Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02438
CANTIL-SAKAUYE, J.
Reginald Thomas Bunn and Antonio Lamar Minor were convicted of first degree murder (Pen. Code, § 187, subd. (a)) of a marijuana dealer named Gamaliel Torres. The jury found true the special circumstance that the murder was committed while Bunn and Minor were engaged in the crime of robbery or attempted robbery within the meaning of section 190.2, subdivision (a)(17). The jury found true the allegation that Bunn and Minor had each personally discharged a firearm (Bunn fired a.357-caliber handgun and Minor fired a.410-gauge shotgun) causing Torres’s death within the meaning of section 12022.53, subdivision (d).
Hereafter, undesignated statutory references are to the Penal Code.
Codefendants Daryeus Howard and Justin Mylove-Smith were tried by separate juries. In a negotiated disposition after their juries were unable to reach verdicts, Mylove-Smith and Howard each pled no contest to lesser charges and were sentenced to two years in state prison.
Rejecting the claims of Bunn and Minor, who were each 17 years old at the time of the murder, of unconstitutional cruel and unusual punishment, the trial court declined to exercise its discretion to impose a 25-years-to-life sentence and instead sentenced both Bunn and Minor to indeterminate terms of life without the possibility of parole (LWOP) (§ 190.5, subd. (b)), plus 25 years to life for the firearm enhancement. A restitution fine of $10,000 was imposed under section 1202.4 and a parole revocation fine of the same amount was imposed and stayed under section 1202.45. No credit for time served was awarded.
On appeal, Bunn claims (1) the trial court in effect closed the courtroom to some of the defendant’s friends and family violating his constitutional right to a public trial; and (2) his trial counsel provided ineffective assistance by (a) failing to move for severance, and (b) by failing to object and move for exclusion of certain inflammatory bad character evidence. Both Bunn and Minor claim on appeal their LWOP sentence constitutes cruel and unusual punishment and the trial court abused its discretion in rejecting a 25-years-to-life sentence. Both assert, and the People concede, the trial court erred in denying them custody credit for actual time served and by imposing a parole revocation fine when they had been given a LWOP sentence. We shall accept the People’s concession of the last two claims and reject all others. With the aforementioned modifications, we shall affirm the judgments.
FACTUAL BACKGROUND
The Prosecution’s Evidence
On March 9, 2006, at about 10:00 p.m., George Gomez, who lived next door to the parking lot for Chorley Park, heard a male say something in an angry voice, followed by several gunshots. He heard a car rev its engine. When he peered out of his blinds, Gomez saw a dark blue small SUV exit the park. Jasmine Ramos was inside her home near Chorley Park on March 9, 2006. Around 10:00 p.m., she heard gunshots and when she looked out her window, she saw a car that looked like a Ford Explorer speed past.
A little after 10:00 p.m. that same night, Sacramento Police Officer Garrett Dutra was doing a park check at Chorley Park when he noticed a black Toyota pickup parked in the parking lot. Both doors were open and the truck engine was running. When Dutra approached the truck, he saw the driver’s window was shattered, although intact, and there was a bullet hole through the window. The driver, who was later identified as 19-year-old Gamaliel Torres, was still seat belted in his seat with his hands in his lap and his head leaning down. Torres was dead from a fatal gunshot wound to the upper left side of his head behind the ear and a fatal shotgun wound to his right arm. It was later determined from stippling surrounding the head wound that the gun had been either in contact with or very close to the glass window at the time Torres was shot. The muzzle of the shotgun was within three to four feet of Torres at the time of shooting. Dutra observed a cell phone headset hanging from Torres’s head with no phone attached. Dutra saw blood on the inside of the window and blood dripping from the truck onto the ground.
Torres was a known dealer of marijuana. He used little baggies printed with hearts, skulls and marijuana leaves as packaging. Torres had been wearing a chain necklace that day.
Meanwhile, less than a half mile away from Chorley Park, Sacramento Police Officer Stephen Moore had stopped a dark blue Mercury Mountaineer (SUV) for speeding. Moore approached the SUV and the driver, Mylove-Smith, provided his license and insurance. Moore smelled a strong odor of marijuana and decided to search the SUV. He called for assistance as there were four individuals in the SUV. Mylove-Smith was in the driver’s seat, Howard was next to him in the front passenger seat, defendant Bunn was behind Mylove-Smith in the left rear passenger seat, and defendant Minor was behind Howard in the right rear passenger seat. Sacramento Police Officer Brian Laird arrived to assist Moore.
