Opinion
A129490
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. LEONARD MONTALVO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C16139B)
Defendant Leonard Montalvo (defendant) and another man raced Dodge Chargers on Hegenberger Road, a busy Oakland thoroughfare. The car driven by the other man hit a light pole, killing the other man's passenger. Defendant was tried and convicted by a jury of gross vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) The jury found that, during the commission of the offense, defendant engaged in a speed contest and an exhibition of speed. (Veh. Code, § 23109.) On appeal, defendant contends that, because the victim was a passenger in the other car, the trial court erred in failing to instruct the jury on concurrent causation in language equivalent to that found in CALJIC No. 3.41. He also contends the trial court erred in admitting victim autopsy photographs at trial, and the four-year prison term imposed by the court was an abuse of discretion and unconstitutional. We affirm the judgment.
All undesignated section references are to the Penal Code.
PROCEDURAL BACKGROUND
In July 2009, an information was filed in Alameda County Superior Court charging defendant and co-defendant Leejon Erving (Erving) with one count of vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)). Prior to trial, Erving pled guilty. Following defendant's conviction in May 2010, defendant was sentenced to four years in prison.
FACTUAL BACKGROUND
On November 15, 2007, around 9:50 p.m., Annette Blue was a passenger in a car stopped at a red light at the intersection of Hegenberger Road and Coliseum Way in Oakland. Defendant's car, a black Dodge Charger, stopped to her left. She noticed defendant's car was a security guard's car.
A red car, similar to defendant's, was stopped to Blue's right at the intersection. Blue heard defendant revving his car's engine while they waited at the light. She did not hear the red car revving its engine. Blue was concerned that there might be a race. When the light turned green, defendant's car and the red car took off at the same time, both accelerating very quickly. Blue saw both cars travel ahead at a high speed until they were both out of sight; the cars appeared to be approximately even with each other. Blue estimated that the cars were traveling around 70 miles per hour. As Blue's car traveled up the road, she saw that the red car had crashed and was on fire. Blue saw a body in the road. She did not see defendant's car.
Also on November 15, 2007, around 9:45 p.m., Francisco Cruz was driving on Hegenberger Road when he heard loud racing engines behind him. Two cars, both of which appeared to be Chargers, passed Cruz, one car on the right, the other on the left. Cruz estimated that the cars were traveling between 80 and 90 miles per hour. The cars were racing and zig-zagging. One of the cars hit an electric pole, flipped over, and caught on fire.
Also on November 15, 2007, around 9:45 p.m., Scott Evans was driving on Hegenberger Road. He stopped at a red light at the intersection of Hegenberger and Coliseum Way; there were several other vehicles around him. When the light turned green, Evans saw defendant's black Charger and a burgundy Charger take off from the intersection at high speed. It looked like a speed challenge.
Evans, who was involved in an amateur racing club, followed the cars because he was curious to watch them. Evans estimated that the cars were traveling over 100 miles per hour. The cars appeared to be fairly close to each other. Evans saw one of the cars hit a light pole. As Evans approached the scene of the accident, he did not see defendant's car.
Christine Middleton, a crime scene technician, was dispatched to the scene. After Middleton arrived, she saw defendant's black Charger return to the scene. Another officer testified that defendant was cooperative with the police.
The speed limit along the route of the race was 40 miles per hour. The car that crashed had been driven by co-defendant Erving. The body in the road was Erving's passenger, Mark Ian Mann, who had been killed in the accident.
Defendant's Testimony
Defendant, who owned a private security company, testified that the evening of the collision he was driving his company car. He was training his passenger, an employee, on patrolling. They were on their way to one of the properties defendant patrolled. When defendant stopped near the intersection of Hegenberger and Coliseum, he noticed a burgundy Charger on his left. The burgundy Charger first stopped in defendant's blind spot and then pulled forward. The occupants of the burgundy Charger were staring at defendant in a mean way for no apparent reason. Defendant was concerned the occupants of the other Charger might have a firearm or do something violent. He felt his and his passenger's lives were threatened.
Defendant heard the burgundy Charger rev its engine. He testified this could have been a challenge to race or a "derogatory thing." Defendant denied racing Erving, but admitted leaving the intersection at a fast speed. This was not to race, but to get away from the burgundy Charger and to show defendant's passenger what the car, a "performance vehicle," was capable of doing. Defendant estimated he was traveling at approximately 80 miles per hour.
