Opinion
D059455
06-14-2012
THE PEOPLE, Plaintiff and Respondent, v. CHARLENE ZAMORA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCS239800)
APPEAL from a judgment of the Superior Court of San Diego County, Alvin E. Green, Judge. Affirmed.
A jury convicted Charlene Zamora of assault with a firearm (Pen. Code, 245, subd. (a)(2); count 2); robbery (§ 211; count 3); carrying a loaded firearm with intent to commit a felony (§ 12023, subd. (a); count 5); and receiving stolen property (§ 496, subd. (a); count 6). The jury also found true allegations of personal infliction of great bodily injury (§ 12022.7, subd. (a)); personal use of a firearm (§ 12022.5, subd. (a)); and personally discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). In addition the jury found true allegations that Zamora committed the robbery while acting in concert with two or more persons and that the offense was committed in an inhabited dwelling.
All further statutory references are to the Penal Code unless otherwise specified.
The trial court found true an allegation that Zamora committed the current offenses while on bail. (§ 12022.1, subd. (b).)
At the time of sentencing, the trial court denied Zamora's request that the court find that the sentence required by section 12022.53, subdivision (d) constituted cruel and unusual punishment. Zamora was sentenced to an indeterminate term of 33 years to life.
Zamora's adult codefendant, Ebonie Simon, pleaded guilty to second degree robbery before trial and was granted probation, subject to a one-year jail term. The juvenile codefendant, N.M., who was 16 at the time of the offense, was treated as a juvenile and was in custody at a camp facility at the time of trial.
Zamora appeals contending the sentence imposed is grossly disproportionate under the Eighth Amendment and is cruel and unusual under the California Constitution. We will find that the sentence imposed on 22-year-old Zamora, while harsh, was not unconstitutional and will affirm the judgment.
STATEMENT OF FACTS
Zamora does not challenge the admissibility or the sufficiency of the evidence to support her convictions. Accordingly, we will set forth a limited statement of facts in order to provide context for the discussion which follows.
On the evening of June 22, 2010, Zamora, Ebonie Simon and N.M. met to discuss Zamora's plan to recover money that had been taken from Zamora by her former crime partner Alvin Jefferson.
The trio drove in Zamora's car to the motel where Jefferson and Zamora had been staying. After the group arrived they encountered Jefferson outside his motel room. Ultimately the group and Jefferson entered the motel room. A few moments later, Simon pulled out a wooden stick she had brought with her, and N.M. got up to rush Jefferson.
As N.M. got up, Jefferson ran into the bathroom and attempted to close the door. N.M. and Simon tried to force the door open. While the struggle continued, N.M. yelled out, "Where is the home girl's money at? I need that money. I need it now." Jefferson denied knowledge of any money. Jefferson apparently called for help on a cell phone while he was in the bathroom. At that point, Zamora fired a single shot into the bathroom door.
When the bathroom door was pushed open they found Jefferson bleeding and holding a towel to his arm. Jefferson threw $140 on the floor. N.M. grabbed the money and the group fled. After they stopped, Zamora gave Simon and N.M. each $20 and Zamora kept the rest of the money.
Jefferson suffered a wound to his left arm, which broke the bone in the arm. The bullet also grazed his rib cage. A nine-millimeter shell casing was found on the floor of the room.
Jefferson was subpoenaed to the trial but failed to appear. He had told police he was not going to cooperate.
A subsequent search produced three nine-millimeter bullets from Zamora's purse, found in her car. The nine-millimeter pistol used in this case was found in Zamora's suitcase in the room in which she had been staying. Later investigation established the pistol had been stolen some months before the crime in this case.
Defense
Zamora denied shooting Jefferson. She and Jefferson were friends and had rented the motel room together. He had money of hers he refused to give to her .
Zamora acknowledged the group went to the motel to get her money from Jefferson. She testified that she did not see a gun in the motel room and did not hear a gunshot before she left the room. Zamora said Jefferson had not been injured by the time she left the motel room. It was Simon that tucked the gun under the seat of the car after they left the motel.
DISCUSSION
At the time of sentencing Zamora raised the issue of whether the sentence required by section 12022.53, subdivision (d) was cruel and unusual in her case. The claim made in the trial court, and repeated here is that, given her age at the time of the offense (22 years old), her lack of a serious criminal history and the great disparity in the required sentence and those received by the codefendants, makes the imposition of a 33-year-to-life sentence unconstitutional under the state and federal constitutions. The trial court conducted a very extensive review of Zamora's claim and the relevant case law applicable to it. At the conclusion of the hearing the trial court concluded the proposed sentence was appropriate given Zamora's culpability and the court distinguished Zamora's situation from those of the teenagers who were the defendants in many of the cases cited by Zamora. Given the in-depth analysis conducted by the court, including its evaluation of Zamora's individual culpability, we include some of the court's comments here to aid in the evaluation of the trial court's decision.
