heard both girl and boy voices; they "were talking shit to [him]." When he put the gun away, it "went off." Mendez remembered the gun going off, but testified, "I didn't feel no [sic] pain." He testified several times that he felt no pain at all.
Mendez testified that when he shot himself, he heard people laughing at him. He stated this made him mad and "that's when I decided to—to—to shoot the gun." He saw Sanchez approaching him, pulled the gun out again, and, when he pointed it at Sanchez, "it just went off again like." He fired the gun only three times, not seven, eight, or nine times. Mendez testified, "I thought I was just firing at the air."
Cross-examination
On cross-examination, Mendez acknowledged that Sanchez was backing away from him when he pulled the gun out the second time and pointed it at Sanchez. When the prosecutor asked whether he shot Sanchez in the back, Mendez acknowledged he saw photographs of the bullet wound in Sanchez's back, but replied, "I don't—I don't know if it was in the back. I just remember shooting, but I didn't saw [sic] where." He acknowledged he was "upset and mad" at Sanchez, but stated, "I lost control of myself. So I was like—I didn't realize what I was doing." Mendez also acknowledged that when he went through the bus stop toward Sanchez, Sanchez was backing away from him, and Sanchez was scared and wanted to get away from Mendez. He had seen in movies guns that were revolvers with cylinders that spin around. He initially denied knowing the difference between a revolver and a semiautomatic gun that has a slide and a magazine. Upon further questioning, however, Mendez acknowledged he was familiar with semiautomatics that are square in design and have a slide on top of the gun that goes backward and forward. He indicated he thought the gun he fired at Sanchez was more like the square kind with a slide.
DISCUSSION
I
CLAIM OF INSTRUCTIONAL ERROR (FAILURE TO INSTRUCT
ON MISDEMEANOR INVOLUNTARY MANSLAUGHTER)
Mendez first contends his second degree murder conviction should be reversed because the court prejudicially erred in refusing to instruct the jury on the lesser included offense of misdemeanor involuntary manslaughter. In support of this contention, Mendez asserts that "an instruction on misdemeanor involuntary manslaughter was required based on the evidence that [he] believed he was firing a BB gun, and was therefore guilty of the misdemeanor of willfully discharging a BB gun in a grossly negligent manner" in violation of section 246.3, subdivision (b) (hereafter section 246.3(b)). He also asserts the court's instructional error requires reversal under the Chapman harmless error standard, but, even under the lesser Watson harmless error standard (discussed, post), the error requires reversal of his conviction because, "[h]ad the jury been correctly instructed . . . , it is reasonably probable that one or more jurors would have had a reasonable doubt as to whether Mendez in fact believed the gun was a BB gun, and therefore held out for an involuntary manslaughter verdict."
Section 246.3(b) provides: "Except as otherwise authorized by law, any person who willfully discharges a BB device in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year." Subdivision (c) of that section defines "BB device" as "any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action."
Under the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18, 24, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; see also Chapman, at p. 24.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In response, the People argue the court did not commit instructional error because substantial evidence did not support Mendez's misdemeanor theory of involuntary manslaughter, and, even if the evidence did support such a theory, the court's failure to instruct the jury on this theory was harmless under the Watson harmless error standard.
Assuming, without deciding, the court erred by failing to instruct the jury on a misdemeanor theory of involuntary manslaughter as a lesser included offense of murder, we conclude any such error was harmless under the applicable Watson harmless error standard.
A. Background
1. Murder charge and section 12022.53(d) personal use of a firearm allegation
Mendez was charged with one count of murder (count 1: § 187, subd. (a)) as a result of his conduct in the shooting death of Sanchez. The accusatory pleading also alleged Mendez intentionally and personally discharged a firearm causing Sanchez's death within the meaning of section 12022.53(d).
2. Mendez's testimony
During his defense case-in-chief, on direct examination, Mendez testified that when he went to throw his beer can into the trash can at the park, he saw what he believed was a black BB gun in the trash can, and he picked it up and put it in his waistband.
On cross-examination, Mendez again testified that when he looked in the trash can at the park, he saw what he thought was a BB gun, a "fake gun," which he picked up and put in his waistband. The prosecutor asked Mendez, "When did you realize it wasn't a fake gun?" Mendez first replied, "When it went off on my leg." The prosecutor then asked, "That was the first time you realized it was real?" Mendez responded, "Yes," but then immediately changed his answer and said, "well, actually I didn't—I still didn't know it was real. Because that was the sound that the—the other gun—the BB gun has." The following exchange then occurred between the prosecutor and Mendez:
"[PROSECUTOR]: Okay. The same type of sound, right?
