Opinion
D081758
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALEJO SANCHEZ, Defendant and Appellant.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, No. FVI20000392, Corey G. Lee, Judge. Affirmed.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
DATO, J.
For reasons that are not totally clear but appear gang-related, appellant David Alejo Sanchez and Mark Barela attacked James O. and Isaiah G. in the middle of a residential street early one morning. Sanchez initiated the attack when he spotted James's and Isaiah's vehicle, stopped and got out of his own car, and then attempted to force Isaiah out of his vehicle through the window. When James jumped on Sanchez, Barela began shooting. Bullets pierced the windshield and the passenger side window. Fortuitously, Isaiah was not shot. James was shot in his knee and his head but survived. On an apparent aiding and abetting theory, a jury convicted Sanchez of two counts of attempted murder and found true a penalty allegation that the attempted murders were committed with premeditation and deliberation.
Sanchez raises four claims on appeal: (1) the instructions on aiding and abetting attempted murder were incorrect because they allowed the jury to convict him of attempted murder without finding he personally possessed malice; (2) insufficient evidence supports the jury finding that he aided and abetted attempted murder; (3) his sentence-specifically, the premeditation penalty-constitutes cruel and/or unusual punishment in this case; and (4) the trial court failed to exercise its discretion to dismiss the premeditation penalty. As we will explain, we reject these claims and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2020, James O. borrowed his brother's car while he repaired his own car, a Honda Accord. With the repairs complete, at around 1:00 a.m. James drove to his brother's home to return the borrowed car. A friend, Isaiah G., followed James in the Honda. When they arrived, James met his brother in front of the house, returned the keys, and briefly thanked him. Isaiah parked across the street and waited in the Honda with the windows down. The Honda had a personalized sticker on the rear window.
The same night, Sanchez and Barela visited a bar with some friends. Barela introduced Sanchez as his brother. Shortly after midnight, Sanchez and Barela left the bar in a white Ford Focus hatchback. Sanchez drove while Barela and his girlfriend rode as passengers. The Ford had three missing windows, including the rear hatch window. It also had residue from stickers that used to be on the rear bumper.
Sanchez drove around for a bit until he spotted James's car parked outside his brother's house with Isaiah in the driver's seat. Sanchez said something to the effect of," 'Oh, there's that foo,'" and stopped the Ford beside the Honda. Sanchez got out of the Ford and asked Isaiah, "Where are you from?" Sanchez told Isaiah to get out of the car, then tried to "get" or "pull" him out of the car through the window.
At trial, Isaiah testified that Sanchez did not physically grab him, but seemed like he was about to. James's testimony indicated that Sanchez made physical contact with Isaiah.
When James saw the commotion, he ran up behind Sanchez, punched the back of his head, and put him in a headlock or chokehold. They fell to the ground in between the vehicles.
As soon as James stood up, Barela got out of the Ford and began shooting. A bullet struck James in the knee. James limped as fast as he could around the front of the Honda and got into the passenger seat. Sanchez chased James. Barela followed, shooting at the front and passenger side of the Honda. A second bullet struck James in the forehead, and a third grazed his cheek. James believed that Sanchez also fired a gun because a bullet struck the passenger window as Sanchez stood there, but James did not directly see Sanchez holding a gun.
James tried closing the passenger door, but Barela and Sanchez were pulling the door open. They struggled back and forth over the door until eventually James pulled it shut. As Isaiah sped away, James heard several more shots behind them.
James went to the hospital, where doctors removed the bullets from his head and his knee and stitched up the graze wound on his cheek. Sanchez and Barela drove to an area behind a carwash, where Barela buried the fired cartridge casings.
Several months after the shooting, police searched this area using metal detectors and shovels, but they were unable to find the cartridge casings. There was a lot of debris dumped in the area.
Meanwhile, a neighbor provided police with surveillance video that captured the vehicles, the altercation, and the shooting. Later that same morning, police located the Ford at a local motel. They recognized the white hatchback style, the missing rear window, and the bumper sticker residue.
The desk clerk at the motel indicated the Ford belonged to the occupants of a room registered to Sanchez. Police attempted to enter the room, but there was a small refrigerator blocking the door. When police eventually entered, they saw Barela running toward the bathroom, leaving a revolver behind on the bed. Despite an attempt to escape through the bathroom window, police arrested Barela. Minutes later, Sanchez returned to the motel and police arrested him as well.