Laird instructed everybody in the SUV to put their hands where the officers could see them, but Minor repeatedly dropped his hands from the back of the seat down to his seat. When the occupants of the SUV were removed, the officers discovered three sandwich-size baggies containing what appeared to be marijuana on the seat where Minor had been sitting. Laird searched Minor and found a cell phone, some change, and a.410 shotgun round in his pants pocket.
About this time, Moore heard Dutra broadcast his discovery of the body at Chorley Park. A subsequent search of the SUV uncovered a shotgun under the front passenger seat, where it would have been accessible only to Minor. The shotgun had blood on the wood part at the front. In the seat pocket in front of where Minor had been sitting, a live shotgun shell was found along with a small baggie stamped with hearts, containing some unidentified purple pills. Under the driver’s seat near where Bunn’s feet had been, Laird found a black.357-magnum revolver with two live rounds and one spent casing. Moore noticed blood on Bunn’s hands and on the fingers of both of Minor’s hands. Bunn had blood spatter on both sides of his pants, as well as on his left shoe. Later examination of the SUV disclosed blood stains in the back passenger area in eight places; seven connected with the right rear passenger area and one on the rear driver’s side passenger door. DNA testing of the blood found on Minor’s hand, Bunn’s clothes and shoes and from the interior driver’s and passenger’s side rear doors of the SUV was conducted and the samples were determined to contain the same DNA profile as Torres.
The search of the SUV also revealed a Sprint cell phone and a chain necklace on the rear passenger’s floorboard, where Minor had been sitting, next to a baggie of marijuana. There appeared to be blood on the phone and necklace, as well as on some of the baggies of marijuana in the SUV. A close friend of Torres identified the necklace and cell phone as Torres’s phone and necklace. A shoebox in the cargo area of the SUV contained athletic shoes and about 20 small baggies of marijuana, stamped with hearts or marijuana leaves. Bunn’s jacket in the rear cargo area contained marijuana packaged in a baggie with red hearts. A backpack with Howard’s identification card inside was also found in the cargo area. The backpack contained a plastic baggie with 21 smaller plastic baggies inside, stamped with hearts or marijuana leaves. Beanies and a ski mask were also found inside the SUV.
Later testing showed a large amount of gunshot residue (GSR) on Torres, consistent with his having been shot twice. GSR was also found on Minor’s hands, along with a large number of lead particles, consistent with the lead shot pellets of a shotgun. GSR was found on the back of Bunn’s hands, but not his palms. The People’s expert opined that Minor and Bunn had either fired a weapon, were within the vicinity of a weapon when it was fired or had handled a fired weapon or fired ammunition. One particle of GSR and nine particles of lead were recovered from the rear driver side door of the SUV. Two particles of GSR and over 30 lead particles were recovered from the rear passenger side door. No GSR was detected on the front driver or front passenger side doors. Neither Mylove-Smith or Howard had any GSR on their hands.
At autopsy it was determined that the bullet components recovered from Torres’s skull were from a single jacketed bullet fired from the revolver recovered from the SUV. The shotgun shell components removed during autopsy were consistent with the shells used in the shotgun found in the SUV.
Minor’s MySpace page included a photograph of himself holding the revolver used in Torres’s murder.
Minor’s Defense
Minor testified in his own defense.
On the evening of March 9, Minor called Bunn to ask him for a ride to the store to buy baby formula for Minor’s baby, although Minor also planned to smoke some marijuana and hang out before going home. Bunn, Mylove-Smith, and Howard picked Minor up around 8:45 or 9:00 p.m. Bunn told Minor they were going to make a stop before they took Minor to the store. Bunn asked Minor to call Torres for him, explaining that his cell phone was dead. Minor had never met Torres. Minor called Torres and arranged for them to meet Torres at Chorley Park. They drove to the park where they waited about an hour for Torres to arrive. Minor knew Bunn sold marijuana, but did not know who his supplier was.
When Torres arrived, Minor claimed that Mylove-Smith got out of the car and walked to Torres’s truck. He came back after a minute and spoke to Bunn. Bunn got out of the car and both he and Mylove-Smith walked back to Torres’s truck. Minor then heard three loud bangs. He looked up and saw Mylove-Smith at the passenger side of Torres’s truck and Bunn at the driver’s window. Bunn was looking at his own shirt. Thinking Bunn might be hurt, Minor got out of the car and ran to the truck. He saw Torres in the truck with his head leaning towards the steering wheel. Minor saw Bunn had a long black gun in his hand and Mylove-Smith was holding a shotgun. Bunn kept reaching in the truck for something. Minor bear-hugged Bunn, trying to get him to leave. Minor got blood on himself in the process. Minor, Bunn, and Mylove-Smith ran back to their car. Bunn put his head down and said “I killed him, blood.” Mylove-Smith drove away from the park.
