Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. NA072209, Tomson T. Ong, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Kathy Ann Baker.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Douglas Stewart.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Kathy Ann Baker (Baker), also known as Kathy Cofield and Kathy Andrews, and Douglas Stewart (Stewart) appeal from the judgments entered upon their convictions by jury of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a), count 1), mayhem (§ 203, count 2), three counts of assault with a firearm (§ 245, subd. (a)(2), counts 4, 5 & 6), and conspiracy to commit murder (§ 182, subd. (a)(1), count 9). Stewart also appeals his convictions of making a criminal threat (§ 422, count 3) and possession of a firearm by a felon (§ 12021, subd. (a)(1), count 8). As to counts 1, 2, and 9, the jury found to be true as to both defendants, and as to count 3 as to Stewart, the allegation that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to counts 1, 2 and 9, the jury also found to be true as to Stewart the firearm allegation within the meaning of section 12022.53, subdivisions (b), (c) and (d). As to count 9, the jury found to be true as to Stewart the allegations that he personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and used a firearm in the commission of a felony within the meaning of section 12022.5, subdivision (a). Stewart admitted having suffered a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Baker and Stewart to aggregate state prison terms of 31 years to life and 56 years four months to life, respectively.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendants contend that (1) the evidence is insufficient to support the conspiracy to commit murder and attempted murder convictions, and (2) because the jury returned guilty verdicts on count 1 for both attempted murder and the lesser included offense of assault with a firearm, the attempted murder conviction is inconsistent and must be reversed. Baker separately contends that (3) the evidence is insufficient to support her convictions of mayhem and assault with a firearm, as she did not commit those acts, did not conspire to commit them and did not aid or abet in their commission. Stewart separately contends that (4) the trial court committed reversible error and deprived him of his constitutional rights by failing to instruct the jury on the lesser included offense of conspiracy to commit an assault with a firearm, and (5) the firearm enhancement in section 12022.53, subdivision (d) is an unconstitutionally cruel and unusual punishment. Baker joins in Stewart’s contentions to the extent they accrue to her benefit. (Cal. Rules of Court, rule 8.200; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
We review the record in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66; People v. Autry (1995) 37 Cal.App.4th 351, 358.) In March 2006, Donald Winfree (Winfree) resided with his sister Sarah Vaughn (Vaughn) and her daughter, J.V., in the City of Long Beach. Winfree had been separated for years from Baker, with whom he had a 13-year-old daughter, K.W.
In late March 2006, Baker was having problems with K.W. She telephoned Winfree and told him to take her. Two weeks later, the previously good relationship between Winfree and Baker deteriorated due to conflicts regarding K.W.
On April 22, 2006, at approximately 10:00 p.m., Baker called Winfree, and they argued. Baker said she wanted to pick up K.W. and told Winfree she was coming to get her. He told her not to, and Baker hung up on him. Less than an hour later, she arrived and parked her car across the street from Winfree’s residence. She usually parked on Winfree’s side of the street, directly outside of his building.
Winfree went outside to meet Baker to avoid a confrontation in front of K.W. He saw Baker’s car being parked across the street, but could not see Baker inside. He headed toward her car. As Winfree looked to the left for oncoming traffic, he saw a bright light coming from the rear of a parked white car and “heard a pop.” He felt pain in his inner thigh and scrotum and fell to the ground. Winfree saw Stewart, whom he knew as Baker’s boyfriend, “pop[] out of the rear of [the white] vehicle,” approach and point a gun at him. Winfree tried to “scoot” away. Stewart called him a “nigger,” stated that Stewart was “a gangster,” and said, “I’m going to kill you.”
Vaughn heard Winfree go outside and then heard the gunshot. She looked out of her window and saw Baker standing by the driver’s side of her car, parked across the street. Vaughn and K.W. ran outside. Vaughn saw Winfree lying on the grass near the passenger side door of a white vehicle. She saw Stewart standing behind that car, pointing a handgun at Winfree. Stewart had previously been introduced to Vaughn as Baker’s boyfriend. Vaughn approached the men and yelled at Stewart to leave her brother alone. Stewart pointed the gun at her and responded, “‘Bitch, I’ll shoot you too.’” K.W. then moved next to Vaughn, and they moved between Stewart and Winfree with their arms interlocked, blocking Stewart from getting to Winfree. Stewart then pointed the gun at K.W.
At this point, J.V. had come out of the house and also saw Baker by Baker’s car. Stewart pointed the gun at J.V., and Vaughn told her daughter to go inside and not to call the police. Vaughn then made eye contact with J.V. and mouthed that she should call the police. J.V. went inside, called 911, and then came outside again.
