Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MCR021365C, of Madera County. Jennifer R.S. Detjen, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant Anthony Joseph Mendez challenges his conviction for murder in the first degree with special circumstances, contending the admission of a co defendant's statement denied him the constitutional right to confront witnesses. He also contends his sentence of life without parole constitutes cruel and unusual punishment. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Theodore Betts and Gabriel Martin lived together in a remote area of Raymond, Madera County. Martin and Betts had a large amount of marijuana at their home. On March 21, 2005, an SUV pulled into Martin and Betts’s driveway. A young woman, Marissa Rubianes, was driving.
Rubianes asked Martin if he knew of an apartment or house for rent in the area. Martin said he did not and asked her to turn the car around and leave. As Rubianes started to back up, two men, Anthony Burciaga and Mendez, jumped out of the back of the SUV holding guns. Burciaga ordered Martin to keep his dog away and told Martin to walk back toward the house. Burciaga was pointing a shotgun at Martin.
When Martin, Burciaga, and Mendez got close to the house, Betts came out with a shotgun. Burciaga shoved Martin and ran toward the back of the house. Betts told Martin to go get another gun and Martin ran inside the house.
Martin was inside the house reaching for a rifle when he heard a shotgun blast coming from the back of the house. Betts came inside, stating he had been shot. Martin went outside, did not see anyone, and fired a round into the air. Martin then went inside to call 911.
Officer Cliff Kirkes was the first to respond to the scene. Betts had six gunshot wounds in his left shoulder and was covered in blood from his shoulder to his feet. Betts died shortly after the paramedics arrived.
Deputy Roy Broomfield also responded to the scene. On his way to the house, he saw Mendez and Burciaga walking down the road toward his vehicle. They were out of breath and their pants and shoes were wet and muddy. Broomfield got out of his patrol car with his weapon drawn and detained both men. Broomfield placed the men in his patrol car and continued heading toward the scene.
On the side of the road, Broomfield and Deputy Charles Bump noticed shoe prints in the dirt. One print matched the pattern on the sole of Burciaga’s shoes; the other print matched the pattern on the sole of Mendez’s shoes. The deputies tracked the shoe prints to the scene of the shooting. While following the shoe print tracks, the deputies found a shotgun hidden underneath a tree limb and a handgun in a hole. The shoe prints continued up the driveway to Martin and Betts’s house and went all the way around to the back of the house. A shotgun shell found at the back of the house was determined to have come from the shotgun found under the tree limb.
On the day of the shooting, Rudy Castillo was interviewed by Detective John Grayson and provided a statement to law enforcement. Castillo’s statement was recorded and a redacted version of the statement was played for the jury. The tape was redacted to omit any references to Mendez. A written, redacted transcript of Castillo’s statement also was provided to the jury.
Castillo told officers that around March 2004, a friend of his had told him that he knew a man who had a lot of marijuana and that Castillo should go and get it. The friend, Bob, told Castillo that it would be easy to take the marijuana because the man who had it was in a wheelchair, could be tied up, and no one would have to be hurt. Bob said the man had 200 to 300 pounds of marijuana on the side of his house.
About two months later in May 2004, Bob drove Castillo to the man’s house to show Castillo where it was located. Later, Castillo went to the man’s house by himself to be sure he remembered its location. On March 20, 2005, Castillo and Bob discussed the marijuana with Burciaga. Castillo claimed Burciaga “took care of it from there” and planned the robbery.
On March 21, 2005, Mendez, Castillo, and Burciaga were in the SUV with Rubianes. A shotgun and pistol were in the car. When they got to Martin and Betts’s property, Burciaga and Mendez got out of the car with the weapons. Castillo was lying down on the back seat.
Castillo heard a commotion and sat up. He saw Burciaga and Mendez walking Martin toward the house. Castillo stepped out of the car. At this point, Betts came out of the house pointing a gun. Castillo heard Martin say, “no, no” to Betts.
Castillo then turned and ran back to the SUV. About the time Castillo climbed into the car, he heard a gunshot. Castillo told Rubianes to go and she took off as they heard a second gunshot. They drove toward Madera. Castillo had Rubianes leave him by the side of the road, where law enforcement officers picked him up.
Grayson also interviewed Mendez. Mendez’s interview was recorded and played for the jury. A transcript of the interview also was provided to the jury.
