Opinion
B158758.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE OCTAVIO CERVANTEZ, Defendant and Appellant.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jose Octavio Cervantez of attempted, willful, deliberate, premeditated murder in violation of Penal Code sections 664 and 187 (count 1); assault with a firearm in violation of section 245, subdivision (a)(2) (count 2); and attempted second degree robbery in violation of sections 664 and 211 (count 3). With respect to counts 1 and 3, the jury found true the allegations that appellant had personally and intentionally discharged a firearm, proximately causing great bodily injury to the victim within the meaning of section 12022.53, subdivision (d); that appellant had personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and that appellant had personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). With respect to count 2, the jury found true the allegations that appellant had personally used a firearm within the meaning of section 12022.5, and that appellant had inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
On count 1, the trial court sentenced appellant to the term of life with the possibility of parole and a 25-year term for the firearm use allegation pursuant to section 12022.53, subdivision (d). The court stayed the great bodily injury enhancement. On count 2, the court sentenced appellant to the upper term of four years and imposed an additional term of three years pursuant to section 12022.7, subdivision (a) as well as 10 years for the enhancement pursuant to section 12022.5, subdivision (a). The court stayed the 17-year sentence on count 2 pursuant to section 654. On count 3, the court sentenced appellant to the high term of two years six months, imposing additional terms of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d) and three years for the great bodily injury enhancement. The court stated that the sentence in count 3 was to run concurrently with the sentence in count 1.
On appeal, appellant contends: (1) his conviction for attempted murder should be reversed and retrial barred because there was no substantial evidence of a specific intent to kill; (2) the jury finding of premeditation should be stricken because there was no evidence of a preconceived design or careful thought or reflection preceding the shooting, and the matter should be remanded for the imposition of a determinate term on count 1; and (3) as applied to appellant, the imposition of 25 years to life for a gun enhancement constitutes cruel and/or unusual punishment under the United States and California Constitutions, and the enhancement should be stricken and the sentence reduced accordingly.
FACTS
At approximately 11:00 p.m. on July 3, 1999, Ramon Ramirez was walking home from his grandsons birthday party in the company of his girlfriend and a male friend. They walked along San Pedro Street, and as they arrived at 52nd Street, a man came out of an alley. The man had a gun in his hand, and he approached Ramirez, pointing the gun at Ramirezs face from a distance of approximately four feet. The man said to Ramirez, "Give me the money." At appellants trial, Ramirez identified appellant as the man. Ramirez told appellant that he had no money, and appellant shot Ramirez in the face. Appellant fired five or six times in rapid succession. Ramirez was hit in the face, the chest, the hand, and the side. Appellant ran back into the alley.
Ramirez looked for his girlfriend, but sat down on the curb because he was bleeding badly and feeling weak. Paramedics and police arrived. Ramirez told police that appellant had a shaved head and had run into the alley. He said appellant had white skin and was wearing a checkered shirt and dark pants. He believed appellant was 15 or 16. Ramirez lost consciousness and awoke eight days later in the hospital. He had tubes throughout his body and could not speak. He remained in the hospital for 22 days. He suffered a great deal of pain and the loss of sensation in the side of his face. He lost two months of work and continues to have problems with lifting, which he must do in his work as a carpenter.
While in the hospital, Ramirez remembered that appellant had tattoos on his forehead. The area of the attack was illuminated, and Ramirez got a good look at appellants face. At trial, Ramirez stated appellant was four to five inches shorter than himself, and Ramirez measures five feet nine inches. Ramirez testified that he was not close enough to appellant to be able to smell alcohol on appellants breath. When asked if he had received any indication as to whether appellant had used drugs or had drunk alcohol that evening, Ramirez replied in the negative.
Los Angeles Police Department Officer Howard Sebring received the call to go to San Pedro Street between 52nd and 53rd Streets on the night of the shooting. Sebring saw Ramirez walking down the middle of the street holding his chest. He was bleeding a lot from the right side of his face. Ramirez had several bullet holes in his shirt, which was covered with blood. Ramirez was crying and screaming, and Sebring believed Ramirez might not survive. Ramirez told Sebring that he was shot by a male Hispanic with a bald head who was approximately 16 years old and who was wearing a black and white plaid shirt and dark pants. Sebring immediately broadcast the description and informed the flight officer of a helicopter hovering above the scene.