Stewart moved closer to Vaughn, attempting to get to Winfree. Baker then began crossing the street and walking towards Stewart, with a smirk on her face. She said nothing. Vaughn and K.W. tried pulling Winfree into the street, towards the front of the white car, to keep him from Stewart. Stewart followed, but changed directions and tried to get to Winfree by going the other way around the car.
Neighbors had come outside, and defendants returned to Baker’s car. Baker entered the driver’s side and Stewart the front, passenger side. Baker rolled down her window, and Vaughn asked if she saw K.W. crying. Baker simply “smirked,” shrugged her shoulders, rolled up the windows and drove away.
Five to 10 minutes later, the police and ambulance arrived. Winfree was lying on the ground. He was taken to the hospital where one of his testicles had to be surgically removed and sutures and stitches placed in his leg. He suffered nerve damage affecting his ability to walk. Winfree remained hospitalized for just under a week.
Later that night, Baker called Vaughn and left a message on her answering machine. After phone tag for a couple of days, they finally spoke. Baker denied being present at the shooting and denied that anyone was there with her.
On May 30, 2006, Stewart was arrested, initially giving police a false name.
Stewart’s evidence
Officer Brian Nystedt responded to J.V.’s 911 call and interviewed Vaughn, who was crying and shaking. She identified Stewart, who she knew, as the shooter. She told the officer that she saw Stewart getting out of Baker’s car. Contrary to her trial testimony, she told Officer Nystedt that she did not know of a dating relationship between Stewart and Baker.
Officer Gabriel Garrido, who also responded to the scene, testified that J.V. told him that “she saw a person holding a gun at the side and not pointing at anyone.”
DISCUSSION
I.Sufficiency of the Evidence
A. Conspiracy and attempted murder
1. Contentions
Defendants contend that the evidence is insufficient to establish a conspiracy to murder Winfree because there was neither direct nor circumstantial evidence of an agreement between them. They also contend that there was insufficient evidence of an attempt to murder Winfree because Stewart impulsively shot him as Winfree ran towards Baker, only shot him in the thigh, and did not kill him when Winfree was rendered helpless by the first bullet, reflecting a lack of intent to kill. Baker further argues that the evidence establishes that she did not directly participate in the shooting of Winfree, did not aid or abet the shooting and did not have an agreement to kill him, but “found herself on the sidelines of a situation where co-appellant went out of control.”
2. Standard of Review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
3. Conspiracy
A conspiracy requires (1) an agreement between two or more people, (2) who have the specific intent to agree to conspire to commit an offense, (3) with the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416; People v. Vu (2006) 143 Cal.App.4th 1009, 1024; People v. Marks (1988) 45 Cal.3d 1335, 1345.) The unlawful agreement which is at the core of a conspiracy charge need not be explicit or expressed in words but may consist of a tacit mutual understanding to commit a crime. (People v. Vu, supra, at p. 1025; People v. Gem Hang (1955) 131 Cal.App.2d 69, 71–72; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999.) It may be inferred from conduct, relationships, interests and activities of the alleged coconspirators before and during the alleged conspiracy. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417; People v. Brown (1968) 259 Cal.App.2d 663, 671.) The agreement can be, and usually must be, established by circumstantial evidence. (People v. Austin (1994) 23 Cal.App.4th 1596, 1606, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856.)
The circumstantial evidence here is sufficient to support the jury’s finding that defendants conspired to murder Winfree. While Baker did not directly participate in the shooting, and mere association with perpetrators does not establish participation in a conspiracy, it provides a starting point. (In re Nathaniel C., supra, 228 Cal.App.3d at p. 999.) She was in a dating relationship with Stewart and was present with him at the scene of the shooting. In the weeks before, Baker’s relationship with Winfree deteriorated. An hour before defendants arrived at Winfree’s home, Baker and Winfree engaged in a heated argument on the telephone regarding K.W. Baker said she was coming to take her, and Winfree told her not to do so. There was no evidence that Stewart harbored any ill will towards Winfree, permitting an inference that he was acting at Baker’s behest.
Stewart concedes in his opening brief that he arrived with Baker.
Further, the evidence suggests a joint, preconceived plan. Uncharacteristically, Baker parked across the street from Winfree’s building, as if expecting an incident in front of his building. Before Baker finished parking, Stewart had exited the car, carrying a firearm. When Winfree came out of the house, Stewart was behind the white car waiting. If Stewart had merely accompanied Baker without a prearranged agenda, this conduct would make little sense.
