Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD211030 Frank A. Brown, Judge.
IRION, J.
Defendant Sean Michael Couch challenges his conviction of first degree felony murder and corresponding sentence where the underlying felony was carjacking. Couch contends (1) the murder conviction must be reversed because the carjacking merged with the associated homicide and therefore cannot constitute the basis for felony murder; and (2) the imposition of a sentence of 25 years to life in prison constitutes cruel and/or unusual punishment in violation of the state and federal Constitutions. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Couch and Erik Aaron Iwan were at a homeless camp in the Hillcrest area of San Diego drinking beer one afternoon. They left together that evening to steal a pickup truck for which Iwan had acquired a key a few months earlier. They proceeded on foot to the house in the University Heights area where the pickup truck was parked.
After watching the house from across the street for a short time and seeing a woman enter the house, Couch got into the truck, started it and proceeded to back it out of the driveway as Iwan ran down the street. Upon hearing the truck start, Anne Ancibor and Richard Hoagland, the owner of the pickup truck, bursted out of the house, chased the truck and shouted at Couch to stop. Ancibor then returned to the house to call the police while Hoagland continued to chase the truck and order Couch to stop and get out of the truck. When Couch stopped briefly at the intersection where Iwan was standing, Iwan tried to get into the truck but could not and ran away; Hoagland jumped into the bed of the pickup truck and continued to order Couch to stop.
Couch did not stop but instead sped down Florida Street, swerving from side to side and crashing into several parked cars along the way. Couch also collided with a car in an intersection, injuring its driver and destroying the car. Hoagland was tossed about in the bed of the truck as he continued to shout at Couch and also to cry out for help.
Eventually, Couch crashed the truck into a car, which caused the truck to flip into a tree and to eject Hoagland. When the truck finally came to rest, Couch fled the scene, and Hoagland lay dead on the ground about 70 feet away from the truck. Police soon apprehended a bloodied and breathless Couch a few blocks away. Couch initially told paramedics he had been injured in a fist fight but later admitted he had been in a truck accident, though he denied he was driving the truck.
Couch was charged with one count of murder (Pen. Code, § 187, subd. (a)), one count of hit-and-run driving with injury (Veh. Code, § 20001, subd. (a)), and seven counts of hit-and-run driving (Veh. Code, § 20002, subd. (a)). The People tried the murder charge on alternative felony-murder theories, one based on burglary and the other on carjacking. (See Pen Code, § 189.) A jury found defendant guilty on all counts. The trial court denied Couch's motion to reduce the verdict to voluntary manslaughter or second degree murder and sentenced Couch to prison for 25 years to life on the first degree murder conviction and imposed lower concurrent terms for the other convictions.
Carjacking, a relatively new offense, "is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (Pen. Code., § 215, subd. (a); see People v. Antoine (1996) 48 Cal.App.4th 489, 494 (Antoine) [noting carjacking was made a crime in 1993].)
DISCUSSION
Couch challenges both his conviction of first degree murder and his sentence of 25 years to life in prison. We will consider each challenge in turn.
A. The First Degree Murder Conviction Could Properly Be Based on a Killing Committed During a Carjacking
Couch contends his murder conviction must be reversed because the trial court instructed the jury on a legally incorrect theory of felony murder predicated on the crime of carjacking. He bases this argument solely on the merger doctrine first adopted in People v. Ireland (1969) 70 Cal.2d 522 (Ireland), where our Supreme Court held that "a second degree felony-murderinstruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact with the offense charged." (Id. at p. 539, first italics added.) According to Couch, the Supreme Court's subsequent decisions in People v. Chun (2009) 45 Cal.4th 1172 (Chun), which held the merger doctrine precludes assaultive-type crimes from serving as the basis of a second-degree felony-murder instruction, and People v. Wilson (1969) 1 Cal.3d 431 (Wilson), which extended the Ireland merger doctrine to bar a first degree felony-murder instruction based on assault with a deadly weapon, together preclude the use of carjacking as the predicate offense for a felony-murder instruction because carjacking has an assaultive aspect that causes it to merge with any resultant killing. We disagree, because neither Chun nor Wilson applies here.
The predicate offense in Ireland was assault with a deadly weapon, which the court held was so related to the resulting homicide that the two crimes merged. (Ireland, supra, 70 Cal.2d at pp. 538-540.)