Defendant testified he was not aware of where the burgundy Charger was as he sped down Hegenberger. He assumed he had left it behind. At some point, however, the burgundy Charger passed on defendant's right. At that point, defendant was preparing to turn left as he approached an intersection, and he had slowed to a speed of about 50 to 60 miles per hour. The burgundy Charger wrecked almost immediately after passing defendant.
After the accident, defendant drove around the block to return to the scene of the crash. He got out of his car and helped clear traffic. He then asked the officers if they needed anything; they said they did not so defendant left and drove to his girlfriend's nearby residence. She encouraged him to return to the scene to give a statement and he did so.
DISCUSSION
I. There Was No Instructional Error
The information charged Erving and defendant with "VEHICULAR MANSLAUGHTER WITH GROSS NEGLIGENCE, a violation of section 192(c)(1) . . . in that on or about November 15, 2007, . . . said defendants did unlawfully, and without malice, kill MARK IAN MANN, a human being, while driving a vehicle with gross negligence and in the commission of [an] unlawful act, not amounting to a felony, to wit, a violation of: [Vehicle Code, section] 23109.1 and [Vehicle Code, section] 22350; and while driving a vehicle in the commission of a lawful act which might have produced death, in an unlawful manner, and with gross negligence." As relevant to this appeal, section 192, subdivision (c), also provides, "[t]his section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner." Defendant contends that, because Erving's conduct was the direct cause of Mann's death, in order to properly instruct the jury on proximate cause, the trial court should have instructed the jury on the requirements for finding that defendant's conduct was a concurrent cause of Mann's death.
Section 23109.1 of the Vehicle Code specifies the punishment for "[a] person convicted of engaging in a motor vehicle speed contest in violation of subdivision (a) of Section 23109 that proximately causes" a specified injury. Section 22350 of the Vehicle Code provides, "[n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property."
We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "[W]e consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled." (People v. Tate (2010) 49 Cal.4th 635, 696.) "We assume jurors are intelligent persons capable of understanding and correlating jury instructions" (People v. Martin (1983) 150 Cal.App.3d 148, 158) and "we presume that the jury 'meticulously followed the instructions given' " (People v. Cruz (2001) 93 Cal.App.4th 69, 73). (See also People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions."].)
The most factually analogous California decision on the causation issue is People v. Kemp (1957) 150 Cal.App.2d 654. In Kemp, two cars driven by defendants Kemp and Coffin were racing and, as they approached an intersection, a third car crossed their path. (Id. at p. 657.) Kemp swerved and avoided a collision, but Coffin's car collided with the third car, killing a passenger. (Ibid.) Kemp's conviction for manslaughter was affirmed on appeal; the court rejected Kemp's argument that he was not a proximate cause of the victim's death because he had not collided with the vehicle in which the victim was a passenger. (Id. at p. 658.) The court reasoned: "The evidence here strongly indicates that Kemp and Coffin were inciting and encouraging one another to drive at a fast and reckless rate of speed on a residence street and as they closely approached a blind intersection. It was by the merest chance that Kemp was able to avoid hitting the other car, and that Coffin was not. Only the matter of a split second and a few inches made the difference. They were both violating several laws, the acts of both led directly to and were a proximate cause of the result, and the fact that the appellant happened to narrowly escape the actual collision is not the controlling element. The evidence is sufficient to show that they were not acting independently of each other, and that they were jointly engaged in a series of acts which led directly to the collision. The language of section 192 of the Penal Code is broad enough to impose criminal liability in this situation and the evidence, with the reasonable inferences therefrom, is sufficient to show that the homicide was a proximate result of the commission of an unlawful act or acts on the part of the appellant, within the meaning of that section." (Kemp, at p. 659.) Kemp was cited with approval by the California Supreme Court in People v. Sanchez (2001) 26 Cal.4th 834, 846 (Sanchez)
In Sanchez, the defendant participated in a gun battle with a member of a rival gang and an innocent bystander was killed by a stray bullet. (Sanchez, supra, 26 Cal.4th at p. 838.) The court held that, although it could not determine whether the defendant actually fired the fatal round, the evidence supported "a finding that defendant's commission of life-threatening deadly acts in connection with his attempt on [the rival gang member's] life was a substantial concurrent, and hence proximate, cause of [the victim's] death." (Id. at pp. 846, 848-849.)