During the incident, Baker acted as if she knew in advance what was transpiring. When the shooting occurred, she stood calmly by her car. There was no evidence she was surprised or upset. When Stewart approached Winfree and threatened to kill him, Baker made no effort to intercede. Even when Stewart pointed his gun at her daughter, she made no effort to stop him. She merely “smirked” at Vaughn. When Stewart finally withdrew, he went to Baker’s car, entered the passenger side, and Baker drove him away.
4. Attempted murder
Murder is the unlawful killing of a human being with malice aforethought (§ 187), and is first degree murder if committed with premeditation and deliberation. (§ 189.) In order to prove that appellant attempted willful, deliberate and premeditated murder, the prosecution is required to establish that (1) the defendant engaged in a direct but ineffectual act towards the killing of another human being, and (2) committed the act with the specific intent to kill another human being unlawfully. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467; In re Gutierrez (1997) 51 Cal.App.4th 1704, 1711; § 188.) Rarely will the intent of a wrongdoer be proven by direct evidence. (People v. Lashley (1991) 1 Cal.App.4th 938, 945.)
Stewart claims there was insufficient evidence he intended to kill Winfree. He argues that the evidence demonstrated that the shooting was merely an impulsive act taken as Winfree ran towards Baker. We disagree. There was no evidence that the shooting was impulsive. Rather, it had all of the earmarks of a planned murder. Stewart exited Baker’s car before she had finished parking, carrying a firearm he brought with him. He then stood behind a white car and shot the unsuspecting Winfree as he crossed the street. The record does not indicate that Winfree presented any danger to defendants.
We also reject Stewart’s argument that his shooting Winfree in the thigh shows that he only intended to disable him. Certain acts of aggression by their very nature suggest an intent to kill. “The question of defendant’s intent at the time of the shooting was a factual issue that the trial court determined adversely to him. The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in finding that a person who unsuccessfully attempted to kill another did so with the intent to kill. The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” (People v. Lashley, supra, 1 Cal.App.4th at p. 945 [shooting at point-blank range “undoubtedly creates a strong inference that the killing was intentional”]; see also People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [“The act of firing toward a victim at close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill’”].)
Not only did Stewart shoot Winfree at close range, after the initial shot, he said he was going to kill him. He then pursued him, apparently deterred only by the human shield interposed between him and Winfree by Vaughn and K.W.
Finally, we reject Stewart’s assertion that his failure to kill Winfree when Winfree was on the ground, at his mercy, establishes his lack of intent to kill. It is Stewart’s intent at the time he fired the shot that hit Winfree which is determinative, not his intent afterwards. A jury could reasonably infer that Stewart did not finish the job because of a change of heart, the new circumstances presented by Vaughn and K.W.’s presence, or the assembling crowd of people.
B. Mayhem and Assault with a firearm
Baker contends that there is insufficient evidence to support her convictions of mayhem and assault with a firearm as she had no agreement with Stewart, did not participate in perpetrating the offenses, and did not aid and abet in their commission. This contention is without merit.
For the reasons set forth in part IA3, ante, we conclude that there was sufficient evidence to support a finding that defendants had an agreement to kill Winfree. All members of a criminal conspiracy are bound by all acts of all members done in furtherance of the agreed plot. (People v. Lowery (1988) 200 Cal.App.3d 1207, 1221.) This is so even for unintended acts by coconspirators if the acts are in furtherance of the object of the conspiracy or are reasonable and natural consequences of the object of the conspiracy. (People v. Hardy (1992) 2 Cal.4th 86, 188 [approving CALJIC No. 6.11].) All of the offenses committed by Stewart, occurred in the course of his attempt to murder Winfree and were in furtherance of that objective. They were the reasonable and natural consequences of that criminal objective, for which Baker, as a coconspirator, is culpable.
II. Failure to Instruct on Lesser Included Offense
The amended information alleges a conspiracy to commit murder in count 9. It alleges, among other operative acts in furtherance of the conspiracy, that Stewart shot Winfree with a handgun.
Stewart contends that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of conspiracy to commit an assault. He argues that there was substantial evidence from which a jury could conclude that defendants planned only to disable Winfree so Baker could take her daughter from him.
In criminal cases, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]”’” (People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531; People v. Saddler (1979) 24 Cal.3d 671, 681.) This obligation has been held to include giving instructions sua sponte on lesser included offenses when the evidence raises a question whether all of the elements of the charged offense are present (People v. Breverman, supra, at p. 154), but not when there is no evidence that the offense was less than charged. A trial court must instruct sua sponte on a lesser included offense even if it is inconsistent with the defendant’s theory of the case. (Id. at p. 159.) To warrant instruction on a lesser offense, substantial evidence must show that the defendant is guilty of the lesser, but not the greater offense. (Id. at p. 162.)
