Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 34281
Kline, P.J.
Appellant Salvador Jiminez, Jr. was found guilty, following a jury trial, of special circumstance murder and burglary. On appeal, he contends: (1) the trial court erred in failing to instruct the jury sua sponte with CALJIC Nos. 2.71 and 2.71.7, which advise the jury to view with caution statements attributed to the defendant; (2) the trial court erred when it failed to instruct sua sponte with CALJIC Nos. 3.10, 3.14, 3.18 and 3.19, regarding “accomplice distrust,” where key witnesses were arguably accomplices; (3) the trial court’s determination that the appropriate punishment was life in prison without the possibility of parole, rather than 25 years to life in prison, was made under a mistaken understanding of the applicable statute, Penal Code section 190.5, subdivision (b); and (4) in sentencing appellant, the presentence report failed to evaluate the proper penalty, the trial court failed to consider relevant mitigating factors, and defense counsel was ineffective for failing to point out the court’s sentencing errors. We shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Appellant, who was approximately two months short of his 18th birthday at the time these offenses were committed, was charged by amended information with one count of murder (§ 187, subd. (a)), with the special circumstance that the murder was committed during a burglary (§ 190.2, subd. (a)(17)). It was further alleged that appellant personally used a knife during the offense (§ 12022, subd. (b)(1)). Appellant was also charged with one count of burglary (§ 459), with the additional allegation that appellant personally used a knife during the offense (§ 12022, subd. (b)(1)).
A jury found appellant guilty of first degree murder and residential burglary, and also found the special circumstance and enhancement allegations to be true.
On January 24, 2006, the trial court sentenced appellant to a term of life in prison without the possibility of parole for the murder with special circumstances, and a one-year term on the section 12022, subdivision (b)(1), enhancement. The court stayed punishment on the burglary count and related enhancement.
Appellant filed a notice of appeal on February 22, 2006.
FACTUAL BACKGROUND
Graciela Rivas lived with her husband, Gabriel Iniguez-Garcia, and their young son, R., in an apartment at 3925 Princeton Drive in Santa Rosa. Rivas was a homemaker. Two brothers, Oscar and Cristian Balcazar-Mejia, also shared a bedroom in the house. Appellant was a friend of the brothers and had spent the night at the apartment a couple of times.
On April 16, 2004, Iniguez-Garcia got home from work at about 4:30 p.m. His wife and son were at home. He bathed and then left for a job interview at approximately 5:15 p.m.
Jon Loraditch and his wife, Miriam Ellis-Loraditch, lived in a quadruplex on Princeton Avenue, which shared a common wall with Graciela Rivas and her family. Sometime after 5:00 p.m. on April 16, 2004, Loraditch and Ellis-Loraditch were at home working at their computers when they heard a great deal of noise, banging and crashing, on the other side of the shared wall. Loraditch heard a man’s voice and Ellis-Loraditch also heard a woman screaming repeatedly. The commotion lasted two minutes at the most. They went onto their back porch and looked over the shared fence, where they saw a small child at the back door of the neighbors’ apartment. He was screaming and crying and banging on the closed glass door; he was saying, “mommy, mommy.” Loraditch and Ellis-Loraditch then called 911.
While Ellis-Loraditch was speaking with the dispatcher, she saw a man wearing a royal blue hooded sweatshirt come outside into the backyard. He looked Hispanic, but his eyes were unusual. They were slightly slanted and were light in color. When the man saw her, he went back into the apartment through the sliding door. Loraditch also saw a man in a blue sweatshirt come outside, but he then deliberately looked away from the man. The police arrived several minutes later. An officer knocked on the neighbors’ front door, then got it open, and the child came out. The officer asked Loraditch and Ellis-Loraditch to the take the child into their home, which they did. He stayed with them for several hours.
At a lineup shortly before trial, Ellis-Loraditch identified appellant as someone with features similar to the features she remembered, but she was unable to make a definite identification.
On April 16, 2004 at 5:36 p.m., Santa Rose Police Officers Joel Christensen and Stephen Rakoski arrived at 3925 Princeton Drive in Santa Rosa. Yulupa Avenue is the nearest street to the west and Evans Drive is the nearest street to the east of that address. As Officer Rakoski walked up to the front door, he heard a small child crying hysterically. The door was locked and he knocked on the door. He then looked through a window and saw a body on the floor inside. He was about to force entry when the child opened the door from the inside. The child, who was no more than two years old and was crying, “papi, papi,” pointed toward the kitchen area.
Inside the kitchen, the officers observed a woman lying on her back; she had stab wounds to her abdomen and had blood on her face, neck, and chest. She did not appear to be breathing. Officer Rakoski ran back to the living room, got the small child, and went outside. The next door neighbors who had called the police were outside and Officer Rakoski handed the child to them and told them to take him inside immediately.