"[MENDEZ]: Yeah.
"[PROSECUTOR]: So when you first heard the sound in your pants, you still didn't know it was a real gun?
"[MENDEZ]: No. Because I couldn't feel no—no [sic] pain at all.
"[PROSECUTOR]: You didn't know you were hit at that point; right?
"[MENDEZ]: No.
"[PROSECUTOR]: So you thought it was still just a fake gun?
"[MENDEZ]: Yeah.
"[PROSECUTOR]: When was the first time you realized it was not a fake gun?
"[MENDEZ]: When I seen [sic] myself bleeding.
"[PROSECUTOR]: And when was the first time you saw yourself bleeding?
"[MENDEZ]: That day when I went to—the time I went to—to my friend's house.
"[PROSECUTOR]: The first time you thought it was real?
"[MENDEZ]: Yes."
3. Jury instructions and the court's denial of Mendez's request for an involuntary manslaughter instruction
With respect to the murder charge, the court instructed the jury on first degree murder, second degree murder, the lesser included offense of voluntary manslaughter based on heat of passion and imperfect self-defense, and the defense of self-defense.
During the jury instruction conference, defense counsel asked the court to instruct the jury on involuntary manslaughter. The court was initially inclined to give the involuntary manslaughter instruction based on Mendez's testimony he believed the gun he fired at Sanchez was a BB gun rather than a firearm:
"THE COURT: Are you requesting invol[untary manslaughter]?
"[DEFENSE COUNSEL]: I think I am, [Y]our Honor, so the jury can decide.
"THE COURT: I think if the jury were to believe that the—if [Mendez] did not know what he was doing, was firing a handgun, until he realized that he was shot when he reached this—this residence and noticed a bullet, that that arguably, rather than no crime had been committed, could be manslaughter. And I'm trying to articulate how—or invol[untary manslaughter]. I'm sorry—if he had seen, as he said, a BB gun and he thought this looked like a BB gun and didn't think he was shooting bullets but was shooting BB's.
"[DEFENSE COUNSEL]: Or if the testimony is—some people testified to—that he was just firing. He was going through the hole. He is just firing. It's like a negligent discharge theory.
"THE COURT: I think there's enough to give that. I have to give manslaughter—
"[PROSECUTOR]: Invol[untary manslaughter].
"THE COURT: —I mean invol[untary manslaughter]."
However, after the lunch recess and an apparently unreported conference, the court denied Mendez's request for an involuntary manslaughter instruction:
"THE COURT: So, [defense counsel], your request for invol[untary manslaughter] is denied.
"[DEFENSE COUNSEL]: Okay. Were we on the record for that? "THE COURT: Yeah. [¶] Did you get that part?
"THE REPORTER: Yeah.
"THE COURT: Then we are giving three separate verdict forms.
"[PROSECUTOR]: Your Honor, just kind of back up. Because I don't—can we just kind of summarize the invol[untary manslaughter] thing. I mean, we didn't have any—have it on the record.
"THE COURT: Okay. Let me just at least attempt to recreate the reasoning that it is not an involuntary manslaughter case. [¶] In looking at [Mendez's] testimony in the light most favorable to [him], what he found he didn't think was a gun when he shot himself and when he fired it at or toward the victim, Mr. Sanchez. Therefore, what, if any, crime has been committed by pulling the trigger on something he didn't think was a gun. I don't think a crime has been committed. And in the alternative, involuntary manslaughter can occur in the process of the defendant committing a lawful act but acting with criminal negligence. [¶] And in that second theory what is the lawful act wherein [Mendez] acted with criminal negligence[?] And that too fails. Involuntary manslaughter would apply were the People to allege the commission of the misdemeanor infraction or noninherently dangerous felony or were the People to allege that [Mendez] committed a lawful act of criminal negligence, which they
did not. And accordingly, involuntary manslaughter does not lie, and the request to so instruct by [defense counsel] is denied."
The court was apparently relying on the statutory definition of involuntary manslaughter set forth in section 192, subdivision (b) (hereafter section 192(b)), which provides: "Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] . . . [¶] (b) Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle."