All too often we review complex sentencing issues such as those in the present case with little or no explanation by trial court as to how the court reached its conclusions. Here we are fortunate to have a detailed, thoughtful analysis of the issue and the trial court's reasoning. It has been of great assistance to this court in evaluating the court's decision.
"Looking at Ms. Zamora, the nature of the offense, and her participation as an offender, clearly Ms. Zamora was the instigator of this crime, she is the one who went to get her, quote, money back, the $200, she is the one who went out to round up the two others to help her get the money back. One of her cohorts in the crime was a 16-year-old juvenile. Even though Ms. Zamora knew the victim was unarmed she armed herself with a nine-millimeter handgun. Her accomplice was armed with a stick or large piece of wood. Ms. Zamora told the accomplices she need their help to get her money back [from] the victim -- that the victim had taken from her.
"The plan was to rush the victim, overpower him, and get the money back. The money, it turns out, came from proceeds from a fraudulent traveler's check cashing scheme involving only Zamora and the victim. Once all of the players were inside the hotel room,
all did not go as planned. Once rushed by the two accomplices, the victim retreated to the bathroom and was sequestered behind a partially closed bathroom door. A stalemate ensued with the victim pushing on one side of the door in an attempt to close it and the two cohorts pushing from the other side to push the door open.
"Ms. Zamora, in an attempt to end the stalemate and perhaps because everyone was making too much noise, fired one shot from her handgun blindly through the door in the location of the victim. She then left the hotel room with no concern for any injuries inflicted or even checking on the well-being of the victim. The shooting of the victim worked because shortly after the victim was shot he threw the money out the partially opened bathroom door. Ms. Zamora thereafter split the proceeds of the endeavor with her cohorts and then hid the gun.
"There is nothing in those facts that lessens her degree of involvement in the crime. Nothing suggests the punishment is disproportional for the crime or degree of involvement in the crime. The punishment is not so disproportionate to the offense committed as to shock the moral conscience of the community or shock the sense of justice to the Court. And that's from Henry Lynch, 8 Cal.3d 410. So the crime itself doesn't mitigate in terms of finding this is an unusual case.
"In looking at Ms. Zamora itself, she does argue that her rather minimal past criminal record weighs in favor of a finding of cruel and unusual punishment. As stated in People of the State of California v. Gonzalez, 87 Cal.App.4th 1, it would be a factor for the Court to consider and it does, in terms of weighing against and for her favor, it is a factor in her favor. She has the minimal criminal record but the circumstances of her participating in the shooting establishes her individual culpability.
"While her age and criminal history are factors in her favor, they are substantially outweighed by the seriousness of the crime and circumstances surrounding its commission. The lack of a significant prior criminal history is not determinative in a cruel and unusual punishment analysis, this is People v. Martinez[, supra,] 76 Cal.App.4th [489] at page 497."
The court goes on to say:
"As stated in People v. Martinez where the Court stated the age of someone who was 23, the appellant was not a minor and there was no evidence that he unusually immature, emotionally or intellectually, that is People v. Mendez. Ms. Zamora is 22. There's no evidence that she is unusually immature emotionally or intellectually or suffers from a harsh upbringing or environment. On the contrary, actually, found in her psychological report presented on her behalf presents what appears to be, at least until the age of 15, a normal family and upbringing. In fact, her family are here now and have been throughout the trial. She was a model child until the age of 15. She has loving parents who, to this day, remain loving, caring, and involved."
The court continued with an analysis of Zamora's psychological makeup, her background, and culpability. At the end of the extensive analysis the trial court rejected Zamora's contentions.
In cases where a defendant has personally discharged a firearm and has caused great bodily injury, the Legislature requires courts to impose a 25-year-to-life enhancement for the use of the firearm. (§ 12022.53, subd. (d).) The greater sanction was enacted in order to protect citizens and to deter felons from intentionally discharging firearms during the commission of crimes. (People v. Martinez, supra, 76 Cal.App.4th 489, 493.) In creating this enhancement, the Legislature specifically declared that courts do not have the power under section 1385 to strike or stay the punishment for the enhancement.
Zamora recognizes the statutory requirement for the 25-year-to-life term for the enhancement. Similarly, she does not challenge the trial court's calculation of the determinate term of eight years, to which the enhancement is attached. Rather, Zamora contends the statutorily required enhancement is unconstitutional as applied to her in this case.