Evidence technician Kristina Capeheart arrived at 3925 Princeton Drive at about 6:25 p.m. on April 16, 2004, and gained entry at 9:00 p.m. She photographed and diagramed the scene. A kitchen wall was indented and fresh plaster was on the floor. Kitchen chairs had been knocked over and moved. Blood on the floor near the victim and blood spatter on a wall and a chair were collected for later analysis. Blood samples from the victim’s hands were also collected. The window screen from the northwest bedroom had been removed. The tip of a knife blade was found inside the window’s frame.
Dr. Brian Peterson, a forensic pathologist, performed an autopsy on the body of Graciela Rivas on April 20, 2004. Rivas had suffered multiple blunt force and sharp force traumas. There were a total of 45 sharp force wounds on her body. There were about 15 sharp force injuries to her head and neck, which were made with a single-edge instrument, such as a kitchen knife or scissors edge. There were about eight sharp force injuries to the chest and about nine to the abdomen. Rivas also had about 13 defensive sharp force wounds on her hands and arms.
Because of the significant amount of internal bleeding, the relatively small amount of external bleeding, and the limited number of defensive wounds, Dr. Peterson believed a stab wound to Rivas’s heart happened early in the attack. The cause of death was the “multiple stab and incised wounds of the neck, torso and extremities.” The attack likely occurred over a matter of minutes.
Santa Rose Police Officer Tamara Warner interviewed possible witnesses at the Princeton Drive apartment complex, including Miriam Ellis-Loraditch, who gave Warner a sketch she had made of the suspect she saw in her neighbors’ backyard. Ellis-Loraditch described him as a light complexioned Hispanic male in his late teens or early twenties. He had odd colored eyes, maybe blue, that were not typical of a Hispanic. His face was triangular shaped and he was of medium height. He was quite thin and had on a royal blue hooded sweatshirt. His hair was short or shaved and he had no facial hair.
On April 16, 2004, Adriana Castro was grocery shopping with her sister-in-law, Blanca; her cousin, Fabiola; and Fabiola’s baby when she got a phone call from appellant, whom she knew as “Blue Eyes.” He wanted a ride, so she picked him up on Moorland Avenue and gave him a ride in her 1995 white Neon automobile to a location near Yulupa Avenue. Appellant directed her where to go and where to park. He said that he would be gone about 10 minutes and that he was going to get some money. Appellant, whom Castro identified at trial as “Blue Eyes,” was wearing a blue hooded sweatshirt on April 16. He got out of her car and walked into an apartment complex across the street. Castro and the other women waited in the car until they eventually got tired of waiting and started driving around the neighborhood, looking for appellant and honking the car horn.
Castro later called the phone number appellant had called her from, but there was no answer, so she decided to leave. As she began to drive away, appellant called her and said to come back and get him. She returned to the place at which she had parked earlier. She and Blanca got out of the car and went to look for appellant. They started talking to three men—one was Mexican, one white, and one Black—who were outside talking right near Castro’s car.
But then appellant ran up and yelled, “Get in the car.” He got into the back of the car and Castro drove off. Appellant took off his sweatshirt in the car and put it on his arm. He seemed nervous. He said he had had been in a fight and a Black man had hit him. He also said not to say anything about what had happened that day. Castro drove him back to the same place she had originally picked him up. He had probably been gone from the car a total of 45 minutes to an hour before he came back. Appellant had said he would pay Castro back for her gas money, but he never did. A few days later, after reading a newspaper article that a crime had been committed in the area to which she had driven appellant and that a Dodge Neon was involved, Castro talked to the police.
Fabiola Rea, Castro’s cousin, was in the Dodge Neon when Castro went to pick up someone introduced to her as “Blue Eyes.” She identified appellant at trial as “Blue Eyes.” As they were driving from Moorland Avenue to Yulupa Avenue, appellant said he was going to pick up some money from his cousin. When appellant returned to the car, he said he got into a fight with “the Black guy.” He had his sweatshirt wrapped around his hand and he had blood on the finger of his right hand. Appellant was bald-headed and Rea saw a red lump behind his right ear. He seemed scared and nervous, and was sitting on the floor of the car, trying to hide behind the driver’s seat.
Blanca Colmenares, was shopping with Castro and Rea when they went to pick up “Blue Eyes,” who Colmenares knew from a party, in Castro’s car. Colmenares identified appellant at trial as “Blue Eyes.” Appellant told them he needed a ride because “he needed some money.” After they dropped appellant off, they waited about a half hour, and then Castro drove around the block and parked again. Colmenares and Castro got out of the car to talk to three men, but then appellant came running back to the car, screaming at Colmenares and Castro to get in the car. He had blood on his hand, bloodstains on his pants, and he seemed scared. Once inside the car, appellant ducked down on the floor in the back of the car. He said he got jumped and beaten up. Colmenares saw a knife in his back pocket.