James and Isaiah did not know Sanchez and Barela. However, a local detective testified that Sanchez and Barela were members of the Surenos gang, and the shooting occurred in Surenos territory. The detective opined that Sanchez's question for Isaiah -"Where are you from?"-was "basically a challenge or an interrogation with no right answer." Isaiah "was perceived as a[n] unknown or a known threat and potentially could be a rival of [Sanchez]."
The People charged Sanchez with two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a); counts 1 & 2); one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 4 &5). As to counts 1 and 2, the People alleged that the attempted murders were willful, deliberate, and premeditated (§ 664, subd. (a)) and that Sanchez personally and intentionally discharged a firearm causing great bodily injury to James (§ 12022.53, subds. (b)-(d)). As to counts 4 and 5, the People alleged that Sanchez personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury upon James (§ 12022.7, subd. (a)). The People further alleged that Sanchez suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Further undesignated statutory references are to the Penal Code.
The People initially charged Barela as a codefendant in this case, but he passed away during pendency of the criminal proceedings.
A jury convicted Sanchez of both counts of attempted murder and found true the premeditation allegation. At the same time, it acquitted him of unlawful possession of a firearm and found not true the firearm allegations. The jury could not reach a verdict on the assault charges, and the court declared a mistrial as to those counts. Sanchez admitted the prior strike conviction. He was ultimately sentenced to 28 years to life in prison, comprised of two consecutive terms of 7 years to life for the attempted premeditated murders, each doubled to 14 years to life under the Three Strikes law.
DISCUSSION
A. Under the instructions given, the jury necessarily found that Sanchez personally intended to kill James and Isaiah.
Since the jury acquitted him of unlawful possession of a firearm and found not true the firearm allegations, Sanchez asserts it must have convicted him under a theory of direct aiding and abetting. The Attorney General does not argue otherwise. From this premise, Sanchez contends that the trial court incorrectly instructed the jury on aiding and abetting attempted murder. He argues the jury instructions allowed the jury to convict him without finding he personally possessed malice, in violation of his Fifth and Sixth Amendment rights to due process, a fair trial, and a jury finding on every element of the offenses charged.
Generally, "every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).)
The guilt of an aider and abettor "is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (McCoy, supra, 25 Cal.4th at p. 1117.) When the offense charged is a specific intent crime, the aider and abettor must share the specific intent of the direct perpetrator. (Id. at p. 1118.) This occurs when the aider and abettor (1) knows the direct perpetrator's criminal purpose and (2) aids or encourages the direct perpetrator with the intent or purpose of facilitating the commission of the crime. (Ibid.) Therefore, when attempted murder is charged, the aider and abettor must know and share the intent to kill. (Ibid.)
The trial court has a sua sponte duty to instruct the jury on the essential elements of the offenses charged. (People v. Merritt (2017) 2 Cal.5th 819, 824.) The failure to do so is "very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) All criminal defendants have the right to 'a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" (Merritt, at p. 824.)
On appeal, we independently review claims of instructional error, including the legal adequacy of jury instructions. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In conducting this review,"' "we must consider the instructions as a whole" '" and"' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions" '" that were given. (Ibid.)" 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (Ibid.)
With these principles in mind, we conclude the trial court correctly instructed the jury that, in order to convict Sanchez of attempted murder under a theory of direct aiding and abetting, the jury needed to find that he personally intended to kill James and Isaiah. The court first primed the jury by explaining that attempted murder and aiding and abetting each required a specific intent or mental state. It clarified that the required specific intent or mental state was set forth in the instructions for each crime or allegation. (CALCRIM No. 252.)
The trial court then instructed the jury on the principles of direct aiding and abetting. These instructions provided, in relevant part:
A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.
To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
1. The perpetrator committed the crime;
2. The defendant knew that the perpetrator intended to commit the crime;
3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
AND
4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
(CALCRIM Nos. 400 &401.)
In turn, the trial court instructed the jury on the elements of attempted murder. The jury was told, in relevant part:
To prove that the defendant is guilty of attempted murder, the People must prove that:
1. The defendant took at least one direct but ineffective step toward killing another person; AND
2. The defendant intended to kill that person.
(CALCRIM No. 600.)