About 30 seconds after they left the park, Minor became aware that they were being followed by a police officer. He told Mylove-Smith to slow down as he was driving too fast. Mylove-Smith then began tossing baggies of marijuana to the back seat, telling Minor to “hold this.” He also slid the shotgun back to Minor, who grabbed it with both hands and slid it under the seat in front of him. Mylove-Smith tossed some shotgun shells back to Minor who put one in the seat pocket and one in his pants pocket.
Minor claimed the revolver in the MySpace photograph and the shotgun belonged to Bunn. He denied seeing any weapons until after he heard the gunshots and had no idea where they came from.
Bunn’s Defense
Bunn testified in his own defense. He denied shooting Torres.
Bunn testified he sold marijuana in small quantities, mostly at his high school. Torres was his regular supplier and his friend. Torres had delivered two ounces of marijuana to Bunn the night of March 8, the day before the shooting. He also gave Bunn some baggies for packaging. Some of the marijuana and packages were in the shoebox found in the SUV’s cargo area the next day.
On March 9, Minor called Bunn asking to buy a quarter pound of marijuana. Bunn told him he did not have that much. Minor asked Bunn to take him to “the Mexican dude” that supplied Bunn. Bunn knew Torres still had eight ounces left to sell and eventually Bunn agreed, hoping for a referral fee. Mylove-Smith, Howard, and Bunn picked Minor up and began to head in the direction of Torres’s house, but Minor called Torres and arranged to meet him at Chorley Park. They arrived about 45 minutes before Torres did.
Torres arrived at the park around 10:00 p.m., pulling up behind and to the right of the SUV defendants were in. Bunn rolled down his window to greet Torres. They nodded at each other and Bunn rolled his window back up. Minor got out and went to the passenger side of Torres’s truck. Minor went back and forth between the SUV and the truck several times. Mylove-Smith asked Bunn to go see what was taking so long. As Bunn approached the driver’s side of the truck, he heard a loud gunshot. He saw Minor run back to the SUV and then back to the driver’s side of the truck, where Minor hit the window with a revolver. As Bunn reached up to hit the gun out of Minor’s hand, the gun went off.
Bunn opened the driver’s door to check on Torres and saw that he was dead. Torres fell towards Bunn, who pushed him back upright. Bunn picked up the revolver from where it had fallen on the ground and got back in the SUV. Bunn placed the revolver on the back seat near Minor and told Minor: “You killed him.” Once the police were behind them, Minor put the gun on the floorboard in front of Bunn. Bunn kicked it under the seat.
Bunn denied ever seeing the revolver or shotgun before this night.
DISCUSSION
I.
Bunn Has Not Shown Any Violation Of His Right To A Public Trial
Background
After the selection of the three juries impaneled for this case (one for Howard, one for Mylove-Smith and one for Bunn and Minor), counsel for Bunn pointed out that only six seats were left available for the public. Counsel stated there probably would not be enough room for “even representative family members.” Recognizing the difficulties of having multiple juries, counsel felt that “we ought to open up some of the additional seats that are blocked off in here so more of the public can get in.” He suggested the better solution was to get a bigger courtroom or to not do the trials all at once.
The trial court noted “it’s now 9:15 on the day that we are going to start this case, and we had known all along we were going to do this case in this courtroom. [¶] And I appreciate that there is not enough room for everybody who wants to be here. We have set aside about, I think we got at least eight seats, allowing for buffers, for members of the public who want to be here.” The trial court found “we are not impacting anybody’s constitutional rights to the extent it’s going to require a continuance of this case, or removal of this case from this courtroom to another courtroom.”
Counsel for codefendant Howard then expressed the interest of the Howard family in having more than two seats for their family representatives “so that friends and the church bishop and others may come and show their support....” Counsel for codefendant Mylove-Smith observed that “of the eight seats... available, two of them are going to be earmarked for the victim and the victim’s family, so I believe that probably leaves six for the [defendants’] family.” The court replied that the victim’s father and someone from victim services wanted to be present “for today alone[.]” There would otherwise be eight seats available, two for each defendant.
Analysis
Bunn now claims on appeal that his constitutional right to a public trial was violated by the trial court’s refusal to open up additional courtroom seats or to consider other alternatives that would provide more space for defendant’s family, friends, and the public. The record does not support his claim.