4. Verdicts
The jury convicted Mendez of second degree murder and found he intentionally and personally discharged a firearm causing Sanchez's death within the meaning of section 12022.53(d).
B. Applicable Legal Principles
1. Principles governing a trial court's duty to instruct on lesser included offenses "The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744 (Blair).)"That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (Id. at p. 745.)
"To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (Blair, supra, 36 Cal.4th at p. 745, italics added.) Stated differently, " '[s]ubstantial evidence' in this context ' "is evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' [the defendant committed] the lesser offense, but not the greater." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) " 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' " (People v. Moye (2009) 47 Cal.4th 537, 556 (Moye).) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (Breverman, at p. 162; see also Moye, at p. 553.)
a. Watson harmless error standard
"[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted, citing Watson, supra, 46 Cal.2d at p. 836).
Breverman explained that appellate review under Watson "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177.) A reasonable probability under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)
2. Misdemeanor involuntary manslaughter as a lesser offense included in murder
Involuntary manslaughter is "the unlawful killing of a human being without malice" committed either "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192(b); People v. Prettyman (1996) 14 Cal.4th 248, 274 (Prettyman).) Misdemeanor involuntary manslaughter is the unlawful killing of a human being committed without malice in the commission of an unlawful act, not amounting to felony. (People v. Lee (1999) 20 Cal.4th 47, 60-61 (Lee), citing § 192(b).)
Involuntary manslaughter is a lesser offense included within the crime of murder. (Prettyman, supra, 14 Cal.4th at p. 274). Thus, misdemeanor involuntary manslaughter is also a lesser offense included within the crime of murder. (See ibid.; see also Lee, supra, 20 Cal.4th at pp. 60-61.)
The trial court must sua sponte give instructions on involuntary manslaughter as a lesser offense included in murder if there is substantial evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense of murder but not of the lesser included offense of involuntary manslaughter. (Prettyman, supra, 14 Cal.4th at pp. 274-275; Lee, supra, 20 Cal.4th at p. 61; see Blair, supra, 36 Cal.4th at p. 745).
C. Analysis
We need not reach the issue of whether the court committed instructional error by failing sua sponte to instruct the jury on misdemeanor involuntary manslaughter, which Mendez claims was a lesser offense included within the count 1 murder offense with which he was charged in this matter. Assuming, without deciding, that the court erred by failing sua sponte to instruct the jury on misdemeanor involuntary manslaughter based on Mendez's testimony that he thought the gun he used to shoot Sanchez was a BB gun or "fake" gun, we conclude his second degree murder conviction must be affirmed because he has failed to meet his burden on appeal of demonstrating in this noncapital case a reasonable probability or chance he would have obtained a more favorable outcome had the claimed instructional error not occurred. (See Breverman, supra, 19 Cal.4th at p. 178; Watson, supra, 46 Cal.2d at p. 836.) The jury found true beyond a reasonable doubt the sentence enhancement allegation that Mendez personally and intentionally discharged a firearm, causing Sanchez's death, within the meaning of section 12022.53(d). The court had specifically instructed the jury under CALCRIM No. 3149 that, for purposes of section 12022.53(d), a firearm is "any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion." (Italics added.)
The record thus establishes that the jury, by finding Mendez intentionally shot Sanchez with a firearm, rejected Mendez's defense theory that he was unaware he was shooting a .22-caliber firearm when he chased and fired his weapon at Sanchez after Mendez accidentally shot himself in the leg. Had the jury believed Mendez's testimony both that he felt no pain at all when he shot himself and that he believed the gun he said he found in a trash can in a park shortly before he killed Sanchez was a "fake" or a BB gun, it necessarily would have found not true the section 12022.53(d) personal-use-of-a-firearm allegation.