Considering these instructions together, it is clear the trial court instructed the jury that, to convict Sanchez as an aider and abettor, the jury needed to find he shared Barela's intent to kill. The jury was informed that attempted murder required a specific intent, which was intent to kill. (CALCRIM Nos. 252 &600.) The court instructed that aiding and abetting required a specific mental state as well, which here meant (1) knowledge that the perpetrator (Barela) intended to commit the crime and (2) intent to aid and abet the perpetrator in committing the crime. (CALCRIM Nos. 252 &401.) In alternative language, the court reiterated that an aider and abettor must (1) know the perpetrator's unlawful purpose and (2) specifically intend to aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime. (CALCRIM No. 401.) This effectively told the jury that an aider and abettor must know and share the specific intent of the direct perpetrator. (McCoy, supra, 25 Cal.4th at p. 1118 [accomplice shares the specific intent of the perpetrator when he or she"' "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime"' "].)
Sanchez maintains the jury "could have convicted [him] on the basis that he intended to aid and abet Barela in the commission of an assault with a firearm, which is far short of proof that [he] intended that [Barela] kill them." To the contrary, this is not possible based on the instructions. To the extent the jury believed Barela was the direct perpetrator and Sanchez was the aider and abettor, it must have found that Barela took at least one direct but ineffective step toward killing James and Isaiah, and that he intended to kill them. The jury also must have determined that Sanchez knew Barela's unlawful purpose-i.e., to kill James and Isaiah-and that Sanchez intended to aid or encourage Barela in trying to kill them. In other words, under the instructions given, the jury necessarily found that Sanchez knew and shared Barela's intent to kill. Absent some circumstance negating malice-not present in this case-one cannot knowingly and intentionally help another attempt to kill without acting with express malice. (See McCoy, supra, 25 Cal.4th at p. 1123; Lee, supra, 31 Cal.4th at p. 624 ["to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing" which means the accomplice "must intend to kill"].)
Sanchez relies on a line of cases discussing the incongruity between the law of aiding and abetting an implied malice murder and the standard jury instructions on that theory. Sanchez's reliance on these cases is misplaced because his case does not involve implied malice murder.
For an implied malice murder, the direct perpetrator must perform a life endangering act, with knowledge that their conduct is life endangering and with conscious disregard for human life. (People v. Reyes (2023) 14 Cal.5th 981, 988, 991 (Reyes).) The aider and abettor" 'must, by words or conduct, aid the commission of the life endangering act, not the result of that act.'" (Id. at p. 991, italics omitted.) The mental state," 'which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (Ibid., italics omitted.)
Recent cases have recognized that the standard aiding and abetting instructions are not appropriately tailored for implied malice murder. (People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell); People v. Langi (2022) 73 Cal.App.5th 972, 982 (Langi).) As described above, the standard aiding and abetting instructions require that the accomplice (1) know the direct perpetrator intends to commit the crime and (2) intend to aid and abet the perpetrator in committing the crime. (CALCRIM No. 401.) In other words, the aider and abettor must (1) know the perpetrator's unlawful purpose and (2) intend to aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime. (CALCRIM No. 401; see also CALJIC No. 3.01.)
But in the context of implied malice, the direct perpetrator need not intend to kill. The perpetrator must know their conduct endangers human life and consciously disregard human life, but their intent or purpose may be "only to strike or to injure, or conceivably only to embarrass, the victim." (Langi, supra, 73 Cal.App.5th at p. 982.) Accordingly, in an implied malice case, knowing and sharing the perpetrator's intent or purpose may only amount to an intent to strike, injure, or embarrass. Since this is insufficient to establish malice, the aiding and abetting instruction must be modified in implied malice cases to expressly require the jury to find that the accomplice personally harbored" 'knowledge that the perpetrator intended to commit the [life-endangering] act, intent to aid the perpetrator in the commission of the act, and knowledge that the act is dangerous to human life, and . . . conscious disregard for human life.'" (Id. at p. 983, quoting Powell, supra, 63 Cal.App.5th at p. 713; accord, Reyes, supra, 14 Cal.5th at pp. 991-992.)
This same incongruity does not exist in an attempted murder case like this one. (See People v. Coley (2022) 77 Cal.App.5th 539, 547 [Langi does not apply to cases involving express malice].) Here, the trial court instructed the jury that the direct perpetrator of an attempted murder must intend to kill. (CALCRIM No. 600.) The court further instructed that the aider and abettor of an attempted murder must know and share this intent to kill. (CALCRIM No. 401; McCoy, supra, 25 Cal.4th at p. 1118.) Therefore, under the instructions given in this case, the jury necessarily found that Sanchez personally intended to kill, which equates to express malice. (People v. Moon (2005) 37 Cal.4th 1, 29.) Contrary to Sanchez's suggestion, it is not necessary or legally appropriate to graft the implied malice elements onto this attempted murder case. (People v. Bland (2002) 28 Cal.4th 313, 327 ["implied malice cannot support a conviction of an attempt to commit murder"].)