As we discuss later, Wilson was overruled prospectively by People v. Farley (2009) 46 Cal.4th 1053 (Farley). (See pp. 7-9, post.)
1. Chun Does Not Apply to First Degree Felony Murder
Couch may not rely on Chun's extension of the merger doctrine to assaultive-type crimes because Chun is limited to cases of second degreefelony murder. The Chun court "reconsider[ed] the contours of the so-called merger doctrine" in the context of a conviction for second degree felony murderbased on the crime of shooting at an occupied motor vehicle and concluded the current state of the law was "untenable." (Chun, supra, 45 Cal.4th at p. 1178.) Accordingly, it held that "all assaultive-type crimes... merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction." (Ibid., italics added.) The court noted that the second degree felony-murder rule "is an interpretation of [Penal Code] section 188's 'abandoned and malignant heart' language" and that courts developed the merger doctrine as part of that interpretation to restrict the scope of the second degree felony-murder rule and "ameliorate its perceived harshness." (Id. at pp. 1184, 1188; see also Farley, supra, 46 Cal.4th at p. 1117 ["the merger doctrine developed as a judicial interpretation of [Penal Code] section 188"].) It then carefully stated that "[b]ecause first degree felony murder is specifically proscribed by statute ([Pen. Code., ] § 189), what we say about the second degree felony-murder rule does not necessarily apply to the first degree felony-murder rule." (Chun, at p. 1189, fn. 6, italics added.)
Three months after it decided Chun, the California Supreme Court decided Farley and ruled that, with a limited exception discussed later (see pp.7-9, post), the merger doctrine clarified in Chun does not apply in first degree felony-murder cases. (Farley, supra, 46 Cal.4th at pp. 1111-1122.) The Farley court explained: "In the context of second degree felony murder, courts must interpret [Penal Code] section 188's reference to an ' "abandoned and malignant heart." ' [Citation.] In the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language. Thus, the differences between the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its interpretation of the Legislature's intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing 'committed in the perpetration of, or attempt to perpetrate, ... burglary.' " (Id. at p. 1119.) Thus, the Farley court overruled Wilson, supra, 1 Cal.3d 431, and held that the merger doctrine does not extend to first degree felony murder. (Farley, at pp. 1117, 1121.)
Accordingly, Farley - not Chun - is controlling here because Couch was convicted of first degree felony murder, not second degree felony murder. The Legislature has defined a killing "which is committed in the perpetration of, or attempt to perpetrate, ... carjacking" as first degreemurder. (Pen. Code, § 189; see People v. Dillon (1983) 34 Cal.3d 441, 465 (Dillon) ["by operation of the statute the killing is deemed to be first degree murder as a matter of law"].) There is "no ambiguity in the language of [Penal Code] section 189. It provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including [carjacking], is first degree murder.... [N]othing in the language of section 189 supports the application of the merger doctrine to its terms." (Farley, supra, 46 Cal.4th at pp. 1118-1119, fn. & citations omitted.) We therefore need not determine whether the crime of carjacking is "assaultive in nature" such that it "merges with the homicide and cannot be the basis of a felony-murder instruction" (Chun, supra, 45 Cal.4th at p. 1200), as Couch contends.
2. Wilson Does Not Apply to First Degree Felony Murder Based on Carjacking
Couch's contention that Wilson's extension of the merger doctrine to first degree murder cases applies to this case has no merit. Couch is correct that Farley does not by itself preclude application of Wilson to the crimes he committed in January 2008, because Farley was decided in July 2009 and overruled Wilson prospectively. (See Farley, supra, 46 Cal.4th at pp. 1053, 1121-1122.) This temporal limitation on the overruling does not help Couch, however, because his crime does not fit within the substantive confines of Wilson's extension of the merger doctrine to first degree felony murder.
In Wilson, the Supreme Court held that "an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon." (Wilson, supra, 1 Cal.3d at p. 442, italics added.) Two years after it decided Wilson, the Supreme Court refused to extend the decision to a conviction of first degree felony murder based on armed robbery. (People v. Burton (1971) 6 Cal.3d 375, 386-388 (Burton), disapproved on other grounds by People v. Lessie (2010) 47 Cal.4th 1152, 1168.) The court explained, "We merely excluded from the first degree felony-murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon because we found them indistinguishable from those in Ireland. We regard the holding in Wilson as specifically limited to those situations where the entry is coupled with the intent to commit assault with a deadly weapon." (Burton, at p. 388, italics added.) Thus, at the time Couch committed his crimes, our Supreme Court had already held that Wilson's extension of the merger doctrine to first degree felony murder was limited to those cases in which the underlying felony was burglary based upon the defendant's intention to assault the homicide victim with a deadly weapon. Given this early narrow limitation of Wilson and its subsequent overruling by Farley, we have no power now to extend Wilson to preclude a first degree felony-murder instruction based on carjacking, as Couch urges us to do. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California."].)