In the present case, the trial court instructed the jury on the issue of proximate cause in the language of CALCRIM No. 620, as follows: "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death. [^] The failure of another person to use reasonable care may have contributed to the death. But if the defendant's act was a substantial factor causing the death, then the defendant is legally responsible for the death even though another person may have failed to use reasonable care."
Defendant contends the trial court erred in failing to instruct the jury on the concept of concurrent causation, using the language of CALJIC No. 3.41, as follows: "When the conduct of two or more persons contributes concurrently as a cause of the injuries or deaths, the conduct of each is a cause of the injuries or deaths if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the injuries or deaths and acted with another cause to produce the injuries or deaths."
In People v. Jennings (2010) 50 Cal.4th 616, 670, the California Supreme Court stated, "[a] concurrent-cause instruction is required when the evidence places at issue two or more causes of the result of the crime." The court has expressly endorsed the definition of concurrent cause in CALJIC No. 3.41. (See People v. Bland(2002) 28 Cal.4th 313, 338 ["CALJIC Nos. 3.40 and 3.41 . . . correctly define proximate causation. [Citations.] Accordingly, the trial court should have given an instruction like CALJIC No. 3.40 and, because the evidence suggested more than one cause, No. 3.41"]; see also Jennings, at p. 670; Sanchez, supra, 26 Cal.4th at pp. 845, 847; People v. Carrillo (2008) 163 Cal.App.4th 1028, 1037.) On the other hand, although the California Supreme Court has never addressed the adequacy of CALCRIM No. 620, it has broadly stated that, where there are concurrent causes of death, a defendant is criminally responsible if his or her conduct was a "a substantial factor contributing to the result." (People v. Catlin (2001) 26 Cal.4th 81, 155 (Catlin); accord, People v. Butler (2010) 187 Cal.App.4th 998, 1009.)
In effect, defendant contends the trial court had a sua sponte duty to instruct the jury using language equivalent to CALJIC No. 3.41 because the jury could have found he was not a proximate cause of Mann's death, even if it believed he was racing, if it also concluded he had withdrawn from the race before the crash. However, no such sua sponte duty existed.
Preliminarily, we note defendant misconstrues the law on concurrent causation. Defendant reads the definition of concurrent cause in CALJIC No. 3.41 to mean that the jury could not properly have found his conduct to be a concurrent cause of Mann's death if the jury believed he and Erving were no longer racing when Erving's car collided with the light pole. Defendant relies on the language requiring that the concurrent " 'cause' " be " 'operative at the moment of death.' " (Sanchez, supra, 26 Cal.4th at p. 845; see also id., at p. 847.) Defendant misreads that language to mean that defendant's wrongful conduct must have been ongoing at the time of the death. That is not the law. Rather, the focus is on determination of the cause of death, not the temporal proximity of any particular conduct to the actual time of death. In one of the cases defendant cites, Catlin, supra, 26 Cal.4th at page 157, the court pointed out that the trial court's instructions on proximate cause should not place " 'undue emphasis on physical or temporal nearness.' " (See also People v. Bland, supra, 28 Cal.4th at p. 338.) The key is the determination of whether a cause was a substantial factor in producing the death of the victim, not whether the cause was temporally closest to the time of death. (Catlin, at p. 157.)
In Catlin, the issue was whether poison administered by the defendant was a substantial factor in the victim's death, despite the victim's preexisting physical problems. (Catlin, supra, 26 Cal.4th at p. 156.) The court concluded the evidence of causation was "overwhelming" even though "defendant's act was not necessarily close in time—or place—to the death of" the victim. (Id. at pp. 156-157.)
We agree with those courts that have rejected the proposition that a defendant's withdrawal from a race defeats causation, at least absent evidence that the competing driver was aware of the withdrawal and had sufficient opportunity to slow down before the crash occurred. In a civil case, the court in Sena v. Turner (1961) 195 Cal.App.2d 487, 492, rejected the contention that "as a matter of law [defendant's] participation in the race could not be a proximate cause of the accident if the race ended before the collision." Instead, "[t]he jury could properly find that the race proximately caused the collision even though the race was over if all the hazardous circumstances continued in existence until the time of collision." (Ibid.; see also Agovino v. Kunze (1960) 181 Cal.App.2d 591, 599 [in a civil case involving an accident caused by racing, stating " 'one who negligently sets in motion a series of events stands as sponsor of the result and liable therefor' "].)