Sanchez briefly cites People v. Maldonado (2023) 87 Cal.App.5th 1257. That case involved aiding and abetting a murder by lying in wait. In such cases, the perpetrator's intent or purpose need not be to kill. (Id. at pp. 1262-1263, 1266.) Rather, it may be "only to injure or intimidate the victim in a surprise attack." (Id. at p. 1266.) Since the perpetrator in an attempted murder case must intend to kill, Maldonado is inapplicable here.
Upon considering the relevant jury instructions together, we see no errors or ambiguities. The trial court correctly instructed the jury on the mental state required for aiding and abetting attempted murder. For the same reason, the court did not violate Sanchez's constitutional rights.
B. There is substantial evidence that Sanchez aided and abetted the attempted murders of James and Isaiah.
Along the same lines, Sanchez next contends there is insufficient evidence that he aided and abetted the attempted murders of James and Isaiah. We disagree. The jury's verdict is supported by the evidence showing that Sanchez instigated the attack upon James and Isaiah and, after Barela fired several close-range shots, chased James around the Honda and worked with Barela to keep the passenger door open.
Again, "[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (Lee, supra, 31 Cal.4th at p. 623.) To be guilty of attempted murder as an aider and abettor, the accomplice must aid or encourage the direct perpetrator through acts, words, or gestures. (Ibid.) In addition, the accomplice must give such aid or encouragement "with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing-which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (Id. at p. 624, citing McCoy, supra, 25 Cal.4th at p. 1118.)
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053, internal citations omitted.) Reversal is unwarranted "unless it appears 'that upon no hypothesis whatsoever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, the record supports the jury finding that Sanchez aided and abetted Barela in attempting to murder James and Isaiah. Sanchez initiated the attack upon the two men. Sanchez was driving around until he spotted the Honda with its distinctive sticker. Isaiah was sitting in the driver's seat with the windows rolled down. Sanchez said something like," 'Oh, there's that foo,'" and stopped the Ford beside the Honda. He promptly exited the Ford and asked Isaiah, "Where are you from?" The detective explained this was "a challenge or an interrogation with no right answer" that indicated "an act of violence, such as a shooting" or "homicide" was imminent. Indeed, Sanchez immediately tried to force Isaiah out of the Honda. From this, the jury could reasonably infer that Sanchez recognized the Honda and/or Isaiah and initiated a violent attack for some gang-related reason.
At this point, it may not have been clear that Sanchez intended to kill. However, that intent manifested itself moments later. When Barela exited the Ford and began shooting, Sanchez did not act surprised. He did not tell Barela to stop shooting or otherwise attempt to end the attack. Instead, he continued the attack by chasing James to the passenger side of the Honda. Barela continued shooting as he rounded the front of the Honda and joined Sanchez at the passenger side. Bullets pierced the center of the windshield and the front passenger window. James was shot in his knee and his forehead, and another bullet grazed his cheek. As the prosecutor put it, James and Isaiah were "[s]itting ducks" in the small, confined space of the Honda. Any one of Barela's shots could have killed them.
Critically, even after Barela fired several shots at James and Isaiah, Sanchez worked with Barela to keep the passenger door open while James tried to pull it shut. In doing so, Sanchez actively continued the lethal attack upon James and Isaiah. Continuing the attack even though James was shot multiple times, including in his head, reasonably supports a finding that Sanchez intended to kill James and Isaiah, not merely to injure or intimidate them. Sanchez emphasizes the lack of evidence that he asked Barela to shoot or knew he would do so. Regardless, once Barela fired multiple shots at James and Isaiah at close range, his intent to kill was obvious, such that the jury could infer Sanchez realized Barela's intent to kill. (See People v. White (2014) 230 Cal.App.4th 305, 319 ["the requisite knowledge may be established by circumstantial evidence"].) When Sanchez encouraged further shooting by chasing James and helping Barela keep the door open, Sanchez's shared intent to kill became apparent as well. (See ibid. ["the existence of the requisite intent may be shown by 'an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the [perpetrator] aided' "].)
Although James did not know exactly when he was shot in his forehead, the jury could logically infer it happened when Barela shot at the windshield. This means the jury could further infer that James had an obvious head wound as Sanchez pulled on the door.