Both the United States and the California State Constitutions guarantee the right to a public trial in criminal cases. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; see People v. Woodward (1992) 4 Cal.4th 376, 382.) “‘“The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions....”’ [Citation.] ‘In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.’ [Citations.]” (People v. Esquibel (2008) 166 Cal.App.4th 539, 551.) Violation of the right to a public trial requires reversal of the judgment without examination of prejudice. (People v. Woodward, supra, at pp. 381-382.)
The Sixth Amendment of the United States Constitution provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” Article I, section 15 of the California Constitution provides, in pertinent part, that “[t]he defendant in a criminal cause has the right to a speedy public trial....”
However, the denial of a defendant’s right to a public trial “‘requires some affirmative act by the trial court meant to exclude persons from the courtroom.’ [Citation.] Accordingly, a defendant’s right to a public trial is only implicated by a ‘closure.’” (United States v. Shryock (9th Cir. 2003) 342 F.3d 948, 974.)
Bunn claims the record shows an affirmative act by the trial court to exclude persons from the courtroom, and thus a closure, because there were additional seats in the courtroom that were blocked off and the trial court affirmatively refused to make them available even though it “appreciated there [was] not enough room for everybody who wants to be here.” We disagree with Bunn’s reading of the record.
The record shows this trial of four defendants with three juries required the use of a large part of the space in the assigned courtroom. Not counting the unknown number of seats blocked off for a buffer, there were only eight seats remaining for the public and defendants’ families and friends. On one day, two of the seats were used by Torres’s father and a victim services person, leaving only six seats. Counsel for several of the defendants, including Bunn, anticipated that this would be inadequate for the number of people who wanted to attend. Indeed, the trial court acknowledged the probability that not everyone who wanted to attend would be able to do so. This probability alone did not violate the right to public trial.
“[S]ince courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated. In such situations, reasonable restrictions on general access are traditionally imposed.” (Richmond Newspapers v. Virginia (1980) 448 U.S. 555, 581, fn. 18 [65 L.Ed.2d 973, 993].) The constitutional right to a public trial does not require the trial to be held in place large enough to accommodate all those who desire to attend. (United States v. Kobli (3d Cir. 1949) 172 F.2d 919, 923; United States v. Shryock, supra, 342 F.3d at p. 974.)
Of course, “all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present[.]” (In re Oliver (1948) 333 U.S. 257, 271-272.) Nothing in In re Oliver suggests, however, that defendants have a right to have an unlimited number of friends and relatives attend their trial when there is insufficient room. The record here shows counsel feared there would not be enough room and that more family members and friends had expressed interest in attending than there were seats available. But nothing in the record shows that members of defendant’s family and/or friends actually showed up for the trial and were turned away because of lack of seats in the courtroom. Bunn points us to nothing in the record that shows family and friends came to the courtroom, could not be accommodated by the available six to eight seats, that the problem was raised before the trial court, and that the trial court then refused to allow them to sit in the buffer seats, to put up additional folding seats, to allow them to stand in the back of the courtroom, or to make some other accommodation. Nothing in the record shows the anticipated problem ever became an actual problem resulting in the exclusion of any individual from the courtroom.
State v. Torres (R.I. 2004) 844 A.2d 155 and Watters v. State (Md. 1992) 612 A.2d 1288, relied on heavily by Bunn on appeal, are distinguishable from this case as they both involved actual exclusion of defendant’s family members. (State v. Barkmeyer (R.I. 2008) 949 A.2d 984, 1002-1003 [distinguishing State v. Torres--defendant’s Sixth Amendment challenge requires a showing that someone was, in fact, excluded from the trial].) Here, we find there was no closure of the courtroom to family or others.
Bunn has not shown any violation of his right to a public trial.
II.
Bunn’s Trial Counsel Did Not Provide Ineffective Assistance Of Counsel
A. By Failing To Move For Severance
Bunn claims ineffective assistance of counsel in his trial counsel’s failure to move for a severance of his trial from Minor because of their antagonistic defenses. We reject his claim.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068, 80 L.Ed.2d 674].)” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
In evaluating a claim of ineffective assistance, we accord great deference to the tactical decisions of trial counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “[W]here the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.” (People v. Pope (1979) 23 Cal.3d 412, 425.) When the record contains no explanation for the challenged behavior, we will reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Kipp (1998) 18 Cal.4th 349, 367.)
Section 1098 states a legislative preference for joint trials. They promote economy and efficiency and serve the interests of justice by avoiding inconsistent verdicts. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Joint trials are the rule, and severance the exception. (People v. Alvarez (1996) 14 Cal.4th 155, 190.) Where the prosecution contends multiple defendants planned and committed a murder together, a “classic” case for joinder is presented. (People v. Carasi (2008) 44 Cal.4th 1263, 1297.)