As the Iowa Supreme Court explained in State v. McFadden (Iowa 1982) 320 N.W.2d 608, 613-614, "the notion of withdrawal is pertinent only insofar as it relates to the element of proximate cause. For example, if one drag racer were to abandon the race by slowing down to normal speeds or stopping, and his competitor became aware of the defendant's withdrawal but still chose to continue driving fast and recklessly, that fact might have a bearing on whether the defendant's drag racing was a proximate cause of a subsequent collision between his competitor and a third party . . . a defendant's asserted withdrawal should not be viewed as an absolute defense, but only as a factor affecting the determination of proximate cause." (See also Lemons v. Kelly (Or. 1964) 397 P.2d 784, 786 ["It was also for the jury to decide if the racing was the cause of the accident. For even if the race had terminated some seconds before it would still be for the jury to decide if there were a causal connection between the racing and the accident."].)
Further, the trial court's sua sponte duty is a limited one. "Sua sponte instructions are required only ' " 'on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.]" ' [Citation.]" (People v. Kimble (1988) 44 Cal.3d 480, 503 (Kimble).) Also, " 'a trial court has a sua sponte duty to give instructions on the defendant's theory of the case, including instructions "as to defenses ' "that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' " ' [Citations.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 824 (Gutierrez).)
In this case, defendant never testified he had been racing and then withdrew from the race before the accident. He denied racing and said he was speeding only to escape from Erving. Defense counsel made that point clear in pre-trial proceedings, in his opening statement, and in his closing argument. In doing so, counsel seemed to concede that if defendant were engaged in a speed contest his conduct was a proximate cause of the accident. In the factual context of this case, there was no sua sponte duty "raised by the evidence" (Kimble, supra, 44 Cal. 3d at p. 503) to provide the additional instruction, and giving that instruction would have been "inconsistent with the defendant's theory of the case." (Gutierrez, supra, 45 Cal.4th at p. 824.)
We also reject defendant's contention that the court's instructions were inadequate because "the jury could have found that [defendant] was a 'substantial factor' if it found that Erving intended to race with [defendant], even if [defendant] did not intend to engage in a speed contest in concert with Erving and was fleeing from Erving as [defendant] testified." However, the jury in this case expressly found that defendant was engaged in a "speed contest" in and during the commission of the vehicular manslaughter. The trial court instructed the jury that the prosecution had to prove that defendant "willfully engaged in a speed contest," explaining "[a] person engages in a speed contest when he or she uses a motor vehicle to race against another vehicle, a clock, or other timing device." As there was no evidence defendant was racing against a timing device, the jury necessarily concluded defendant had engaged in a race with Erving. Because the jury rejected defendant's testimony that he was not engaged in a race, the verdict would not have been more favorable had the jury been instructed that, for defendant's conduct to be a concurrent cause, his conduct had to "act[] with another cause to produce" Mann's death.
II. Defendant Forfeited Any Objection to Admission of the Autopsy Photos
Defendant contends the trial court erred in admitting four autopsy photographs of Mann (People's Exh. 1, LM1 through LM4). He argues the photographs were unnecessary because the accidental cause and manner of Mann's death was not contested at trial. We conclude defendant forfeited this claim by failing to object to admission of the photographs during trial.
Prior to trial, defendant moved in limine to exclude the autopsy photographs. Defense counsel argued any graphic evidence would be cumulative and unduly prejudicial. The prosecutor argued that some photographs should be admitted to show the amount of force produced by the crash, which would demonstrate the speed of the race. At the time of the in limine motion, the trial court had not yet viewed the challenged photographs, and the court prohibited the prosecutor from showing them during his opening statement. The court stated the prosecutor would be allowed to introduce the photographs in conjunction with the coroner's testimony if they were not duplicative or "too gory or too inflammatory." The court indicated it was open to the possibility that the photographs should be excluded on the ground raised by defense counsel. The court directed the parties to meet and confer on the issue and stated it did not "want to make any decisions without looking at the photographs."
At trial, the four autopsy photos at issue on appeal were introduced during the testimony of the forensic pathologist who performed the autopsy. Defendant did not object during the pathologist's testimony or at the time of admission of the photographs.