Moreover, after the shooting, Sanchez did not abandon Barela. Rather, according to one witness, Sanchez accompanied Barela to bury the cartridge casings. Then they retired to the same motel. In conjunction with the brotherly relationship between Sanchez and Barela, the jury could have considered this to be further circumstantial evidence of a common purpose. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1054 [factors relevant to aiding and abetting include "presence at the scene of the crime, companionship, and conduct before and after the offense"].)
Sanchez relies on Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, but that case is readily distinguishable. There, members of the defendant's gang shot the victim, then ran over the victim with a car. (Id. at pp. 13381339.) The jury convicted the defendant of second degree murder, but specifically found he did not shoot or drive the car. (Id. at p. 1339.) The Ninth Circuit opined the evidence merely showed the defendant was present at the scene of the shooting, present in the car, and a member of the same gang, which is insufficient for aiding and abetting. (Id. at p. 1342.) Here, in contrast, Sanchez took an active role in the attack. He stopped the Ford beside the Honda, confronted Isaiah, chased James, and kept James from closing the door after Barela fired multiple shots.
Considering the record in the light most favorable to the verdict, we see ample evidence from which the jury could have found beyond a reasonable doubt that Sanchez knew and shared Barela's intent to kill James and Isaiah and actively perpetuated the lethal attack upon them.
C. The premeditation penalty does not constitute cruel and/or unusual punishment on the record in this case.
Sanchez next contends his sentence constitutes cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution, and article I, section 17 of the California Constitution. He focuses on the seven years-to-life components of his sentence. Sanchez forfeited this claim by failing to raise it below. In any event, he fails to persuade us that his sentence is grossly disproportionate to his offenses.
Upon finding Sanchez guilty of the attempted murders of James and Isaiah, the jury then considered the allegation that the attempted murders were "done willfully, and with deliberation and premeditation." The jury instructions explained that each attempted murder "was done willfully and with deliberation and premeditation if either the defendant or Mark Barela or both of them acted with that state of mind." (CALCRIM No. 601.) The jury found true that each "attempted murder was committed willfully, deliberately and with premeditation."
Because of this finding, Sanchez was subject to an elevated sentencing scheme reserved for attempted murder committed with premeditation and deliberation, as opposed to without. Under section 664, subdivision (a) (664(a)), the sentence for attempted murder is five, seven, or nine years in state prison. However, "if the crime attempted is willful, deliberate, and premeditated murder," the sentence is life imprisonment with the possibility of parole. (Ibid.) This provision "does not create a greater degree of attempted murder but, rather, constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder." (People v. Bright (1996) 12 Cal.4th 652, 656-657 (Bright).)
When a defendant is sentenced to life imprisonment with the possibility of parole, the default minimum period of confinement is seven years. (§ 3046; People v. Jefferson (1999) 21 Cal.4th 86, 90.)
Section 664(a) specifies that the elevated penalty "shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact." Twenty years ago, in Lee, supra, 31 Cal.4th 613, a majority of the California Supreme Court interpreted section 664(a) as requiring "only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor." (Lee, at p. 616, italics added.)
Sanchez argues, because the jury did not necessarily find that he personally premeditated and deliberated, the elevated penalty constitutes cruel and/or unusual punishment. On the facts of this case, we do not consider the sentence imposed to be unconstitutionally egregious.
1. The state and federal constitutions prohibit grossly disproportionate punishments.
Article I, section 17 of the California Constitution prohibits cruel or unusual punishment. A punishment is cruel or unusual if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) We use three "techniques" to make this determination: first, examine the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; second, compare the challenged penalty with the punishments for more serious offenses in California; and third, compare the challenged penalty with the punishments prescribed for the same offense in other states. (Id. at pp. 425427.) Disproportionality need not be established in all three areas. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38 (Dillon).) We may base our decision on the first technique alone. (People v. Johnson (2010) 183 Cal.App.4th 253, 297, citing Dillon, at pp. 479, 482-488.)
The Eighth Amendment forbids cruel and unusual punishment. It "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (lead opn. of O'Connor, J.).) That narrow principle prohibits extreme sentences that are" 'grossly disproportionate to the severity of the crime.'" (Id. at p. 21.) In a noncapital case, successful proportionality challenges are" 'exceedingly rare.'" (Ibid.) Similar to the California framework, three factors may be relevant to evaluate proportionality:" '(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.'" (Id. at p. 22.) However, the latter two analyses are necessary "only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." (Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy, J.).)