Debra Kickbush, the tactical flight officer in the helicopter, spotted an individual on 53rd Street. The individual then walked into the alley between 52nd and 53rd Streets. When Kickbush saw the individuals clothing, she believed he might be the suspect and illuminated him with a spotlight. Kickbush saw the suspects arms go to his chest area. She saw his head pop back and his arms go out to the side. She observed what appeared to be a rifle fly out of his hand before the suspect dropped to the ground. Kickbush then used her binoculars to observe the suspect lying on the ground with what appeared to be a gunshot wound. She observed the suspect until officers arrived at his location.
Officer Corey Farell arrived at the location — less than a block from the shooting — as directed by Officer Kickbush and found a male Hispanic lying on the ground. At trial he identified the individual as appellant. Farell found a .22-caliber, bolt-action rifle with the stock sawed off and a .22-caliber handgun lying near appellant. Appellant had suffered a gunshot wound to his head. Farell described appellant as five feet five inches in height with a shaved head, a light complexion, and a tattoo on his forehead. He was wearing a black checkered shirt and dark pants. He had .22-caliber live ammunition in his pocket. Approximately five to seven off-white, rock-like solids resembling cocaine were also found on appellant.
At trial, the parties stipulated that a Juan Hernandez made a statement to police regarding appellant. Hernandez said he was at a party at 342 East 52nd Street on July 3, 1999, when he observed appellant intoxicated and creating a disturbance. Hernandez told appellant to leave the party, and appellant walked to the street and fired rounds into the air from a small handgun. Hernandez then saw appellant walking southbound on San Pedro Street from 52nd Street. Hernandez called the police.
Appellant presented no evidence in his behalf.
DISCUSSION
I. Evidence of Specific Intent to Kill
Appellant argues that there was no substantial evidence that he specifically intended to kill Ramirez when appellant fired at him, and his conviction violated his rights under the due process clause of the Fourteenth Amendment to the United States Constitution. Appellant claims he shot randomly while in a state of severe intoxication and after using drugs. Appellant made no threats to kill Ramirez and made no gang-related statements. According to appellant, the manner of shooting Ramirez and the fact that appellant later shot himself in the head show that the shooting of Ramirez was a spontaneous act without the intent to kill.
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it "`must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.) "Substantial evidence" is 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." (Id. at p. 578.)
Given this courts limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the finding. If the finding is supported by substantial evidence, we must give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard for securing a reversal is just as high when the prosecutions case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal. 4th 764, 792.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing courts opinion that contrary findings might also have been reasonable does not require a reversal. (Id. at p. 793.)
Appellants conduct in shooting Ramirez in the face from such a close distance created a strong inference that the killing was intentional. (See People v. Lee (1987) 43 Cal.3d 666, 679 [shooting at officers from a distance of 15 to 20 feet is "`near "point blank" range" and shows specific intent to kill]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [mere act of deliberately and repeatedly firing a gun at someone in a manner that could cause death is enough to find the perpetrator intended to kill].) Appellant here presented no evidence that the shooting was unintentional. The evidence showed that he approached Ramirez, asked for money, and shot Ramirez in the face when Ramirez said he had no money. Appellant continued to shoot Ramirez at close range in critical areas of the body such as the chest. Because there was sufficient evidence of intent to kill so as to justify an attempted murder conviction, reversal is not required.
II. Evidence of Premeditation
Appellant argues that, if this court finds substantial evidence of intent to kill, we must strike the jurys finding of deliberation and premeditation. Appellant contends there was no evidence that the shooting was planned, part of a preconceived design, or preceded by careful thought or weighing of considerations.
As stated previously, our task is to "`view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Johnson, supra, 26 Cal.3d 557, 576.)
CALJIC 8.20 has been held to correctly define "deliberate and premeditated murder." (People v. Goldbach (1972) 27 Cal.App.3d 563, 569.) CALJIC No. 8.67, read in the instant case, is almost identical to CALJIC 8.20, but it addresses willful, deliberate, and premeditated attempted murder. CALJIC 8.67 defines "willful" to mean "intentional," and "deliberate" to mean "formed . . . as a result of careful thought and weighing of considerations for and against the proposed course of action." The word "premeditated" means "considered beforehand." CALJIC No. 8.67 instructed the jury that "[t]o constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being." The instruction also told the jury that: "The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation." (CALJIC No. 8.67.)
Premeditation and deliberation may be shown by circumstantial evidence. (People v. Anderson (1968) 70 Cal.2d 15, 25 (Anderson).) The Anderson court identified three types of evidence bearing on premeditation and deliberation as follows: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as `planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection and `careful thought and weighing of considerations rather than `mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design to take his victims life in a particular way for a `reason which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27.)