Couch contends this portion of the discussion in Burton is "dicta" because the court had previously ruled that the admission of the defendant's confession obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 required reversal. (See Burton, supra, 6 Cal.3d at pp. 378-384.) We disagree. The portion of Burton's discussion quoted in the text was responsive to a contention of the defendant and was intended to guide the parties and the trial court on retrial (id. at pp. 384, 390-391); it was, therefore, not mere dicta (As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 451; United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834-835). Even if it were dicta, however, "[d]icta are not to be ignored. Dicta may be highly persuasive, particularly where made by the Supreme Court after that court has considered the issue and deliberately made pronouncements thereon intended for the guidance of the lower court upon further proceedings." (County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194; accord, Estate of Hilton (1996) 44 Cal.App.4th 890, 919.)
In sum, we hold that the trial court did not err by instructing the jury that it could find Couch guilty of first degree murder based on the killing of Hoagland during the commission of a carjacking.
B. Couch's Sentence of 25 Years to Life in Prison for First Degree Murder Does Not Constitute Cruel and/or Unusual Punishment
Couch also contends imprisonment for 25 years to life for the murder of Hoagland violates federal and state constitutional prohibitions against cruel and/or unusual punishment because the sentence is disproportionate to the nature of the offense and of the offender and to punishments for other crimes under California law. Whether a particular punishment constitutes cruel and/or unusual punishment is ultimately a question of law, but in answering the question the underlying facts must be viewed most favorably to the judgment. (People v. Em (2009) 171 Cal.App.4th 964, 971 (Em); People v. Williams (1986) 180 Cal.App.3d 922, 926 (Williams).) Applying this standard of review, we reject Couch's contention.
1. Couch's Sentence Does Not Violate the State Constitution
In challenging his sentence, Couch relies primarily on the California Constitution's prohibition of "[c]ruel or unusual punishment." (Cal. Const., art. I, § 17.) In considering a challenge to a punishment as disproportionate, we must remember that because the power to define crimes and prescribe associated punishments lies exclusively with the Legislature (e.g., Farley, supra, 46 Cal.4th at p. 1119; People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3; People v. Knowles (1950) 35 Cal.2d 175, 181; Harbor Comm'rs v. Redwood Co. (1891) 88 Cal. 491, 493), there is a "considerable burden a defendant must overcome in challenging a penalty as cruel or unusual" (People v. Wingo (1975) 14 Cal.3d 169, 174; accord, People v. Ruiz (1996) 44 Cal.App.4th 1653, 1662). A defendant meets this burden if the punishment "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 (Lynch); accord, Dillon, supra, 34 Cal.3d at p. 478.) Considerations relevant to the proportionality analysis are the nature of the offense and of the offender, particularly the danger each presents to society; punishments prescribed for more serious offenses under California law; and punishments prescribed by other jurisdictions for the same offense. (Lynch, at pp. 425-427; People v. Russell (2010) 187 Cal.App.4th 981, 993 (Russell); Em, supra, 171 Cal.App.4th at p. 972.) "[A]pplication of a proportionality analysis to reduce a first degree felony-murder conviction must be viewed as representing an exception rather than a general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014.) As we explain below, this case presents no exception to the general rule.
a. Couch's Crime Presented a High Degree of Danger to Society
Couch contends his sentence does not fit the offense. In considering the nature of the offense, we must "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 defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479; accord, People v. Szadziewicz (2008) 161 Cal.App.4th 823, 845; People v. Weddle (1991) 1 Cal.App.4th 1190, 1197 (Weddle).) Whether we consider felony murder in the abstract or the particular facts of this carjacking murder, we have no difficulty concluding Couch's crime was extremely serious and posed great danger to society.