Because the federal analytical framework closely resembles the state's framework, and because the Eighth Amendment offers no greater protection than article I, section 17 (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510), a punishment that satisfies the state standard necessarily satisfies the federal standard. The touchstone for both standards is gross disproportionality. (People v. Baker (2018) 20 Cal.App.5th 711, 733 (Baker).)
Whether a sentence is cruel and/or unusual is a question of law that we review de novo, considering the underlying disputed facts in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
2. Sanchez forfeited his claim of cruel and/or unusual punishment.
As an initial matter, the People fairly point out that Sanchez did not raise any cruel and/or unusual punishment claim in the trial court. At sentencing, the defense asked the trial court to dismiss the prior strike as well as "any and all enhancements" under section 1385 but did not argue that imposing the premeditation penalty was cruel and/or unusual. Since this is a fact-specific claim, failing to raise the claim in the trial court forfeits it on appeal. (Baker, supra, 20 Cal.App.5th at p. 720.) However, we have discretion to address the claim on the merits (see ibid.) and we choose to exercise our discretion in this case to forestall any claim of ineffective assistance of counsel.
3. Comparing the sentence with the offense and/or offender
In comparing the sentence with the offense, we consider the offense in the abstract - i.e., as defined by the Legislature - as well as "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.) And in comparing the sentence with the offender, we focus on "the particular person before the court, and ask[ ] 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.) Even if a punishment is proportionate in the abstract, it may be unconstitutional if it is nevertheless disproportionate to the defendant's individual culpability. (Id. at p. 480.)
Here, Sanchez argues the premeditation penalty is disproportionate because the jury did not necessarily find that he personally premeditated and deliberated. In the abstract, the California Supreme Court rejected a similar argument in Lee, supra, 31 Cal.4th 613. As mentioned above, in Lee the majority held that section 664(a) only requires "that the murder attempted was willful, deliberate, and premeditated," not that "an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor." (Lee, at p. 616, italics added.)
In so holding, the majority rejected an argument that defendants who aid and abet an attempted murder, but do not personally premeditate and deliberate, were insufficiently blameworthy to deserve an indeterminate sentence. (Lee, supra, 31 Cal.4th p. 623.) The majority deemed the argument unpersuasive because "it ignores the very substantial blameworthiness of even this sort of attempted murderer." (Ibid.) A direct aider and abettor to attempted murder must intend to kill. (Id. at p. 624.) And, the majority opined, the accomplice must act "with a mental state at least approaching deliberation and premeditation-concepts that entail '" 'careful thought and weighing of considerations'"' and '" 'preexisting reflection'"' [citation], as opposed to 'mere unconsidered or rash impulse hastily executed' [citation]- because he or she necessarily acts with knowledge of the direct perpetrator's intent to kill and with a purpose of facilitating the direct perpetrator's accomplishment of the intended killing." (Ibid.) Punishing such accomplices with life imprisonment, the majority concluded, coincided with "664(a)'s purpose of making the punishment proportionate to the crime." (Ibid.)
Moreover, Sanchez fails to persuade that the premeditation penalty is disproportionate to his individual culpability in this case. (See People v. Wingo (1975) 14 Cal.3d 169, 174 [a defendant must overcome "a considerable burden" in challenging a penalty as cruel or unusual].) As in his insufficient evidence claim, Sanchez emphasizes there is no evidence showing he knew that Barela was armed or that Barela would join the fray shooting. He asserts, at most, he is guilty of misdemeanor assault. In fact, viewed in the light most favorable to the judgment, the record shows that Sanchez is much more culpable.
As we explained in detail above, the evidence showed that Sanchez- not Barela-stopped the Ford when he spotted the Honda and said something like," 'Oh, there's that foo.'" He promptly got out of the Ford and tried forcing Isaiah out of the Honda. In other words, Sanchez made the decision to stop driving, get out of his vehicle, and target Isaiah and/or James for a violent attack. (Cf. People v. Koontz (2002) 27 Cal.4th 1041, 1080 [" 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance"].) And when Barela started shooting directly at James and Isaiah, hitting the front windshield and the passenger window, and striking James multiple times, Sanchez did not back away in shock. Rather, he continued the lethal attack by chasing James and helping Barela hold the passenger door open, preventing them from leaving. This reflects an intent to kill. It was mere luck that James survived, and that Isaiah was not shot, though he remained scared and traumatized by the time of trial. He could hardly look at Sanchez in the courtroom.