Later Supreme Court decisions have emphasized that the factors set out in Anderson are merely, as stated, categories of evidence to be used as a framework in analyzing the sufficiency of the evidence of premeditation and deliberation. (See People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez); People v. Thomas (1992) 2 Cal. 4th 489, 517.) The Perez court emphasized that these factors are by no means the exclusive means of showing premeditation. (Perez, at p. 1125.)
Following the Anderson guidelines, we conclude the jury could reasonably have inferred from the evidence that the shooting was premeditated and deliberate. With respect to planning, the evidence showed that appellant had planned an armed robbery and had looked for or waited for his victims. When he confronted his victim, appellant pointed a loaded gun at his face while asking for money. Appellant knew how to fire a gun, as demonstrated by his firing of a handgun into the air outside the party he left shortly before the robbery. As for appellants conduct with the victim, when frustrated by Ramirezs refusal to hand over any money, appellant shot him at point-blank range without asking for money again. Appellant continued to shoot Ramirez five times. The manner of the shooting was "particular and exacting" in the sense that Ramirez was shot in the head, in the chest, and in the side — areas of the body where wounds can be fatal. These facts provide substantial evidence that the shooting that constituted the attempted murder was willful, premeditated and deliberate.
The separate Anderson factors need not be accorded any particular weight, nor must they be considered in some special combination. (People v. Sanchez (1995) 12 Cal.4th 1, 33.) The fact that elaborate planning activity is not in evidence does not foreclose finding sufficient evidence of premeditation. (People v. Millwee (1998) 18 Cal.4th 96, 134.) As stated in CALJIC No. 8.67, premeditation and deliberation are not measured by the duration of time. (People v. Bolin (1998) 18 Cal.4th 297, 332.) Appellant may have arrived at his decision to commit the act in a short period of time, but his act does not bear the characteristics of a rash impulse. Appellant approached Ramirez with a loaded gun pointed at Ramirezs face, shot his victim five times at close range, and then fled. Appellants argument that there was insufficient evidence of premeditation and deliberation is without merit.
III. Cruel and Unusual Punishment
Appellant argues that, as applied to him, the 25-years-to-life enhancement pursuant to section 12022.53, subdivision (d) constitutes cruel and unusual punishment under the United States and California Constitutions. He asserts that the enhancement must be stricken.
Appellant points out that psychological tests performed on him during various stages of the proceedings for the current offenses have shown him to be mildly retarded or developmentally disabled with an IQ estimated to be between 48 and 69. He was 15 years old at the time of the shooting, and he has a history of substance abuse, auditory hallucinations, and suicidal ideation.
Appellant asserts that it is within the province of the courts to determine if the punishment mandated by the Legislature for certain offenses is constitutional as applied to the particular defendants before them. Appellant employs the analysis set out in In re Lynch (1972) 8 Cal.3d 410 (Lynch) to argue that his sentence is unconstitutional under the California Constitution.
According to Lynch, in assessing whether a sentence is cruel and unusual under California law, it is useful to: (1) examine the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (Lynch, supra, 8 Cal.3d at p. 425); (2) compare the challenged punishment with punishments prescribed for more serious offenses in the same jurisdiction (id. at p. 426); and (3) compare the challenged punishment with punishments prescribed for the same offense in other jurisdictions (id. at p. 427).
Throughout his analysis based on Lynch, appellant relies on People v. Dillon (1983) 34 Cal.3d 441 (Dillon). In Dillon, the California Supreme Court considered whether the life sentence imposed on a 17-year-old convicted of first degree felony murder violated the California Constitutions prohibition against cruel or unusual punishment. (Id. at p. 450.) In that case, an unusually immature 17-year-old high school student and his friends attempted to rob a marijuana farm. (Id. at p. 451.) Separated from his companions, Dillon heard shotgun blasts and feared two of his friends had been shot by an armed man guarding the crop. The guard approached Dillon, who was unable to retreat or hide, and it appeared to Dillon that he pointed a shotgun at him. Believing he was about to be shot, Dillon panicked and fatally shot the guard. (Id. at pp. 482-483.) Dillon had no prior record. (Id. at p. 486.) He was perceived by a clinical psychologist, the judge, and the jury to be uniquely immature. (Id. at pp. 483-486.) The jury expressed reluctance and unease at finding Dillon guilty of first degree felony murder. (Id. at p. 484.) The trial court was of the opinion that the evidence did not support a first degree murder conviction outside the felony murder context. (Id. at p. 486.)