Couch "does not deny that his crime, viewed in the abstract, is a serious one." Nor could he: "There can be no dispute that murder is a serious crime..." (Em, supra, 171 Cal.App.4th at p. 972) or that "carjacking is a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large" (Antoine, supra, 48 Cal.App.4th at p. 495). Moreover, as another court explained in the context of a constitutional challenge to a prison sentence of 25 years to life for burglary murder, but in language equally applicable here, "The chances are great that there will be a confrontation between the perpetrator and someone entrusted with safeguarding the property [here, the pickup truck]; obviously, when such confrontations occur, the potential for violence is enhanced." (Weddle, supra, 1 Cal.App.4th at pp. 1198-1199.) Hence, considered in the abstract, felony murder based on carjacking is a serious and dangerous crime.
The particular circumstances of this case vividly illustrate the gravity and likelihood of harm associated with Couch's crimes. Couch saw Ancibor get dropped off and enter the house at which the pickup truck was parked shortly before he stole the truck. He therefore knew that Ancibor was at home, that she would hear him start the truck, and that she might then confront him to try to stop the theft. Indeed, when Couch tried to back out of the driveway, both Ancibor and Hoagland ran out of the house, confronted Couch, and repeatedly shouted at him to stop and get out of the truck. When Couch refused to surrender the truck and continued backing onto the street, Hoagland climbed into the bed of the truck. Couch then recklessly zigzagged down the streets of San Diego at a high speed, while Hoagland was being violently tossed about in the bed of the truck, shouting at Couch to stop and crying out for help. When Couch finally crashed the truck into a tree, he had damaged or destroyed several vehicles, injured himself and the occupant of one of the vehicles he collided with, and killed Hoagland. Thus, this case presents a classic, and tragic, example of the "serious potential for harm to the victim, the perpetrator and the public at large" we warned about in Antoine, supra, 48 Cal.App.4th at page 495.
Couch attempts to minimize the seriousness of his crime by contending he only wanted "to surreptitiously steal a truck" and had no intent to kill, harm or even contact anyone. According to Couch, it is only because events "spiral[ed] out of control" and triggered application of the felony-murder rule that he finds himself convicted of first degree murder. The courts have rejected similar contentions on facts similar to those present here.
For example, in Weddle the defendant broke into a department store, stole some clothing, sped away from the scene, and collided with a vehicle, killing one of its occupants. In appealing his sentence of 25 years to life in prison, the "[d]efendant argue[d] he was no more than a petty thief, and a technical application of the burglary statute made him a first degree murderer." (Weddle, supra, 1 Cal.App.4th at p. 1199.) The Court of Appeal held this argument "misses the point. [Defendant] is not being punished for committing a theft or a burglary, but for committing a homicide. His punishment is not disproportionate in that the risk of such an occurrence was foreseeable. But it is the fact his actions directly led to the commission of a homicide which properly exposes him to the imposition of a greater penalty." (Ibid.)
In People v. Thongvilay (1998) 62 Cal.App.4th 71 (Thongvilay), the defendants stole a stereo out of a car and sped away when they realized they were being pursued by the car owner's boyfriend. In doing so, they struck a car and killed its occupant. One of the defendants was convicted of first degree felony murder and sentenced to prison for 25 years to life. On appeal, he challenged the sentence as cruel and unusual punishment, in part on the ground that "the 'case was a fairly minor automobile burglary, which turned into a car chase when the victim took off after the perpetrators, and finally into a homicide when the perpetrators, fearing the harm the enraged burglary victim might do to them, ran a red light at exactly the wrong time.' " (Id. at p. 88.) The Court of Appeal rejected this argument and noted that the defendant knew the danger he was creating by speeding away from the crime scene. (Id. at pp. 88-89.)
In Russell, the defendant broke into a house and stole several items, including an automobile that he recklessly drove at very high speeds and ultimately crashed into a pickup truck, killing its driver. The defendant was convicted of felony murder and challenged his prison sentence of 25 years to life as cruel and unusual punishment. We rejected the defendant's contentions that the conviction was "a 'technical application' " or "a 'tenuous, at best' application of the felony-murder rule." (Russell, supra, 187 Cal.App.4th at p. 994.) As we explained, the defendant "killed a human being while fleeing at exquisitely dangerous speeds during a police pursuit after he had committed a nighttime residential burglary. Respectfully, there is nothing technical or tenuous about the application of the felony-murder rule to [the defendant]." (Id. at p. 994.)