A trial court may exercise its discretion to order separate trials where the defendants will present conflicting defenses (People v. Avila (2006) 38 Cal.4th 491, 574-575), but “‘[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.’ [Citation.] ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ [Citations.]” (People v. Hardy (1992) 2 Cal.4th 86, 168, last two italics added; accord People v. Tafoya (2007) 42 Cal.4th 147, 162.) “When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; accord, People v. Carasi, supra, 44 Cal.4th at p. 1298.)
In this case, overwhelming physical evidence (the GSR and Torres’s blood found on Bunn, the location of one of the murder weapons at his feet, the discovery of Torres’s necklace/cell phone/marijuana in the SUV) demonstrated Bunn’s guilt. The jury would not have unjustifiably inferred from the conflict between the defenses of Bunn and Minor alone that Bunn was guilty. Under such circumstances, the trial court was not required to sever their trials and Bunn’s attorney could have reasonably concluded a motion for severance would be futile. (People v. Frye (1998) 18 Cal.4th 894, 985 [not ineffective assistance to refrain from futile motions], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In addition, it appears Bunn’s trial counsel may have had a reasonable tactical justification for refraining from making a dubious motion for severance. Minor’s defense was that Bunn and Mylove-Smith shot Torres, even though there was no physical evidence tying Mylove-Smith to the shooting. And, Minor claimed he bear-hugged Bunn to get him away from Torres’s truck. Bunn had blood on his clothes, shoes, and hands and there was blood dripping onto the ground from Torres’s truck, but Minor got Torres’s blood only on his fingers. In closing argument, Bunn’s counsel pointed out these problems with Minor’s defense to the jury. He argued the physical evidence better fit Bunn’s description of the events. Thus, it appears Bunn’s counsel sought to use the implausibility of Minor’s defense to encourage the jury to accept Bunn’s version of the events. Such implausibility may have been underscored by the manner in which Minor testified. We cannot tell from a cold record Minor’s demeanor on the stand, but it may have been that Bunn’s counsel believed it was likely Minor would testify at trial and felt it would be helpful to Bunn. And if Minor decided not to testify, his pretrial statements to police pointing the finger at Bunn would not have been admissible against Bunn in a joint trial. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476].)
Bunn has not shown ineffective assistance of counsel by his attorney’s failure to move for severance.
B. By Failing To Object And Move For Exclusion Of Evidence
Background
Minor’s counsel asked Bunn during cross-examination whether in addition to marijuana, he also sold crack cocaine. Bunn said he did not. Minor’s counsel then asked Bunn if he had a picture of crack cocaine on his phone. Bunn said that it was not crack cocaine, but soap. Referring to an exhibit of a photograph found on Bunn’s cell phone, counsel again asked whether the picture was of crack cocaine. Bunn said again that it was not, although it looked similar. He denied knowing what crack cocaine looks like based on his sale of it. He said he knew the photo was of soap because he bought the soap and took the picture. There was no objection to this questioning.
Subsequently, Minor’s counsel asked Bunn if he knew what a “Swisser” is. Bunn replied that it is a cigar that has had the tobacco removed and replaced with marijuana. Bunn denied giving Swissers to kids. Counsel showed Bunn another photo from his cell phone that showed a small baby with a Swisser in his mouth. Bunn claimed a friend had taken the picture of the friend’s baby and sent it to Bunn. Bunn kept it on his phone because he thought it was “kind of funny[.]” There was no objection to this questioning.
Minor’s counsel then asked Bunn about another photo on his cell phone that depicted a small girl. Bunn replied that it was his friend’s niece. Bunn was over at her house and took the picture. There was no objection to the questioning.
Analysis
Bunn claims ineffective assistance of counsel in his trial counsel’s failure to object and move for exclusion of the evidence regarding his possession/sale of rock cocaine, his possession on his cell phone of a photograph of a baby with a “Swisser” in his mouth, and a photograph of a little girl. He claims the evidence was irrelevant, more prejudicial than probative, and improper character evidence.
Where it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we may do so without addressing whether counsel’s performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699]; In re Alvernaz (1992)2 Cal.4th 924, 945.) We do so here. After a review of the record, including Bunn’s testimony in his own defense, we conclude there is no reasonable probability the result would have been more favorable to Bunn if counsel had objected and the evidence had been excluded. The evidence against Bunn was incredibly strong and his defense, while it arguably accounted for the physical evidence, was an unlikely version of the events. No reasonable jury would have convicted Bunn on the basis of the three photos on his cell phone if it was not already convinced of his guilt based on the other evidence.