In comparing the punishment with the offense and/or offender, we give" 'particular regard to the degree of danger both present to society.'" (Dillon, supra, 34 Cal.3d at p. 479.) Here, Sanchez targeted James and Isaiah while they ran a mundane errand in a residential neighborhood. Beyond some gang-related remarks, the record is not clear why Sanchez targeted them. James and Isaiah did not know Sanchez and Barela. As the trial court observed at sentencing, "[t]his shows that any member of the public can be a potential victim simply by being at the wrong place at the wrong time." And Sanchez committed this attack a few months after being placed on probation for obstructing or resisting an officer, which was the most recent offense in a steady criminal history. On this record, the court's concern for the safety of the public and the victims was more than justified.
Considering the totality of the circumstances surrounding this offense, we do not think the premeditation penalty is shockingly disproportionate.
4. Comparing the sentence with other offenses
Sanchez does not directly compare the penalty for attempted premeditated murder to penalties for more serious offenses in this state, or to similar offenses in other states. However, citing People v. Avila (2020) 57 Cal.App.5th 1134 (Avila), he suggests that section 664(a), as interpreted by Lee, is inconsistent with recent trends in the law.
In Avila, supra, 57 Cal.App.5th 1134 our colleagues in the Second Appellate District, Division Three held that a Three Strikes sentence was cruel or unusual under the California Constitution. (Id. at pp. 1138-1139.) In that case, the defendant demanded money from two men who were selling fruit near a freeway off-ramp. (Id. at p. 1139.) When the proprietors did not give the defendant any money, he stomped on their bags of oranges. (Ibid.) A jury convicted the defendant of attempted robbery and attempted extortion. (Ibid.) He admitted he suffered two prior strike convictions. (Id. at p. 1140.) The trial court declined to dismiss the strikes, and sentenced the defendant to 25 years to life, plus 14 years. (Id. at pp. 1139-1140.)
The Avila court held this sentence-which, given the defendant's age, meant he would likely die in prison-was disproportionate to the offense and offender. (Avila, supra, 57 Cal.App.5th at pp. 1144, 1149.) As the court reasoned, the current offenses were minor, unsophisticated, and nonviolent. (Id. at p. 1146.) The defendant did not physically harm or threaten the victims; he simply squashed their oranges. (Id. at pp. 1146-147.) Moreover, he had committed the strike offenses nearly 30 years prior, in his youth. In the intervening years, he committed a handful of nonstrike offenses, many of which were related to his struggles with drug use. (Id. at pp. 1143-1144, 1148-1149.) The Avila court concluded that "[c]rushing oranges, even for the purpose of trying to steal or to extort money, is not constitutionally worthy of the sentence imposed where, as here, the defendant's criminal history on close examination cannot bear its share of such a sentence." (Id. at p. 1151.)
The defendant in Avila struggled to compare his sentence to other offenses in the state, in the abstract, or to recidivist schemes in other states. (Avila, supra, 57 Cal.App.5th at p. 1149.) However, to the extent it was relevant to the analysis, the Avila court observed that our state "legislators and courts are reconsidering the length of sentences in different contexts to decrease their severity." (Id. at p. 1151.) The court highlighted the changes to the Three Strikes law; the discretion to dismiss sentence enhancements; the treatment of juvenile offenders; and the mental state requirements for homicide. (Id. at pp. 1150-1151.) These changes, the court opined, "suggest[ed] disproportionality" in the defendant's sentence. (Id. at p. 1151.)