When Grayson asked Mendez what happened, Mendez responded, “I fucked up.” Mendez stated he was helping Burciaga steal some marijuana and called Burciaga “the mastermind.” Burciaga and he had planned to steal the marijuana for about two months. Mendez stated that when Rubianes stopped the SUV, he and Burciaga climbed out. Burciaga was holding the shotgun and Mendez was holding the pistol. Mendez claimed he was there to steal marijuana and to protect his cousin, Burciaga.
Mendez was walking behind Burciaga. When he saw Betts with a gun, Mendez claimed he told Burciaga to get out of the way and then he started running. As he was running, Mendez heard three gunshots.
Mendez, Castillo, Rubianes, and Burciaga were charged with murder. The special circumstance that the murder was committed in the course of a robbery was alleged. It also was alleged that Burciaga personally and intentionally discharged a firearm; Mendez personally used a firearm; and, as to Castillo and Rubianes, a principal was armed with a firearm.
The trial court severed the trials so that Burciaga and Rubianes were tried together and Mendez and Castillo were tried together.
On April 8, 2008, the jury found Mendez guilty of first degree murder and found true the special circumstance that he was a major participant and acted with reckless disregard for human life while committing a robbery. The jury also found true the special allegation that he personally used a firearm.
Castillo and Burciaga also were found guilty as charged. Rubianes was acquitted.
Mendez was sentenced to a term of life without the possibility of parole for the murder with special circumstance conviction. A consecutive term of 10 years was imposed for the personal use of a firearm.
DISCUSSION
I. Violation of the Confrontation Clause
Forfeiture
Mendez claims that the admission at trial of co defendant Castillo’s statement to law enforcement violated his federal constitutional right to confront the witnesses against him because the redaction of the statement was inadequate to shield his identity and protect his rights. Specifically, Mendez claims that although the redacted statement deleted any reference to him by name, the statement retained references to him and Burciaga as “they” and the reference to “they” could have been a reference only to him and Burciaga in the context of the statement.
After the trials of Burciaga and Rubianes were severed, the trial court notified counsel for Castillo and Mendez that they had a choice of using redacted or unredacted statements of Castillo and Mendez in the trial. Castillo’s attorney had no objection to Mendez’s redacted statement. Mendez’s counsel chose to use Castillo’s redacted statement and made no objection to the manner in which it was redacted.
When Castillo’s statement was offered into evidence, Mendez’s counsel made no objection. At the time the statements of Mendez and Castillo were admitted, the trial court instructed the jury to use each defendant’s statement against only that defendant.
Mendez never made a timely and specific objection based upon the confrontation clause to admission of Castillo’s redacted statement. A claim based on an alleged violation of the confrontation clause must be timely asserted at trial or it is forfeited on appeal. (Evid. Code, § 353, subd. (a); People v. Stevens (2007) 41 Cal.4th 182, 198-199; People v. Alvarez (1996) 14 Cal.4th 155, 186.)
Having failed to raise any objection to the redacted statement of Castillo in the trial court based upon a purported violation of the confrontation clause, Mendez has forfeited any claim of error.
Ineffective assistance of counsel from failure to object
Alternatively, Mendez contends counsel was ineffective for failing to object. In order to establish ineffective assistance of counsel, Mendez must demonstrate that counsel’s performance was deficient and that he was prejudiced by counsel’s performance or lack thereof. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland).) Prejudice is shown when there is a “‘reasonable probability that, but for counsel’s unprofessional errors, the result in the proceeding would have been different.’” (In re Avena (1996) 12 Cal.4th 694, 721 (Avena).)
The People concede that admission of Castillo’s redacted statement with references to “they” likely was error and we agree. The confrontation clause is not violated when a statement is redacted so as to omit any reference to a co defendant or the co defendant's existence. (Richardson v. Marsh (1987) 481 U.S. 200, 211.) A few sentences in Castillo’s redacted statement, however, referred to Burciaga and an unnamed person as “they.” When Castillo’s statement is combined with Mendez’s statement and Martin’s testimony, it is clear that Mendez is the unnamed person in Castillo’s statement. (People v. Fletcher (1996) 13 Cal.4th 451, 469-470.)