Although defendant moved in limine to exclude the autopsy photographs, the trial court made no ruling on the admissibility of any particular photographs at that time. Defendant's failure to obtain a ruling by renewing his pretrial objection to admission of the photographs resulted in forfeiture of the issue on appeal. (Evid. Code, § 353.) Defendant argues his motion in limine preserved the issue for appeal, but he cites no authority that a motion in limine is sufficient to preserve an issue where the trial court does not make a ruling. The case he cites, People v. Ramos (1997) 15 Cal.4th 1133, 1171, emphasizes that for a motion in limine to preserve an objection for appeal "the proponent must secure an express ruling from the court." "Because the trial court did not rule on his objections in limine, [defendant] 'was obligated to press for such a ruling and to object to [the evidence] until he obtained one. He failed to do so, thus depriving the trial court of the opportunity to correct potential error.' [Citation.]" (Ibid.) Thus, defendant's objection to admission of the autopsy photographs has been forfeited as an issue on appeal.
III. The Trial Court Did Not Abuse Its Discretion at Sentencing
Defendant contends the trial court abused its sentencing discretion by failing to give sufficient weight to his personal characteristics as a factor in support of probation and as a mitigating circumstance. We disagree.
Before imposing its sentence, the trial court stated it had read and considered the probation officer's report recommending imposition of probation with a six-month jail term; a letter from a police officer calling defendant an "unsung hero" and describing the assistance defendant had provided to the police in various cases; and a letter from the prosecution. The court also heard argument from defense counsel and the prosecutor and heard from defendant's wife and two friends. The trial court acknowledged defendant was not under the influence of drugs or alcohol at the time of the offense, did not have a criminal record, and was willing to comply with the terms of probation. In announcing its decision not to grant probation, the court stated it had considered the criteria affecting probation as set forth in the California Rules of Court and concluded probation was not appropriate. The court emphasized that defendant's "conduct resulted in great physical injury and death to another human being," defendant was "an active participant by engaging in a speed contest and by speeding with gross negligence and inducing his codefendant to do the same," defendant did not express remorse or accept responsibility, and there was a likelihood that defendant would be a danger to others if not imprisoned.
The trial court imposed the midterm sentence of four years in prison. The circumstances in aggravation relied on by the court included that the crime "involved great bodily harm to another person resulting in the actual death of [Mann], disclosing a high degree of callousness and disregard on the defendant's part for the safety of his passenger and the other drivers and pedestrians on the road at that time." The court noted the accident occurred on a "heavily traveled" road at an hour "when other drivers, persons on bicycles, and pedestrians are on city streets." The court also considered that defendant drove at least 80 miles an hour, witness Blue testified it was defendant who revved his engine, and all three eyewitnesses testified defendant was racing. The court further noted that defendant had induced Erving to participate in the race by revving his engine in an apparent challenge. In mitigation, the trial court considered that defendant had no criminal record. After listening to further argument by counsel, the court stated it had considered the consequences the sentence would have on defendant, his family, and his business.
" 'All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.' [Citation.] 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court will abuse its discretion if it relies on circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (Ibid.) The trial court need not state reasons for minimizing or disregarding circumstances in mitigation. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
Defendant argues the denial of probation was an abuse of discretion because there was ample evidence that defendant was not a danger to the community and would comply with probation. The trial court found defendant posed a danger to the community because he refused to acknowledge any wrongdoing. The court believed this presented a risk that defendant might continue to drive dangerously. The trial court stated, "While the defendant has expressed regret over the death of the victim, it falls short of what the court would consider remorse for what happened. Also, the likelihood that if not imprisoned, [defendant] will be a danger to others. . . . The defendant did admit in his sworn testimony that . . . he exceeded the speed limit by going 80 miles per hour or higher on a street where the posted speed limit was 40 miles an hour. . . . In the probation report, [defendant] was quoted as saying: 'I am innocent. I was not racing. I feel terrible that someone died. I feel for that person's family and friends and their loss, but I did not do it. I should not be here. I'm a law-abiding citizen and always have been.' The court considers that statement as a total refusal to accept any responsibility for what happened that night. As such, the court considers that [defendant] does present a danger to other drivers in this community as long as he does not feel that he was speed racing on that particular night and because he has admitted, not only on that night exceeding the speed limit, going twice the speed limit, but he also admitted that at some point he might have been going faster than 80 miles an hour."
Defendant argues the trial court's "focus on [defendant's denial that he was racing with Erving was misplaced" because witness Blue could have misidentified the car that revved its engine. However, that testimony was only part of the evidence that defendant raced Erving. Moreover, although Blue may have given different vehicle locations in her statement to the police, her police statement and trial testimony were consistent in stating that it was defendant's car that she heard revving its engine.