III.
The LWOP Sentence Imposed On Bunn and Minor Is Neither Unconstitutional Nor An Abuse Of Discretion
Background
Because defendants were under 18 when they murdered Torres (Bunn was 17 years and 5 months old; Minor was 17 years and 8 months old), the People could not exact the ultimate penalty. Instead, the sentence was to be life without parole, unless the trial court elected in its discretion to further mitigate the punishment by imposing a sentence of 25 years to life. (§ 190.5, subd. (b); People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142 (Guinn).) To the extent they are relevant, the mitigating circumstances defined in section 190.3 and rule 4.423 of the California Rules of Court provide guidelines for the exercise of the trial court’s discretion. (Guinn, supra, at pp. 1142-1143.)
Further rule references are to the California Rules of Court.
At the sentencing hearing, the trial court indicated it had read and considered the probation reports for both defendants, the letters filed on behalf of Minor, and the parties’ various proposed amendments to the probation reports.
Both Bunn and Minor argued that a LWOP sentence would be cruel and unusual punishment and asked the trial court to exercise its discretion to impose a sentence of 25 years to life under section 190.5. Both emphasized their youth. Minor stressed his lack of any prior record of criminal offenses, claiming the LWOP sentence should be reserved for the “worst of the worst,” which he was not. In his sentencing memorandum, Minor noted his father had been murdered when he was only four years old, he had completed 11th grade and was the father of a one-year-old daughter. He attached a number of letters of support to his sentencing memorandum that characterized Minor as a good and helpful person who had made a mistake. Bunn noted he had no other violence in his background and no other felony conviction. His probation report reflects he sustained only one prior juvenile adjudication for misdemeanor possession of a controlled substance. (Welf. & Inst. Code, § 11377, subd. (a).) Bunn argued the current trend of authority was to consider juvenile offenders less culpable due to their relative immaturity, lack of judgment, vulnerability to negative influences and outside pressure, and lack of formed character traits. Bunn claimed that in addition to these factors, this crime reflected a true lack of sophistication.
The prosecutor asked the trial court to impose the presumptive LWOP sentence under section 190.5, subdivision (b), on both defendants. The prosecutor emphasized this murder was not a spontaneous rash decision, but an intentional deliberate execution for which neither Bunn nor Minor ever took responsibility. She suggested defendants have a “total disrespect for human life.” The prosecutor then went through numerous factors in aggravation as listed in rule 4.421 that she claimed completely outweighed the circumstances in mitigation of youth and Minor’s lack of criminal record.
The trial court began its comments on sentencing by finding no evidence of disability or cognitive impairment in either defendant. It noted their age had been taken into consideration by the statutory preclusion of the death penalty. The court then rejected the claim that a LWOP sentence was cruel and unusual, finding “that in no comparison, whether it is objective or subjective, is this penalty grossly disproportionate so it would warrant this court striking the possibility, and precluding the consideration of a [LWOP].” It stated it had considered the nature of the offense, which it found to be an intentional killing.
The trial court then considered whether to exercise its discretion to reduce the presumptive LWOP sentence under section 190.5, subdivision (b). It specifically noted it would not consider the defendants’ use of firearms in the murder because it was the basis for the sentence enhancement under section 12022.53, subdivision (d). In an abundance of caution, the trial court stated it would also not consider Bunn’s juvenile adjudication and probation because it was not a violent offense. The trial court then went through each of the possible mitigating factors listed in section 190.3 and found them either inapplicable or in the case of defendants’ age, that it did not warrant “mitigating punishment any further than to preclude the death penalty.” The trial court summarized the circumstances of the crime and considered the personal characteristics of the defendants. The trial court stated it could not find sufficient mitigating circumstances to warrant not imposing the LWOP sentence. The trial court sentenced both defendants to state prison for an indeterminate term of LWOP, plus a consecutive 25-years-to-life term for the firearm enhancement.
Analysis
On appeal both defendants claim the trial court erred in rejecting their constitutional argument for a reduced sentence under section 190.5. We disagree, as we shall explain.
A punishment violates the California Constitution “if, although not cruel or unusual in its method, 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, fn. omitted.) In applying this principle, we look to: (1) the nature of the offense and the offender; (2) a comparison with the penalty for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-429.) “Defendant must overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, ‘[f]indings of disproportionality have occurred with exquisite rarity in the case law.’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 972.)