On April 16, 2004, John Rogers lived on Evans Drive near Princeton Drive. That evening, he and three friends—one of whom was African-American and one of whom was Hispanic— were barbecuing in front of his house. A white car drove up and parked across the street and a male in a blue hooded sweatshirt got out. The car left and returned later, and Rogers saw the male coming in a hurry toward the car. Neither Rogers nor his friends spoke or fought with the male.
Keith Webb lived on Evans Drive on April 16, 2004. That evening, he noticed police activity on Princeton Drive near his home. He spoke to a police officer about some observations he had made earlier. He had seen an Hispanic or Asian male in a blue hooded sweatshirt approach a Dodge Neon parked in the neighborhood. The person had come from the direction of Princeton Drive. He first noticed the person because he heard someone say, “Come on, hurry up.”
Lorraine Gock, a dentist, was in her dental office on Princeton Drive near Yulupa Avenue at about 5:00 p.m. on April 16, 2004. She glanced out the window and saw a pair of feet in an enclosed area between some bushes and a locked gate. The person, whom she identified at trial as appellant, was Hispanic and was wearing a navy blue hooded sweatshirt. He loitered around the area and looked thought the fence. When Dr. Gock and her assistant, Patricia Nichols, left the office at about 5:15 or 5:20 p.m., they saw appellant leave the side of the building and walk across Princeton Drive toward Yulupa Avenue.
Oscar Balcazar-Mejia and his brother had been renting a room in Rivas’s and her husband’s home for one or two months before April 16, 2004. They were both working, but did not have bank accounts. They had saved over $1,000 dollars, which they hid in the closet of their room. Oscar and his brother had a car, which they would park outside the house when they were home. Appellant was a friend who had visited Oscar and his brother at Rivas’s home two or three times and had spent the night there.
Oscar did not owe appellant any money and had made no arrangements for appellant to come to the home after 5:00 p.m. on April 16, 2004. He never told appellant that he hid money in his room. However, he had given appellant money a few times when appellant had said he could use some money, and Oscar did not remember if he ever retrieved money from his room while appellant was visiting. After Rivas was killed, Oscar looked for his money and it was still where he had hid it. Oscar did not recall if he had ever taken the screen off his window.
When an officer interviewed the two brothers after the killing, they said that the screen on their bedroom window was intact on April 16, 2004, and neither one had removed it from the window.
Cristian Balcazar-Mejia hid his money with his brother’s money—a total of more than $2,000—although most of the money belonged to his brother. Appellant was a good friend of Cristian’s, and he came to visit at the Princeton Drive residence. He did not recall if he had lent appellant any money and did not know if his brother had done so. He did not recall telling appellant where he hid the money in his room.
After the killing, two wallets were found on the dresser in the brothers’ room. The room was tidy and the dresser drawers did not appear to have been rifled through.
On April 22, 2004, Santa Rosa police officers traveled to Carpenteria in Santa Barbara County, where they took appellant into custody and returned him to Santa Rosa. Appellant had lacerations on his right wrist and the index finger of his right hand.
A criminalist with the California Department of Justice analyzed physical evidence in this case, including blood samples from the body and clothing of Rivas, her kitchen, and from the car seat and rear floor carpet of the Dodge Neon. The stains were sent, along with blood and hair samples from appellant, to the Department of Justice in Sacramento for DNA testing.
Employees at the Department of Justice’s DNA laboratory and an independent forensic serologist examined appellant’s and Rivas’s blood. Appellant had the DNA profile for blood found on Rivas’s hand, with a probability of inclusion for him or someone in his immediate family of approximately one in 49,000 Hispanics. Two males’ DNA was found in the carpet and vinyl seat from the Dodge Neon. Appellant could not be excluded as one of the donors of this DNA.
DISCUSSION
I. The Trial Court’s Failure to Instruct Sua Sponte with CALJIC Nos. 2.71 and 2.71.7
Appellant contends the trial court erred in failing to instruct the jury sua sponte with CALJIC Nos. 2.71 and 2.71.7, which advise the jury to view with caution statements attributed to the defendant. Appellant argues that these instructions were relevant to the testimony of Adriana Castro, Fabiola Rea, and Blanca Colmenares regarding appellant’s statement that he was going to “get some money” [Castro], he was “going to pick up some money from his cousin” [Rea], and “he needed some money” [Colmenares].
CALJIC No. 2.71 provides: “An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.
“You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.
“[Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]”
CALJIC No. 2.71.7 provides: “Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed.