The trial court's conclusion finds additional support in defendant's trial testimony that he usually sped along Hegenberger, which "is built like a freeway." Defendant also asserted that it was sometimes appropriate for him to speed in the course of his job, even though he was not legally authorized to do so. He refused to accept that traveling at double the speed limit was dangerous, stating it "[c]ould be dangerous. Depends on the conditions and the driver's experience."
Defendant also argues that his "heroic personal characteristics" and lack of criminal record should have been given more weight as circumstances in mitigation. The record reflects that the trial court did consider those circumstances. The court specifically referenced defendant's lack of a criminal record and his work in security, and stated it had considered the remarks that had been made on defendant's behalf. Defendant's positive personal characteristics were not such that the trial court was obligated to conclude they outweighed the aggravating circumstances in the case.
For the reasons stated, the trial court's decisions to deny probation and impose the midterm were not "arbitrary or capricious." (People v. Sandoval, supra, 41 Cal.4th at p. 847; People v. Weaver, supra, 149 Cal.App.4th at p. 1311.) The court did not abuse its discretion at sentencing.
IV. The Sentence Imposed by the Trial Court Was Not Unconstitutional
Defendant contends that the four-year prison sentence imposed by the trial court is unconstitutional under the state and federal constitutions because it is grossly disproportionate to his culpability and the punishment imposed on Erving. His claim fails.
A defendant bears the burden of establishing that the punishment imposed is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.) The proscription against cruel and unusual punishment is violated when a penalty 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 Lynch (1972) 8 Cal.3d 410, 424; accord, In re Nunez (2009) 173 Cal.App.4th 709, 725.) A defendant "attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions. (Lynch, [at p. 431].) The petitioner need not establish all three factors—one may be sufficient [citation], but the petitioner nevertheless must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability [citation]. As a result, '[f]indings of disproportionality have occurred with exquisite rarity in the case law.' [Citation.]" (Nunez, at p. 725.)
Defendant does not challenge his sentence under the second and third Lynch factors; instead, he concentrates on the first factor. In considering the nature of the offense, courts should consider the circumstances surrounding the commission of the crime, " 'including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' " (In re Nunez, supra, 173 Cal.App.4th at p. 731.) In considering the nature of the offender, courts should consider the defendant's individual culpability as shown " 'by such factors as his age, prior criminality, personal characteristics, and state of mind.' " (Ibid.) Defendant argues his sentence is disproportionate to his crime because he has had no prior trouble with the law and does not pose a threat to society. However, as discussed previously, the trial court concluded that defendant does pose a threat. Moreover, the court considered defendant's background and personal circumstances and properly concluded they were outweighed by the nature of the offense and defendant's lack of acceptance of responsibility. To the extent defendant argues that four years is too long a sentence for his offense, we must keep in mind that "[f]ixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) This is not such a case.
Defendant also argues his sentence is disproportionate in light of the punishment imposed on Erving. The relevant facts are as follows. Before trial, the trial court told defendant that Erving had been speaking with the district attorney and might resolve his case. Subsequently, Erving pled guilty; he ultimately was sentenced to one year in county jail, to be served on consecutive weekends. After the jury found defendant guilty, the trial court sentenced him to four years in prison.
In People v. Jackson (1996) 13 Cal.4th 1164, 1246, the California Supreme Court refused to compare a defendant and codefendant's sentences, where the defendant contended that the penalty of death he received was disproportionate to the life without parole sentence received by the codefendant. The court stated, " 'Properly understood, intracase proportionality review is "an examination of whether defendant's death sentence is proportionate to his individual culpability, irrespective of the punishment imposed on others." ' " (Id. at p. 1246.) In any event, even assuming a comparison of defendant's and Erving's sentences is proper, we conclude defendant has not shown the sentence he received was unconstitutionally disproportionate. The testimony from witness Blue at trial indicated that defendant instigated the race by revving his engine, which arguably made him even more culpable than Erving. Moreover, the record on appeal does not include the probation officer's report for Erving's sentencing. Without that report, there is no basis to conclude there was no justification for the lighter sentence Erving received. In particular, we do not know whether Erving demonstrated the genuine remorse and acceptance of responsibility that the trial court found lacking in defendant.
We reject defendant's claim that the sentence imposed by the trial court was unconstitutional.
DISPOSITION
The trial court's judgment is affirmed.
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SIMONS, Acting P.J.
We concur.
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NEEDHAM, J.
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BRUINIERS, J.