A lesser offense is necessarily included in the charged offense only if it meets either the “‘elements test’” or the “‘accusatory pleading test.’” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The “elements test” is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The “accusatory pleading test” is satisfied “‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.”’” (Id. at pp. 288–289.) “Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information.” (People v. Birks (1998) 19 Cal.4th 108, 118.)
Conspiracy to assault with a firearm is not a lesser included offense of conspiracy to murder under the elements test as violence is not an element of murder. (People v. Cook (2001) 91 Cal.App.4th 910, 918–919; People v. Dixie (1979) 98 Cal.App.3d 852, 856.) For example, a person can be murdered by poison, which does not involve the violence of a firearm. Consequently, conspiracy to commit an assault with a weapon is a lesser included offense of conspiracy to murder, if at all, only under the accusatory pleading test.
The information here alleges as an overt act in furtherance of the conspiracy that Stewart shot Winfree with a handgun. Therefore, if the alleged operative acts can properly be considered in the accusatory pleading analysis, conspiracy to assault with a firearm is a lesser included offense of conspiracy to murder under that test.
An enhancement allegation in an information cannot be considered in an accusatory pleading analysis. (People v. Wolcott (1983) 34 Cal.3d 92, 100–101.)
There is a split of authority on this issue. People v. Cook, supra, 91 Cal.App.4th 910, concluded that alleging firearm use as one of the overt acts in furtherance of a conspiracy to murder provides adequate notice of conspiracy to assault with a firearm as a lesser included offense. (Id. at pp. 918–922.) People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1709, on the other hand, concluded that “[b]ecause overt acts need not be criminal offenses or even acts committed by the defendant, the description of the overt acts in the accusatory pleading does not provide notice of lesser offenses necessarily committed by the defendant.” (Id. at p. 1709, fn. omitted.)
We need not weigh in on this issue, as we conclude that even if the trial court erred in failing to instruct on conspiracy to commit an assault, that error was harmless in that it is not reasonably probable that if the instruction had been given the defendant would have achieved a more favorable result. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against defendants was strong. As discussed above, it amply supports a finding that they were acting in concert. Stewart was identified by Winfree, Vaughn and J.V. as the perpetrator. Further, the jury found defendants guilty of attempted, willful, deliberate and premeditated murder, thereby necessarily finding that he had the specific intend to kill required for conspiracy to commit murder.
III. Inconsistent Verdicts
The jury was instructed in accordance with CALCRIM No. 3517 that the trial court could “only accept a guilty verdict on a lesser crime if you all agree that the defendant is not guilty of the charged greater crime and give [it] a signed verdict form of not guilty for the charged greater crime.” The jury nonetheless submitted verdict forms finding defendants guilty in count 1 of both attempted murder and the lesser included offense of assault with a firearm. Stewart’s counsel objected that such verdicts were “irregular.”
The trial court disagreed, believing that the “lesser is merged under Penal Code section 654.” It found that the reason for the inconsistency “is because those lesser-included instructions in CALCRIM are awful.” The jury did not understand that they were not to fill out the lesser verdict form if they found the defendants guilty of the greater charged offense.
Defendants contend that the attempted murder conviction must be reversed because the jury returned inconsistent verdicts by finding defendants guilty of both attempted murder and the lesser included offense of assault with a firearm. They argue that when “two findings of fact are in irreconcilable conflict the one most favorable to the defendant will be honored.” This contention is without merit.
We conclude, as did the trial court, that there is no conflict in finding defendants guilty of both attempted murder and assault with a firearm. In order to find them guilty of a greater offense, the jury necessarily had to find them guilty of the lesser offense because, by definition, the lesser offense must be committed in the course of committing the greater. The jury apparently did not understand that it was not to decide the defendants’ guilt of the lesser offense unless it found them not guilty on the greater offense.
IV. Cruel and Unusual Punishment
Stewart was sentenced to a term of 25 years to life for conspiracy to murder in count 9 plus a 25-years-to-life term for the section 12022.53, subdivision (d) firearm enhancement, plus determinate, consecutive sentences of eight months on count 3, three years on count 4, one year each on count 5 and 6 and eight months on count 8.
Stewart’s opening brief incorrectly states that the 25-years-to-life sentences were for attempted murder in count 1.
Stewart contends that imposition of a 25-years-to-life firearm enhancement is cruel and unusual punishment. He argues that here “the problem is not that the 25 year sentence imposed for the [conspiracy to] . . . murder is disproportionate in view of the extremely serious nature of this offense. Rather, the problem is that the additional 25 years-to-life imposed—based solely on the defendant’s choice of weapon—is disproportionate (a) when compared to the one additional year given to offenders who use ‘other deadly weapons’ (e.g., knife) and (b) in comparison with shorter firearm use enhancements meted out in virtually every other state.”