Given that the California courts have approached this subject somewhat differently than the federal courts, we will discuss the constitutional limitations on noncapital sentences under each constitutional scheme.
I
EIGHTH AMENDMENT LIMITATIONS
The U.S. Supreme Court has recognized that the Eighth Amendment's prohibition of cruel and unusual punishment includes a "narrow proportionality principle that applies to noncapital sentences." (Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 (conc. opn. of Kennedy, J.); Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).) That principle prohibits "imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197 (Weddle).)
Case law has established three criteria which are relevant to an Eighth Amendment analysis of any sentence: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentence imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 292.)
Dealing with the principles set out above, Ewing, supra, 538 U.S. 11, involved a 25-year-to-life sentence under California's Three Strikes Law for a relatively minor theft offense by a recidivist felon. The court there rejected a proportionality challenge to that sentence. Comparatively, the act of personally discharging a firearm and thereby causing great bodily injury is at least of equal gravity and deserving of similar punishment.
However, Zamora, relies on a different line of federal authority to bolster her claim. She refers to recent U.S. Supreme Court authority limiting the ability of states to impose life without parole sentences on minors under the age of 18. For example, she relies on Graham v. Florida (2010) 130 S.Ct. 2011 (Graham).
In Graham, supra, 130 S.Ct. 2011, the high court dealt with a teenager who was 16 years old when he committed first degree burglary. He was sentenced to life imprisonment in a system in which he could only get released from prison based on a grant of clemency. The court construed the Florida sentence to be life without parole. The basic holding of Graham is that nonhomicide crimes committed by minors, under the age of 18, cannot constitutionally result in a life without parole sentence. While there is somewhat of an arbitrary nature of a constitutional line drawn at age 18, that is the line drawn by the court in Graham and that line is generally used in determining whether young criminals come within the juvenile justice system or must be dealt with in the adult courts.
Zamora's efforts to bring herself under the constitutional protections of Graham are not persuasive. No case has held that a 22-year-old adult is similarly situated to a minor. Zamora has not presented any evidence of unique immaturity or mental impairment. She has certainly made numerous bad choices in her life since age 15, but none of that warrants extending the protections of Graham, supra, 130 S.Ct. 2011, to an adult in her twenties. In short, Zamora has not presented any federal authority to support her claim that her sentence is constitutionally infirm under the Eighth Amendment.
II
CALIFORNIA'S CONSTITUTIONAL LIMITATIONS
The California Constitution, article I, section 17 prohibits "cruel or unusual punishment." A sentence may be 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; In re DeBeque (1989) 212 Cal.App.3d 241, 248.)
As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 419 and People v. Dillon (1983) 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criteria depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g. Dillon, supra, at pp. 479, 482-488; Weddle, supra, 1 Cal.App.4th 1190, 1198-1200; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311 [the defendant has the burden of establishing her punishment is greater than that imposed for more serious offenses in California and similar offenses in other states do not carry punishments as severe]; see In re DeBeque, supra, at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, at p. 1196.)
Here, Zamora has not met her burden. She has not sought to compare the punishment for the firearm enhancement with any other California offense or any similar offense from other states. Her principal challenge under the California Constitution is the same as her Eighth Amendment claims, i.e., her relative youth and minimal criminal history require a sentence less than imposed by statute. Again, we disagree.
As we have noted, Zamora was not a minor at the time of the offense. She does have a limited criminal history with one misdemeanor vehicle theft conviction in 2006. She had a narcotics offense pending at the time she committed the current crimes,
however that case was dismissed following the convictions for the current offenses.However, to whatever extent her age and criminal history might be considered as "mitigating," they are certainly offset by her participation in the current offenses.
The pending drug offense served as the basis for the on-bail enhancement.
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Zamora planned the crimes, recruited her codefendants and drove to the motel. It was Zamora who brought the gun and who intentionally fired into the bathroom door the victim was trying to close. It was Zamora who personally inflicted great bodily injury on the victim. And, one might ask, to what purpose? Zamora was upset because Jefferson had taken her share of the proceeds from their on-going criminal activity.
As we have previously observed, Zamora has undoubtedly made terrible choices since she was 15 years old. However, planning and executing a residential robbery and using a firearm to inflict great bodily injury is serious, violent criminal behavior. We cannot say that imposition of the legislatively mandated 25-year-to-life term for the use of the firearm shocks the conscience or offends fundamental notions of human dignity. The sentence in this case is within constitutional limits and was properly imposed.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.