“The Eighth Amendment [to the United States Constitution], which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117].) This principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144, 156].)
Bunn argues his LWOP sentence is cruel and unusual punishment relying on the discussion of the United States Supreme Court in Roper v. Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1] (Roper). Roper holds the death penalty is excessive punishment when imposed on a person who was under 18 years old when the underlying crime was committed. Thompson v. Oklahoma (1988) 487 U.S. 815 [101 L.Ed.2d 702] (Thompson) earlier reached the same conclusion with respect to minors under 16 years old. Minor cites Thompson in his argument that mixes federal and state constitutional analysis with his claim of abuse of discretion.
“Roper and Thompson are death penalty cases in which the state court had upheld imposition of that penalty on a person who was a juvenile when the homicides were committed. ‘“‘[D]eath is different.’”’ (Kansas v. Marsh (2006) 548 U.S. [163], [180] [165 L.Ed.2d 429, 126 S.Ct. 2516, 2528]; see Gregg v. Georgia (1976) 428 U.S. 153, 188 [49 L.Ed.2d 859, 96 S.Ct. 290[9]].) Roper, Thompson and other cases focus on and are replete with references to the excessiveness of the death penalty when applied to a minor. (See, e.g., Roper, supra, 543 U.S. at pp. 568, 571, 572; Thompson, supra, 487 U.S. at p. 836 (plur. opn.).) Justice O’Connor’s concurring opinion in Thompson, in which she cast the fifth and decisive vote for the judgment in that case, pointed out the significance of the distinction: ‘The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.’ (Thompson, at p. 856.) [¶] The high court’s focus on the distinction between execution and lesser sanctions also is shown in passages from Atkins v. Virginia (2002) 536 U.S. 304, 306 [153 L.Ed.2d 335, 122 S.Ct. 2242], in which the court held that the death penalty cannot be imposed on mentally retarded persons. The court recognized that mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes, and while capital punishment is inappropriate for such persons, ‘[t]heir deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.’ (Id. at p. 318.)” (People v. Demirdjian (2006) 144 Cal.App.4th 10, 14-15 (Demirdjian).)
Like the court in Demirdjian, we reject the claim that United States Supreme Court authorityrequires a conclusion that an LWOP sentence for a 17-year-old juvenile who commits a special circumstance murder is cruel and unusual punishment under the federal Constitution. (Demirdjian, supra, 144 Cal.App.4th at p. 15.) We agree with Guinn, supra, 28 Cal.App.4th 1130, which upheld a sentence of life without parole in the case of a defendant who committed an unprovoked murder at age 17: “While we agree that the punishment is very severe, the People of the State of California in enacting the provision [section 190.5]... made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment.” (Id. at p. 1147.)
Nor do we find defendants’ sentences violate the California constitutional prohibition of cruel or unusual punishment. (Cal. Const., art. I, § 17; In re Lynch, supra, 8 Cal.3d 410, 424.)
The circumstances of the murder and defendants themselves fully justify the imposition of the LWOP sentence. The record shows Bunn knew Torres had a substantial amount of marijuana left after his sale to Bunn the previous day. Defendants arranged the meeting with Torres at Chorley Park to “purchase” the marijuana, brought two guns, but not the required money, and waited over 45 minutes for Torres to arrive. When he did, they approached him and each fatally shot him at very close range. The location of the entry wound behind Torres’s ear suggests Bunn shot Torres from behind. Nineteen-year-old Torres, unarmed, was still seat-belted into the driver’s seat of his truck. Defendants then robbed Torres of his drugs, necklace and phone, leaving the profusely bleeding Torres for dead. This was a cold, calculated, and intentional murder for the purposes of robbery.
Defendants were only months away from reaching the age of majority when they committed this murder. As the trial court recognized, there is nothing in the record to show that either defendant suffered from a mental disability or cognitive impairment. Defendants never took responsibility for their crime and expressed no remorse. The trial court found defendants imitated a gangster lifestyle. Contrary to Minor’s claim, this case is not similar to People v. Dillon (1983) 34 Cal.3d 441, disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1186 (Dillon).
In Dillon, the California Supreme Court considered an attempted raid of a marijuana field by a group of teenagers. (34 Cal.3d at pp. 451-452.) Dillon, a 17-year-old high school student, had gone with some companions to steal the marijuana. Dillon fatally shot a man who was guarding the marijuana crop. (Id. at p. 452.) Dillon testified that he panicked and shot the victim because the man was armed, because Dillon believed the guard had just shot two of his friends, and because he believed the man was about to shoot him. (Id. at pp. 482-483.) Dillon was unusually immature, intellectually and emotionally. (Id. at pp. 483, 488.) Dillon’s companions all received minor sentences in the incident, Dillon had no prior record, the jury had expressed some reluctance at finding Dillon guilty of first degree felony murder, and both the judge and the jury believed a life sentence was excessive in relation to Dillon’s true culpability. (Id. at pp. 487-488.)