In this regard we note that Mendez does not challenge the sufficiency of the evidence supporting the jury's section 12022.53(d) true finding. Even if he had made such a challenge, we conclude it would have been unavailing, given the overwhelming incriminating evidence presented by the prosecution from which any jury composed of reasonable persons could find beyond a reasonable doubt that Mendez knew at the time he fired the weapon at Sanchez that he was using a firearm, not a BB gun. Specifically, the trial record shows Mendez testified several times that he felt no pain at all when he shot himself. However, one eyewitness, Chavarria, testified that, when the gun went off, Mendez's face looked "frightful"; he said, "Oh fuck"; and then he grabbed his groin and started to fall. Another eyewitness, Perez, testified that Mendez "did kind of a wincing motion like somebody had kicked him in his groin." A third eyewitness, Guerra, testified that Mendez "kind of bent over grimacing" and indicated that Mendez appeared to be angry that he had shot himself. Given the foregoing substantial and overwhelming testimony of the eyewitnesses showing that Mendez grimaced in pain, grabbed his groin, and uttered an obscenity when he shot himself with the .22-caliber handgun, it is clear the jury found his testimony was not believable and determined he knew that the gun was a firearm and not a BB gun.
Furthermore, Mendez's own testimony provided substantial evidence from which any reasonable jury could find beyond a reasonable doubt that he knew he was using a firearm, not a BB gun, when he began shooting at Sanchez. The prosecutor asked Mendez on cross-examination, "When did you realize [the gun] wasn't a fake gun?" Mendez replied, "When it went off on my leg." Mendez essentially repeated this admission immediately thereafter when the prosecutor asked him, "That was the first time you realized it was real?" Mendez responded, "Yes." Apparently realizing he had just admitted he knew he was using a firearm when he began shooting at Sanchez, Mendez then changed his testimony. Again, the jury's true finding on the section 12022.53(d) allegation shows the jury did not believe Mendez's testimony that he believed he was shooting a BB gun.
After reviewing the entire cause, including the evidence, we conclude that Mendez has failed to meet his burden under Watson, supra, 46 Cal.2d 818, of showing a reasonable probability he would have obtained a more favorable result if the court sua sponte had instructed the jury on the elements of misdemeanor involuntary manslaughter as a lesser included offense of murder. The evidence supporting his second degree murder conviction "is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which [he] complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.) Accordingly, we affirm Mendez's second degree murder conviction.
II
CLAIM OF INSTRUCTIONAL ERROR
(FAILURE TO INSTRUCT ON MISTAKE OF FACT)
Mendez next contends his conviction should be reversed because the court also prejudicially erred in failing sua sponte to instruct the jury on the defense of mistake of fact. He complains that, "despite [his] testimony that he mistakenly believed the gun he used to kill [Sanchez] was a BB gun, the trial court did not give a mistake of fact instruction." He expressly acknowledges that "[t]he defense of mistake of fact . . . was based upon [his] testimony that he mistakenly believed that the gun was a BB gun and defense counsel had previously requested the jury be instructed on involuntary manslaughter based on this same evidence." Thus, he contends, reversal of his second degree murder conviction is required "for primarily the same reasons" that support his claim (discussed, ante) that his second degree murder conviction should be reversed because the court prejudicially erred in refusing to instruct the jury on the lesser included offense of misdemeanor involuntary manslaughter.
We reject this additional claim of instructional error for the same reasons we have rejected Mendez's claim the court prejudicially erred in refusing to instruct the jury on the lesser included offense of misdemeanor involuntary manslaughter. The evidence supporting his second degree murder conviction "is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which [he] complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.) Mendez has failed to meet his burden under Watson, supra, 46 Cal.2d 818, of showing a reasonable probability he would have obtained a more favorable result if the court sua sponte had instructed the jury on the defense of mistake of fact.
III
CLAIM OF CRUEL AND UNUSUAL PUNISHMENT
Last, Mendez contends his sentence of 40 years to life should be reversed because he was 16 years of age with no prior criminal record at the time of the crime, and the sentence constitutes cruel and unusual punishment under the federal and state Constitutions. We reject this contention.
A. Federal Law Claim
1. Applicable law
"The Eighth Amendment [to the United States Constitution], which applies against the States by virtue of the Fourteenth Amendment, [citation], provides: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' " (Harmelin v. Michigan (1991) 501 U.S. 957, 962.)
Under the Eighth Amendment, challenges to the length of a sentence are rarely granted. (Solem v. Helm (1983) 463 U.S. 277, 289-290 ["'[outside] the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare,'" fn. omitted].) The United States Supreme Court has explained that reviewing courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." (Id. at p. 290, fn. omitted.) The high court has explained that "[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan, supra, 501 U.S. at p. 1001.)