The California Supreme Court found the punishment unconstitutionally cruel and unusual, and ordered that Dillon be punished as a second degree murderer. (Dillon, supra, 34 Cal.3d at pp. 488-489.) The court observed that, "[w]ith respect to `the nature of the offense, we recognize that when it is viewed in the abstract robbery-murder presents a very high level of such danger, second only to deliberate and premeditated murder with malice aforethought. In conducting this inquiry, however, the courts are to consider not only the offense in the abstract — i.e., as defined by the Legislature — but also `the facts of the crime in question [citation] — i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts." (Id. at p. 479.)
With respect to the nature of the offense and the offender, therefore, we evaluate the totality of the circumstances surrounding the commission of the current offense, as did the Dillon court. We also consider appellants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
We conclude that both the circumstances of appellants offense and his personal characteristics indicate that appellant represents a danger to society, and that his sentence is not unconstitutionally cruel and unusual punishment as applied to appellant.
The evidence showed that appellants offense was characterized by extreme violence and callousness. Appellant approached three persons with his gun drawn, demanded money, and then shot Ramirez repeatedly when his demand was not satisfied. Appellant demonstrated an inability to control his impulses and a complete indifference to the consequences of his actions. Unlike the defendant in Dillon, appellant had no reason to fear for his own safety and did not face down the barrel of a shotgun. Appellants behavior during the current offense was that of an extremely dangerous individual.
With respect to the nature of the offender, it is true that appellant has been shown to have a low IQ, and he was quite young at the time of the shooting. Nevertheless, appellant was found unfit for adjudication in juvenile court on July 17, 2000, when he was 16 years old. Appellants criminal record shows that in August 1997, a petition was sustained against appellant alleging that he committed the offense of grand theft of a person. He went AWOL from a youth center between August and September 1997, and from a placement in March 1999. The probation report indicates appellant was an admitted gang member. He was found with two guns — a sawed-off rifle and a handgun — as well as a significant amount of cocaine. Prior to Ramirezs shooting, after appellant had been ousted from a party for creating a disturbance, he fired shots into the air. Appellant is the type of criminal to whom section 12022.53 was clearly meant to apply.
With respect to the last two Lynch techniques, which deal with "intercase" review, we question whether any analysis is still required. The California Supreme Court has held in death penalty decisions subsequent to Lynch that intercase proportionality review "is not mandated under our state Constitution in order to ensure due process and equal protection, nor is it required in order to avoid the infliction of cruel or unusual punishment." (People v. Crittenden (1994) 9 Cal.4th 83, 156; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1182; People v. Bradford (1997) 15 Cal.4th 1229, 1384.) The court has indicated that all that is required is "intracase" review, i.e., an evaluation of whether the sentence is "grossly disproportionate" to the offense. (People v. Bradford, at p. 1384.)
Appellant makes no specific argument for his federal claim, but points out that, under the federal Constitution, a sentence constitutes cruel and unusual punishment if it is "`grossly disproportionate" to the crime, citing Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin). In Harmelin, even those justices recognizing a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to particular sentences are "`"exceedingly rare"" because of the "relative lack of objective standards concerning terms of imprisonment . . . ." (Id. at p. 1001 (conc. opn. of Kennedy, J.).) We do not believe, for the reasons indicated, that appellants is one of those rare cases. Appellants lack of a long history of serious felony convictions and his mental deficiency are outweighed by the gravity of the offense and the circumstances surrounding its commission.
Although appellant argues only that the punishment mandated by section 12022.53 is unconstitutional as applied to himself, we note that the Legislature has 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." (People v. Martinez (1999) 76 Cal.App.4th 489, 497-498; see also People v. Alvarez (2001) 88 Cal.App.4th 1110, 1117-1119.)
Keeping in mind the legislative purpose in enacting the statute, we conclude that appellants individual culpability in committing the offense with a firearm was not "attenuated" like that of the defendant in Dillon. (Dillon, supra, 34 Cal.3d at p. 486.) As noted, appellant was not in a situation where he felt trapped and feared for his life. In Dillons version of events, which the trial court and jury found credible, Dillon fired at his victim without aiming directly at him and without knowing whether the bullets would hit the victim or not. (Id. at p. 483.) Appellant shot at Ramirezs face from a distance of four feet and kept on shooting. Given appellants apparent tendency to arm himself (he was found with two guns) and fire his weapons, we do not believe his individual culpability is so diminished by his low intelligence that the imposition of the firearm enhancement constitutes cruel and unusual punishment. In fact, the nature of the offense and the offender supports imposition of the life sentence and 25-year enhancement, and we must reject appellants assertion that his sentence violates the California Constitution. As the foregoing indicates, appellants punishment was not so disproportionate "that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch, supra, 8 Cal.3d at p. 424.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J. and ASHMANN-GERST, J. --------------- Notes: All further references to statutes are to the Penal Code unless stated otherwise.