It is true that in this case that both defendants were juveniles. It is true Minor had no prior record of arrest or conviction. Bunn had only a misdemeanor nonviolent conviction. However, there was no evidence defendants were unusually immature; the circumstances of the crime reflect they chose their victim and planned his execution for money and marijuana. This was not “a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger.” (Dillon, supra, 34 Cal.3d at p. 488.) Defendants’ LWOP sentences were not disproportionate to their culpability. (See People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-89.)
Defendants argue only the nature of the offense and the offender and not the two other prongs of analysis for a claim of California cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d 410, 425-429.) We will likewise limit our discussion.
We also reject the related claim by defendants that the trial court abused its discretion in refusing to exercise its discretion under section 190.5, subdivision (b), to reduce their sentence to an indeterminate term of 25 years to life.
First, we disagree with defendants that the trial court ignored their age. The trial court was aware and discussed their age, but found section 190.5 already took that into account in precluding the death penalty. It found their age did not require any “further” mitigation of the prescribed penalty in light of the circumstances of the crime.
The record does not support the claim that the trial court considered only the factors listed in section 190.3 and not those mitigating factors listed in rule 4.423. As we described in section III, the trial court expressly went through each of the possible mitigating factors listed in section 190.3, stated it had read and considered the probation reports (which had discussed the factors in aggravation and mitigation under the applicable rules), and it stated it had read and considered the letters filed in support of Minor. The defendants argued for leniency; the prosecutor argued the factors in aggravation completely outweighed the circumstances in mitigation of youth and Minor’s lack of criminal record. There is no requirement for the trial court to state on the record its consideration of each of the factors identified in the reports and argued to it.
The trial court summarized the circumstances of the crime and considered the personal characteristics of the defendants. We disagree with Minor that the trial court displayed any “animus inconsistent with judicial objectivity[.]” We find the court’s comments about defendants’ “sagging their pants” and a codefendant’s willingness to bring “his mom’s car home stinking of marijuana” to be part of its observations of the defendants’ demeanor and its findings regarding their attitude, which is a personal characteristic relevant to an assessment of their culpability. (See Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254 [at sentencing, trial court may consider its own impressions of matters such as the defendant’s demeanor].) The trial court appropriately noted defendants’ opportunities to reconsider their intention to rob and kill Torres. Instead they intentionally murdered him. Their subsequent actions reflected no remorse. The court looked for some explanation of their actions “other than they were just pure evil” and tried to look for something good in their character. Instead, it saw “Bunn [throw] Minor under the bus trying to save himself” and Minor “ready to throw Mylove-Smith under the bus.” The trial court said “that’s just cold.” The trial court stated it could not find sufficient mitigating circumstances to warrant not imposing the LWOP sentence. The trial court did not abuse its discretion in reaching this conclusion.
IV.
The Trial Court Erred In Denying Defendants Custody Credit
Both defendants contend the trial court erred when it denied them custody credit for time served. Defendants contend section 2933.2 prohibits only conduct credits and not custody credit. They claim they were entitled to full credit for every day served in custody under section 2900.5. (People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.) We accept the People’s concession of the error. Defendants must be given credit for the undisputed 666 days of presentence custody time they served. We shall order the abstracts of judgment to be corrected to reflect such credit under section 2900.5.
V.
The Trial Court Erred In Imposing A Parole Revocation Fine
Defendants contend, and the People concede, the trial court erred by imposing a parole revocation fine (§ 1202.45) even though defendants were sentenced to prison for life without the possibility of parole. We accept the People’s concession. “[A] parole revocation fine is inapplicable where there is no possibility of parole.” (People v. DeFrance (2008) 167 Cal.App.4th 486, 505; accord, People v. Ybarra (2008) 166 Cal.App.4th 1069, 1097.) We shall order the section 1202.45 fines stricken.
DISPOSITION
The judgments of Bunn and Minor are modified to award 666 days of actual custody credit under Penal Code section 2900.5. The parole revocation fine of $10,000 is stricken in each of their cases. In all other respects, the judgments are affirmed.
The clerk of the trial court is directed to prepare amended abstracts of judgment for each defendant consistent with this opinion and to then forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., ROBIE, J.