2. Analysis
Mendez has failed to meet his burden of showing, for purposes of the Eighth Amendment prohibition against cruel and unusual punishment, that his 40-year-to-life sentence is grossly disproportionate to his crime. The jury convicted him of second degree murder for his fatal shooting of Sanchez and found true the section 12022.53(d) sentence enhancement allegation that he intentionally and personally discharged a firearm causing Sanchez's death.
In support of his claim that his sentence is grossly disproportionate to the severity of his crime and thus constitutes cruel and unusual punishment within the meaning of the Eighth Amendment, Mendez relies on Graham v. Florida (2010) ____ U.S. ____ (Graham). Mendez's reliance on Graham is misplaced. In Graham, the United States Supreme Court categorically held the federal "Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, supra, at p. 2034, italics added.) The high court emphasized that "[t]he instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense." (Id. at p. 2023, italics added.)
Graham is readily distinguishable in that the juvenile offender in that case, unlike Mendez, was sentenced to life without the possibility of parole solely for a nonhomicide offense. Mendez was sentenced to a life term with the possibility of parole for a homicide offense. Graham thus has no application here.
Given that the categorical limitation of Graham, supra, 130 S.Ct. 2011, does not apply here, we are left with a juvenile offender, Mendez, who was convicted of a murder he committed by intentionally using a firearm against an unarmed victim who had attempted to avoid a confrontation with Mendez, and who was running away when Mendez chased and killed him. Mendez acknowledges that his crime was "extremely serious." We conclude his sentence of 40 years to life is not grossly disproportionate to the extreme severity of the crime he committed with remorseless disregard for his vulnerable victim, and thus does not violate the Eighth Amendment prohibition of cruel and unusual punishment. (See Harmelin, supra, 501 U.S. at p. 1001.)
B. California Law Claim
We also conclude Mendez's cruel and unusual punishment claim under the California Constitution is similarly unavailing.
1. Applicable law
Sections 17 and 24 of article I of the California Constitution set forth the same prohibition as that set forth in the Eighth Amendment. Article I, section 17 provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." Section 24 of that article mandates that California courts interpret the California cruel or unusual punishment prohibition in a manner consistent with the federal Constitution.
The California Supreme Court has emphasized that a defendant must overcome a "considerable burden" in challenging a penalty on the ground it constitutes cruel or unusual punishment under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Our high court has stated that "[t]he doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." (Ibid.; see also People v. Dillon (1983) 34 Cal.3d 441, 477 (Dillon).)
In In re Lynch (1972) 8 Cal.3d 410 (Lynch), our high state court explained the function of the judiciary in enforcing the constitutional prohibition against cruel or unusual punishment:
"[L]egislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition. [¶] As we concluded in People v. Anderson (1972) 6 Cal.3d 628, 640, 'The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.' " (Lynch, supra, 8 Cal.3d at p. 414; see also Dillon, supra, 34 Cal.3d at pp. 477-478.)
In Dillon, supra, 34 Cal.3d 441, the California Supreme Court reaffirmed the rule it adopted in Lynch that "a statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed." (Dillon, at p. 478, citing Lynch, supra, 8 Cal.3d at pp. 423-424, fn. omitted.)
Our high court has adopted three techniques (the Lynch techniques) that California courts have used to determine whether a particular sentence is so grossly disproportionate to the offense for which it is imposed that it constitutes cruel and unusual punishment within the meaning of the Eighth Amendment. (Dillon, supra, 34 Cal.3d at p. 479 ["In each such decision the court used certain 'techniques' identified in Lynch[, supra, 8 Cal.3d at pages 425-429] to aid in determining proportionality."].)
The first Lynch technique for determining proportionality is an examination of the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425; see also Dillon, supra, 34 Cal.3d at p. 479.) In conducting the inquiry into the "nature of the offense," the courts "are to consider not only the offense in the abstract—i.e., as defined by the Legislature—but also 'the facts of the crime in question' [citation]—(i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.) The related inquiry into the "nature of the offender" is focused "on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Under the second Lynch technique, the courts "compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Lynch, supra, 8 Cal.3d at p. 426, italics omitted.)
The last Lynch technique employed by California courts is a comparison of the challenged punishment with punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at p. 436.)
Ultimately, the sole test to be applied in California for determining whether a particular punishment violates the California constitutional prohibition against cruel or unusual punishment is whether, " 'although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (Dillon, supra, 34 Cal.3d at p. 478 quoting Lynch, supra, 8 Cal.3d at p. 424, italics added.)