Like the defendants in Russell, Thongvilay and Weddle, Couch stole property and tried to retain the stolen property and escape detection by recklessly speeding away from the scene of the crime. In the process, he killed a human being. We agree with Russell, Thongvilay and Weddle that in such circumstances imposition of a prison sentence of 25 years to life is not grossly disproportionate to the crime of first degree murder. (See Russell, supra, 187 Cal.App.4th at p. 994 [citing Thongvilay and Weddle for conclusion that "a 25-year-to-life sentence for first degree murder committed in the flight from a felony is not cruel and unusual punishment"].)
b. Couch's Degree of Culpability Is High
Couch also contends his sentence does not fit the offender. "This branch of the inquiry... focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479; accord, People v. Thompson (1994) 24 Cal.App.4th 299, 306; Weddle, supra, 1 Cal.App.4th at p. 1199.) Here, Couch tries to deflect blame to Iwan as "the instigator of the theft" and to Hoagland for his "unexpected and unwanted" attempts to regain possession of the stolen truck. He also contends his own "extremely difficult upbringing, " psychiatric and mental problems, lack of prior criminality, youth and immaturity "mitigate" his culpability. We do not believe these factors render Couch's prison sentence cruel or unusual punishment for the murder he committed.
As to Iwan's supposed instigation of the theft, we again remind Couch that he is not being punished for theft; he is being punished for murder. Thus, although it might have been Iwan's idea to steal Hoagland's truck, it was Couch alone who actually got inside the truck, recklessly sped down the streets of San Diego, collided with multiple vehicles, injured one person and killed another. "[I]t is the fact his actions directly led to the commission of a homicide which properly exposes him to the imposition of a greater penalty." (Weddle, supra, 1 Cal.App.4th at p. 1199, italics added.)
As to Hoagland's actions in trying to prevent the theft, they might have been "unwanted" from Couch's point of view but they were by no means "unexpected." Couch observed Ancibor enter the house where the pickup truck was parked before he stole the truck, so he knew someone was at home who might try to stop the theft. Couch admits "it was Mr. Hoagland's legal right to jump in the bed of the truck to attempt to stop the vehicle theft." Further, as courts have pointed out, when someone tries to steal property there is a likelihood that its owner will resist and violence or harm will follow. (See, e.g., Thongvilay, supra, 62 Cal.App.4th at pp. 88-89 [automobile burglary]; Antoine, supra, 48 Cal.App.4th at p. 495 [carjacking]; Weddle, supra, 1 Cal.App.4th at pp. 1198-1199 [commercial burglary].) In fact, the reported cases unfortunately contain too many examples of defendants like Couch who stole property and killed their victims while attempting to get away in a vehicle. (See, e.g., Russell, supra, 187 Cal.App.4th at pp. 985-986; Thongvilay, at pp. 76-77; People v. Young (1992) 11 Cal.App.4th 1299, 1303-1304 (Young); People v. Johnson (1992) 5 Cal.App.4th 552, 555-556; Weddle, at pp. 1192-1193; People v. Olivas (1985) 172 Cal.App.3d 984, 986.) We therefore disagree with Couch that "[b]y any standard, this case involved a highly unusual set of circumstances in which an ordinary attempted vehicle theft resulted in the death of the vehicle's owner."
Next, as to Couch's personal and familial difficulties, we are not unsympathetic, but we do not believe those difficulties reduce his culpability. Although there is evidence Couch was raised in challenging circumstances and suffered from substance abuse and other mental and psychiatric problems, there is no evidence he was so impaired when he committed the crimes that he did not appreciate the wrongfulness or dangerousness of his actions. To the contrary, Couch's flight from the scene where the stolen truck finally crashed and Hoagland lay dead, and his lying to paramedics about his involvement in the crash, indicate that Couch then knew his actions were wrongful and had dangerous consequences and that he was trying to avoid responsibility for them. (See, e.g., People v. Mora (1995) 39 Cal.App.4th 607, 617 (Mora) [fleeing scene and leaving victim to die indicate reckless indifference to life]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754-1755 [same].) Therefore, "an examination of the record in this case does not demonstrate that [Couch] suffer[ed] from such significant impairment as to mitigate the need for punishment consistent with the statutory offense that he committed." (Russell, supra, 187 Cal.App.4th at p. 995.)