Taking a similar approach, Sanchez argues that in "this era of legislative reform," section 664(a) "stands out like a dinosaur from a bygone era." Specifically, he references Senate Bill No. 1437, which the Legislature enacted to make sure that people convicted of homicide offenses were sentenced according to their own level of individual culpability. (Stats. 2018, ch. 1015, § 1, eff. Jan. 1, 2019.) To effectuate that goal, the Legislature amended section 188 to provide that, outside the felony-murder context, a defendant must personally possess malice aforethought in order to be convicted of murder. (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) "Malice shall not be imputed to a person based solely on his or her participation in a crime." (Ibid.) This amendment made it unlawful for a defendant to be convicted of murder under the natural and probable consequences doctrine. (Reyes, supra, 14 Cal.5th at p. 986.) Sanchez also mentions Senate Bill No. 775, which allowed people convicted of attempted murder under the natural and probable consequences doctrine to seek resentencing. (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
Perhaps section 664(a) is inconsistent with these changes. But the Legislature has not amended section 664, and the California Supreme Court has not overruled Lee. The premeditation penalty is distinct from the natural and probable consequences theory of murder liability. (People v. Chiu (2014) 59 Cal.4th 155, 163.) Sanchez's case does not involve the natural and probable consequences doctrine. (See People v. Rodriguez (2022) 75 Cal.App.5th 816, 824 [Senate Bill No. 775 did not alter Lee, which was based on direct aiding and abetting].) Until the Legislature or the California Supreme Court changes the law, we are bound to follow Lee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
To the extent Sanchez relies on Avila, supra, 57 Cal.App.5th 1134, we find that case materially distinguishable. While Avila found support for its decision in the general trend toward reducing criminal sentences, the bottom line was that life in prison for crushing oranges shocked the conscious and offended fundamental notions of human dignity. (Id. at pp. 1151-1152.) But here, Sanchez did not receive life in prison for destroying fruit. He initiated and perpetuated a deadly attack upon two unsuspecting men, one of whom was shot in the head. On the record of this particular case, we do not find the premeditation penalty so shocking and offensive under the state constitution. For the same reasons, we do not find the penalty grossly disproportionate under the federal constitution. (Cf. Baker, supra, 20 Cal.App.5th at p. 733 [rejecting state and federal proportionality claims for the same reasons].)
D. The trial court did not fail to recognize or exercise its discretion to dismiss the premeditation penalty, because it is not a sentence enhancement within the meaning of Penal Code section 1385, subdivision (c).
Sanchez lastly argues the trial court failed to recognize or exercise its discretion to strike the premeditation penalty under section 1385, subdivision (c). He asserts "[t]here was an obvious mitigation factor that called for dismissal of the vicarious premeditation and deliberation findings" -namely, that imposing the premeditation penalty could result in a sentence exceeding 20 years. He further suggests there were mitigating factors arising from the shooting itself that warranted dismissal of the premeditation penalty. In response, the Attorney General argues that subdivision (c) does not apply to the premeditation penalty because it is not a sentence enhancement. We agree with the Attorney General.
Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to specify factors that a trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (People v. Sek (2022) 74 Cal.App.5th 657, 674; see Stats. 2021, ch. 721, § 1.) Specifically, section 1385, subdivision (c)(1) now provides that "the court shall dismiss an enhancement if it is in the furtherance of justice to do so," and subdivision (c)(2) states that "[i]n exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence" of nine listed "mitigating circumstances," any one of which "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (Italics added.) As Sanchez mentions, the list of mitigating circumstances includes: "The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (Id., subd. (c)(2)(C), italics added.)
The appellate courts have interpreted the relatively new subdivision (c) of section 1385 as applying to enhancements, but not alternative penalties. (See, e.g., People v. Burke (2023) 89 Cal.App.5th 237, 243-244 (Burke) [Three Strikes law]; People v. Dain (2024) 99 Cal.App.5th 399, 409-411 [same]; People v. Olay (2023) 98 Cal.App.5th 60, 64-69 [same]; People v. McDowell (2024) 99 Cal.App.5th 1147, 1154-1156 [alternative penalty for human trafficking of a minor].) "The term 'enhancement' has a well-established technical meaning in California law." (Burke, at p. 243.) An" 'enhancement is "an additional term of imprisonment added to the base term." '" (Ibid.; accord, Cal. Rules of Court, rule 4.405(5).) We agree that section 1385, subdivision (c) only applies to sentence enhancements.
As discussed above, the California Supreme Court has long recognized that section 664(a) creates "a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder." (Bright, supra, 12 Cal.4th at pp. 656-657.) The Bright majority specifically explained that, because section 664(a) prescribes a different base term for attempted premeditated murder, as opposed to an additional term added to an existing base term, section 664(a) is not a sentence enhancement. (Bright, at p. 656, fn. 2; see also Cal. Rules of Court, rule 4.405(2) [a" '[b]ase term'" is "the determinate or indeterminate sentence imposed for the commission of a crime, not including any enhancements that carry an additional term of imprisonment"].) We presume the Legislature was aware of this distinction when it passed Senate Bill No. 81. (See People v. Blakeley (2000) 23 Cal.4th 82, 89 ["the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction" when amending a statute].)
Accordingly, we conclude that because the premeditation penalty is not a sentence enhancement and does not come within the provisions of amended section 1385, subdivision (c), the trial court did not err in sentencing Sanchez.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P.J., KELETY, J.