It is permissible to base the determination of whether the punishment constitutes cruel and unusual punishment solely on the nature of the current offense and the offender. (Dillon, supra, 34 Cal.3d at p. 487, fn. 38; see also People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
2. Analysis
Applying the first Lynch technique by examining the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (Lynch, supra, 8 Cal.3d at p. 425), we again note that Mendez acknowledges his crime—second degree murder, which the jury found he personally and intentionally committed with a firearm within the meaning of section 12022.53(d)—was "extremely serious." Looking at the crime in the abstract, imposition of a sentence of 15 years to life for the murder conviction plus a consecutive 25-year-to-life enhancement for the personal use of a firearm is not grossly disproportionate to the crime and does not constitute cruel or unusual punishment.
Reviewing the totality of circumstances surrounding Mendez's crime, we note that in addition to his senseless and remorseless taking of the unarmed victim's life, Mendez's violent use of what his own testimony indicated was a semiautomatic firearm with utter disregard for human life created an extraordinarily dangerous situation that threatened the lives of a large number of students from the nearby schools who had started to congregate near the scene of the shooting after school let out. Although Mendez testified he fired only three additional shots after he shot himself, one eyewitness witness testified he fired seven shots. Given that Mendez recklessly shot himself before he fired multiple shots at Sanchez, any one of the shots he fired at Sanchez could have killed or seriously injured someone else. Under the circumstances, the fact that Mendez killed only one person was fortuitous. Mendez's crime of violence presented an extraordinary danger to society and warranted the full punishment allowed by law, which the court imposed.
On cross-examination, Mendez indicated he was familiar with semiautomatic handguns that are square in design and have a slide on top of the gun that goes backward and forward. He also indicated he thought the gun he fired at Sanchez was more like the "square kind . . . with [a] slide."
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Considering next the nature of the offender and inquiring whether, under the totality of the circumstances, Mendez's punishment is "grossly disproportionate to [his] individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind" (Dillon, supra, 34 Cal.3d at p. 479), we conclude Mendez demonstrated he presents an extreme danger to society and his lengthy sentence is not grossly disproportionate to his individual culpability. The evidence shows Mendez provoked and escalated a confrontation with Sanchez as soon as he (Mendez) arrived at the bus stop on the bicycle. Sanchez was seated at the bus stop, minding his own business and talking to some girls, when Mendez came up to him, cursed at him, and screamed, "Where are you from? Where are you from?" One eyewitness testified Mendez's words meant, "[W]hat gang are you from[?]." Sanchez replied that he did not want any problems, but Mendez continued to be confrontational, announced that the area belonged to Clairemont, and challenged Sanchez to fight. Sanchez repeatedly stated he did not want any problems. Mendez, who refused to calm down, escalated the situation by pulling out a gun and aiming it at Sanchez. As already noted, Mendez recklessly shot himself while putting the gun back in his waistband, and then pulled the gun out again and fired multiple shots at Sanchez while chasing him, killing him.
Contrary to Mendez's claim on appeal, the fact that he was 16 years of age and that he had no history of juvenile adjudications when he committed this crime are not mitigating factors that require reversal of his sentence. Mendez demonstrated a ruthless disregard for the life of his unarmed and fleeing victim and the school children who were congregating nearby at the time he committed this cold-blooded murder. By finding true the section 12022.53(d) personal use of a firearm allegation, the jury rejected his claim he believed he was shooting only a BB gun and found he intentionally fired the .22-caliber firearm. We have concluded substantial evidence supports the jury's finding.
After reviewing the nature of the crime, the nature of the criminal, and the statutory directive regarding the appropriate sentence, we conclude Mendez's 40-year-to-life sentence is not so disproportionate to the crime for which it was imposed that it shocks the conscience or offends fundamental notions of human dignity. (See Dillon, supra, 34 Cal.3d at p. 478; Lynch, supra, 8 Cal.3d at p. 424.) Accordingly, we also conclude Mendez has failed to meet his burden of showing his punishment is cruel or unusual within the meaning of article I, section 17, of the California Constitution.
DISPOSITION
The judgment is affirmed.
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NARES, J.
WE CONCUR:
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McCONNELL, P. J.
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McINTYRE, J.