As to Couch's prior criminal record, we are not so ready as Couch to dismiss it as " 'negligible.' " In the four years before he murdered Hoagland, Couch had been arrested, fined, put in jail, put on probation or had his probation revoked for possession of marijuana (Health & Saf. Code, § 11357, subd. (c)); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); fighting in a public place (Pen. Code, § 415); disorderly conduct (Pen. Code, § 647); and vandalism (Pen. Code, §§ 594, subd. (b), 594.2, subd. (a)). Hence, far from being "negligible, " Couch's prior crimes can be characterized "as numerous with increasing seriousness and unsatisfactory performance on probation." (Mora, supra, 39 Cal.App.4th at p. 618.) In any event, lack of a significant prior criminal record "is not determinative" (People v. Martinez (1999) 76 Cal.App.4th 489, 497) where, as here, the present crimes are "extremely serious and dangerous to society in themselves" (People v. Crooks (1997) 55 Cal.App.4th 797, 807 (Crooks)).
Finally, as to Couch's youth and immaturity, we note he was 21 years old when he murdered Hoagland. Couch was therefore legally an adult. (Fam. Code, § 6501 ["An adult is an individual who is 18 years of age or older."].) Also, there is no evidence in the record he was unusually immature. Couch's purported youth and immaturity therefore do not lessen his culpability for Hoagland's murder or make his sentence of 25 years to life in prison cruel or unusual punishment. (See, e.g., Russell, supra, 187 Cal.App.4th at p. 995 [upholding 25 years to life in prison for 30 year old convicted of felony murder who had "substantial criminal law contact"]; Thongvilay, supra, 62 Cal.App.4th at pp. 77, 88-89 [same for 17 year old convicted of felony murder who had prior conviction]; Mora, supra, 39 Cal.App.4th at p. 618 [upholding life imprisonment without possibility of parole for 23 year old convicted of felony murder who had prior convictions]; Young, supra, 11 Cal.App.4th at p. 1310 [same for adult convicted of felony murder who had prior conviction and arrests]; People v. Hankey (1989) 215 Cal.App.3d 510, 511, 513 [rejecting as "meritless" defendant's challenge to sentence of 25 years to life in prison for felony murder as "cruel and unusual because of his youth, his lack of prior convictions, and the possibility he did not intend to kill"].)
c. Couch's Sentence Is Not Disproportionate When Compared to Punishments for Other Crimes
Couch contends his prison sentence is disproportionate when compared to punishments prescribed for other offenses under California law. He complains he received "the exact same... sentence" as someone who kills intentionally with deliberation and premeditation and a harsher sentence than someone who commits second degree murder. These complaints are not well taken.
First, Couch did not necessarily receive "the exact same... sentence" as one who commits an intentional, deliberate and premeditated killing. For Couch's crime and for intentional, deliberate and premeditated killings, the law authorizes greater penalties, including death and life imprisonment without the possibility of parole, depending on the offense and the offender. (Pen. Code, §§ 189, 190, subd. (a), 190.2, subd. (a); People v. Sullivan (2007) 151 Cal.App.4th 524, 571; Young, supra, 11 Cal.App.4th at p. 1311.) A sentence of 25 years to life in prison, which Couch received, is the minimum punishment for an intentional, deliberate and premeditated killing. (Pen. Code, §§ 189, 190, subd. (a).) "[T]he maximum punishment for the hypothecated crimes may be more severe than [the punishment Couch] received." (Sullivan, at p. 571.) Hence, Couch has not shown that what he considers a more serious crime (i.e., an intentional, deliberate and premeditated murder) would be punished less severely than his felony murder of Hoagland, which he must do for his sentence to be constitutionally "suspect." (Lynch, supra, 8 Cal.3d at p. 426.)
Second, Couch's comparison of his sentence to the 15 years to life in prison that may be imposed for second degree murder is inapt. (See Pen. Code, § 190, subd. (a).) Again, Couch must show that a crime more serious than his is punished less severely. (Lynch, supra, 8 Cal.3d at p. 426.) Here, Couch was convicted of first degree felony murder. Comparing his prison sentence to that given to a defendant convicted of the less serious crime of second degree murder therefore "is not an appropriate analysis." (Russell, supra, 187 Cal.App.4th at p. 995.)