Even if admission of Castillo’s statement was error, it was harmless beyond a reasonable doubt. (People v. Anderson (1987) 43 Cal.3d 1104, 1128.) Mendez admitted (1) plotting the robbery for two months with Burciaga; (2) jumping out of the SUV with the pistol; and (3) that his intent was to rob Martin and Betts and protect Burciaga, his cousin. Martin testified that Mendez pointed a pistol at him. Mendez was arrested near the scene and his shoe prints were found at the scene of the shooting.
The evidence of Mendez’s involvement was overwhelming and included his own admissions. It is not reasonably probable that a different outcome would have been obtained but for counsel’s failure to object to the manner of redacting Castillo’s statement. (Avena, supra, 12 Cal.4th at p. 721.) Therefore, Mendez has not shown that he received ineffective assistance of counsel. (Strickland, supra, 466 U.S. at pp. 691-692.)
II. Cruel and Unusual Sentence
Mendez contends that his sentence of life without the possibility of parole is cruel and unusual punishment. Mendez, however, never objected to the sentence in the trial court on any constitutional ground. Consequently, Mendez has forfeited this issue. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Although the issue is forfeited, we will address and reject his contention.
In determining whether punishment is constitutionally excessive, the courts examine, inter alia, the nature of the offense and the offender. (Solem v. Helm (1983) 463 U.S. 277, 290-291, overruled on another ground in Harmelin v. Michigan (1991) 501 U.S. 957, 964-965 (plur. opn. of Scalia, J.); In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) A punishment that involves “unnecessary and wanton infliction of pain” or is “grossly out of proportion to the severity of the crime” violates the Eighth Amendment. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity” violates article I, section 17 of the California Constitution. (Lynch, at p. 424.)
Mendez does not provide separate analyses for federal and state constitutional challenges and most of his briefing appears to be based upon California Supreme Court cases. Furthermore, Mendez does not address or provide any analysis as to whether his punishment is greater than that provided in California for more serious offenses or whether similar offenses in other states carry a less severe punishment. Therefore, we address only that aspect of the cruel and unusual argument addressed by Mendez -- the nature of the offense and the offender.
Mendez argues that at the time of the shooting he was 23 years old, with no record of criminal conduct, had a substance abuse problem, and had suffered from an unstable childhood. He compares himself to the defendant in People v. Dillon (1983) 34 Cal.3d 441 (Dillon), where the teenage defendant was convicted of first degree felony murder and attempted robbery. (Id. at p. 450.) The teenager and his friends planned to steal marijuana from a nearby farm and the teenager armed himself with a.22-caliber rifle. (Id. at p. 451.) When things went awry, the teenager shot and killed the farmer. (Id. at p. 452.) The California Supreme Court reduced the sentence to second degree murder, concluding that the teenager was “an unusually immature youth”; the six other teenagers who participated in the attempted robbery received only “petty chastisements”; and, because of his youth, the teenager could not have received a harsher sentence if he had committed a premeditated murder. (Id. at pp. 487-488.)
Granted, there are similarities between Dillon and Mendez’s case, however, there also are significant differences. The primary difference is that in Dillon, the offender was an immature 17 year old. Mendez was a 23-year-old adult at the time he committed his offense. Furthermore, Mendez planned for weeks with Burciaga to rob Betts and Martin of the marijuana. Mendez jumped out with a loaded pistol in order to confront Martin. Mendez did not retreat until he saw Betts pointing a shotgun at him. Admittedly, Mendez did not have a lengthy prior record at the time of the robbery and shooting. Given the serious nature of the current offense, however, the lack of a prior record is not controlling. (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.)
There is nothing about a life sentence without the possibility of parole imposed upon a 23 year old that shocks the conscience when that 23 year old planned a robbery, knowingly participated in the robbery while armed with a gun, and did nothing to give aid to a man who was shot and bled to death. (Lynch, supra, 8 Cal.3d at p. 424.)
Nor is this a sentence that is grossly disproportionate to the crime. Betts was murdered during a robbery in which Mendez was a major participant. The jury could have imposed a sentence of death pursuant to Penal Code section 190.3. Thus, life in prison without parole is not a penalty that is out of proportion to this offense. (People v. Cooper (1996) 43 Cal.App.4th 815, 827.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARDAIZ, P.J., VARTABEDIAN, J.