The People contend that appellant forfeited this claim. We agree. The California Supreme Court has repeatedly held that constitutional objections, like other objections, must be raised in the trial court in order to preserve them for appeal. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250 [forfeit of First, Eighth, and Fourteenth Amendments]; see also People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8 [forfeit of claim of cruel and unusual punishment].)
While the People use the term “waiver” in reference to defendant’s failure to preserve this claim for appeal because he did not raise the question in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
Even if not forfeited, we would reject this claim. “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments . . . .” (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible.” (Id. at p. 423.) “Reviewing courts, . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” (Solem v. Helm (1983) 463 U.S. 277, 290, fn. omitted; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213–1214 [rejecting cruel and unusual punishment challenge to section 12022.53, subd. (d)]; see also Lynch, supra, at p. 414.) “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 (Martinez).)
“Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it ‘shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547.) Similarly, under the federal Constitution punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment if it is “grossly out of proportion to the severity of [his] crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.)
We do not find appellant’s challenge to section 12022.53, subdivision (d) to be one of those rare cases in which the Legislature has overstepped its bounds and imposed a penalty that is cruel and unusual. Appellant does not, and cannot, argue that the sentence imposed on him is disproportionate to the heinousness of his crime. He approached an unsuspecting and unarmed individual and shot him at practically point blank range for no apparent reason.
Instead, appellant argues that imposition of the 25-years-to-life firearm enhancement was disproportionate to the punishments he would receive for using other weapons in a killing. As stated by our colleagues in Division Four: “[T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]” (Martinez, supra, 76 Cal.App.4th at pp. 497–498.)
Appellant also argues that the 25-years-to-life firearm enhancement in section 12022.53 is disproportionate to the enhancements meted out in other jurisdictions. He includes as an appendix to his opening brief a survey of the gun use enhancements in the other states. We have reviewed appellant’s list and find that a straight comparison of the number of years imposed by California for firearm use and that imposed by other states is like comparing apples and oranges. California employs a graduated scheme of punishment based upon the extent of the gun use in the commission of the crime; punishment of 10 years for using a gun, 20 years for discharging it and 25 years to life for discharging it and causing death or great bodily injury. (§ 12022.53, subds. (b), (c) & (d), respectively.) Some other states with lower sentences impose the lower sentence regardless of the extent of the gun use and do not appear to have a graduated gun-use penalty. (i.e., Okla. Stat., Ch. 21, § 1287 [punishes possession of gun during commission of a felony]; Vt. Stat., Tit. 13, § 4005 [punishes carrying deadly or dangerous weapon].)
Oklahoma is illustrative of how the many different variables in assessing the severity of a punishment make comparison difficult. Oklahoma makes “possession” of a gun during the commission of a felony a separate felony from the underlying offense, subject to a penalty of two to 10 years for the first gun possession offense and 10 to 30 years for any subsequent gun possession offenses. (Okla. Stat., Ch. 21, § 1287.) The punishment appears to be the same whether the gun is carried, discharged or discharged and kills or seriously injures someone. Its two to 10-year sentence for mere possession is comparable to California’s 10-year sentence for using a gun without discharging it. Further, its 10-to-30-year sentence for subsequent convictions of possessing a gun during a felony is potentially greater than California’s 25-years-to-life penalty for discharging a gun and killing someone. Nebraska, on the other hand, provides that the use of a firearm to commit any felony is an additional offense punishable between one and 50 years in prison (Neb. Stats. §§ 28-1205(1) & 28-1205(2)(b)), a potentially longer sentence than imposed under section 12022.53, subdivision (d).
Moreover, to the extent that California’s punishment may be viewed as greater than all other states, it need not tailor its sentencing to be in lockstep with other jurisdictions. There will always be one state whose sentence is greater than the rest. That fact alone does not render the punishment disproportionate and cruel and unusual.
Finally, there is nothing before us to indicate whether the severity of the gun-use problem in California is comparable to that in other states. The greater the severity of the problem, the greater is the justification for a lengthier punishment.
For the foregoing reasons, we conclude, as have other appellate courts considering this issue (see Martinez, supra, 76 Cal.App.4th at p. 489; People v. Zepeda, supra, 87 Cal.App.4th at pp. 1212–1216; People v. Gonzales (2001) 87 Cal.App.4th 1, 16), that section 12022.53, subdivision (d) does not violate the cruel and unusual punishment clause.
DISPOSITION
The judgments are affirmed.
We concur: BOREN, P. J., DOI TODD, J.