Third, Couch has not compared his sentence to the punishments imposed by other jurisdictions for felony murder to show that his sentence is disproportionate to his offense. (See Lynch, supra, 8 Cal.3d at p. 427 ["if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness"].) Having failed to do so, he has not met his burden to show his sentence is unconstitutional under this aspect of the proportionality analysis. (Crooks, supra, 55 Cal.App.4th at p. 808; In re DeBeque (1989) 212 Cal.App.3d 241, 255.)
Finally, we note that although Couch challenges his sentence under the rhetoric of cruel or unusual punishment, his real contention is that California's felony-murder rule is unfair because it imposes on an accidental killer like him the same punishment the law imposes on a cold-blooded killer. The problem with this argument is that the Legislature has defined both willful, deliberate and premeditated murder and felony murder as first degree murder. (Pen. Code, § 189; Farley, supra, 46 Cal.4th at pp. 1118-1119; Dillon, supra, 34 Cal.3d at p. 465.) This means that "[o]nce a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning - if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances." (Burton, supra, 6 Cal.3d at pp. 387-388, italics added; accord, Farley, at p. 1121; Williams, supra, 180 Cal.App.3d at p. 926.) Our Supreme Court was thus well aware of how the felony-murder rule operates when it rejected a constitutional challenge to the rule in 1983 (see Dillon, at pp. 472-476), and 10 years later the Legislature expanded the felony-murder rule by adding carjacking to the list of predicate felonies (see Pen. Code, § 189; Stats. 1993, ch. 611, § 4). Accordingly, since the Legislature has provided that all types of first-degree murder are to be punished by a minimum of 25 years to life in prison (Pen. Code, § 190, subd. (a)), the sentence Couch received "remains statutorily authorized punishment in California" (Russell, supra, 187 Cal.App.4th at p. 994). Couch's policy objections to the felony-murder statute as producing an unduly harsh result in this case should be addressed to the Legislature; they "do not authorize this court to limit the plain language of the statute." (Farley, at p. 1121.)
2. Couch's Sentence Does Not Violate the Federal Constitution
Couch also challenges his prison sentence under the federal Constitution's prohibition of "cruel and unusual punishments" (U.S. Const., 8th Amend.), which applies to the states (U.S. Const., 14th Amend.; Robinson v. California (1962) 370 U.S. 660, 666-667). We reject this challenge as well.
First, as the People point out, the United States Supreme Court has rejected an Eighth Amendment challenge to imposition of the death penalty for felony murder on a defendant who was not the actual killer and did not intend to kill but showed reckless indifference to human life by substantially participating in felonies (robbery and kidnapping) that carried a grave risk of death. (Tison v. Arizona (1987) 481 U.S. 137, 157-158.) California authorizes the death penalty for first degree felony murder based on carjacking (Pen. Code, §§ 189, 190, subd. (a), 190.2, subd. (a)(17)(L); Young, supra, 11 Cal.App.4th at p. 1311), and as we have explained, Couch was the primary (if not the only) perpetrator of the carjacking that killed Hoagland. Since imposition of the death penalty on Couch under these circumstances would not have constituted cruel and unusual punishment under the federal Constitution, imposition of the lesser penalty of 25 years to life in prison does not violate the Eighth Amendment.
Second, in challenges to the length of term-of-years sentences, the United States Supreme Court has recognized "the Eighth Amendment contains a 'narrow proportionality principle.' " (Graham v. Florida (2010) ___ U.S. ___ [176 L.Ed.2d 825, 836, 130 S.Ct. 2011, 2021].) This principle " 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Ibid.; see also Russell, supra, 187 Cal.App.4th at p. 993 ["A sentence violates the federal Constitution if it is 'grossly disproportionate' to the severity of the crime."].) The high court rejected proportionality challenges to prison sentences of 25 years to life for theft offenses in a pair of cases from California. (Lockyer v. Andrade (2003) 538 U.S. 63; Ewing v. California (2003) 538 U.S. 11.) If terms of 25 years to life "are not ' "grossly disproportionate" ' for petty theft with prior felony convictions, then [Couch's] total sentence of [25] years to life is not grossly disproportionate to the crime of murder." (Em, supra, 171 Cal.App.4th at p. 977; see also Russell, at pp. 992-995 [rejecting 8th Amend. challenge to sentence of 25 years to life in prison for felony murder in which killing resulted from vehicular collision during defendant's flight from burglary]; Thongvilay, supra, 62 Cal.App.4th at pp. 87-89 [same].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.