“It is for you to decide whether the statement was made by [a] [the] defendant.
“Evidence of an oral statement ought to be viewed with caution.”
The California Supreme Court has held that these instructions must be given sua sponte when there is substantial evidence of a defendant’s oral admission. (See People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Lopez (2005) 129 Cal.App.4th 1508, 1529.) An admission in this context means a “ ‘recital of facts tending to establish guilt.’ [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 93-94, fn. 8 (Stankewitz).)
Respondent asserts that “it is not altogether clear” in this case that appellant’s statement about going to get money constituted an admission because his statement was “neutral” in that he never intimated any criminal purpose. A statement, however, need not be explicitly incriminatory to constitute and admission. (See Stankewitz, supra, 51 Cal.3d at pp. 92-93, fn. 8; see also People v. Carpenter (1997) 15 Cal.4th 312, 392-393 [“The rationale behind the cautionary instruction suggests it applies broadly”].) Here, appellant’s statement that he was going to get money provided indirect evidence of appellant’s intent to commit burglary at 3925 Princeton Drive, and thus was a statement “ ‘tending to establish guilt.’ ” (Stankewitz, at pp. 93-94, fn. 8.) Therefore, the court should have instructed the jury with CALJIC Nos. 2.71 and 2.71.7.
However, we find the error in this case harmless because it is not reasonably probable the result would have been different had the court properly instructed the jury. (See People v. Watson (1956) 46 Cal.2d 818, 836, cited in People v. Beagle, supra, 6 Cal.3d at p. 455.) In assessing potential prejudice, our Supreme Court has stressed that “the primary purpose of the cautionary instruction ‘is to assist the jury in determining if the statement was in fact made.’ [Citation.]” (Stankewitz, supra, 51 Cal.3d at p. 94.) In Stankewitz, the court found the instructional error harmless because “[t]he testimony concerning defendant’s oral admission was uncontradicted; defendant adduced no evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. There was no conflicting testimony concerning the precise words used, their context or their meaning. [Citations.].” (Ibid.) Similarly, in the present case, while the three witnesses remembered appellant’s words slightly differently, the gist of appellant’s statement remained uniform in each one’s testimony: that he was going to the area of Yulupa Avenue for money. No evidence was presented that all three women’s recollection was inaccurate or that their testimony was fabricated.
In addition, appellant is incorrect when he argues that this testimony was the sole evidence of appellant’s intent to commit burglary and that both of the Balcazar-Mejia brothers denied having made appellant aware of the hidden money’s existence. In fact, Oscar testified that he had given appellant money a few times and, while he never told appellant he hid money in his room, he did not recall if he had ever retrieved money from the room while appellant was present. Cristian simply did not recall having told appellant where he hid the money in his room. The evidence that appellant had stayed overnight in the house on more than one occasion, that Oscar had loaned or given appellant money and did not remember if he had retrieved the money in front of appellant, and that, after the killing, the screen was found to have been removed from the brothers’ window all provide circumstantial evidence that appellant was aware that the brothers had money in their room and that he intended to steal it.
Although appellant notes that, after the killing, two wallets were found on the dresser in the brothers’ room and the money in the closet was still there, the jury could quite reasonably infer that appellant’s encounter with Rivas interrupted his plan to steal money from the brothers’ room.
Finally, “the court fully instructed the jury on judging the credibility of a witness, thus providing guidance on how to determine whether to credit the [three witnesses’] testimony.” (People v. Carpenter, supra, 15 Cal.4th at p. 393; see CALJIC Nos. 2.20, 2.21.1, 2.22, 2.27.)
For all of these reasons, the court’s error in failing to instruct the jury sua sponte with CALJIC Nos. 2.71 and 2.71.7 was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
II. The Trial Court’s Failure to Instruct Sua Sponte
with CALJIC Nos. 3.10, 3.14, 3.18 and 3.19
Appellant contends the trial court erred when it failed to instruct sua sponte with CALJIC Nos. 3.10, 3.14, 3.18, and 3.19, regarding “accomplice distrust,” where key witnesses were arguably accomplices.
CALJIC No. 3.10 provides: “An accomplice is a person who [is] [was] subject to prosecution for the identical offense charged [in Count[s] ____] against the defendant on trial by reason of [aiding and abetting] [or] [being a member of a criminal conspiracy].”
Section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
To be considered an accomplice, one must have “ ‘ “guilty knowledge and intent with regard to the commission of the crime.” ’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 369.) “When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices.” (People v. Frye (1998) 18 Cal.4th 894, 965-966.) “A witness’s status as an accomplice ‘is a question for the jury if there is a genuine evidentiary dispute [on knowledge and intent] and if “the jury could reasonably [find] from the evidence” that the witness is an accomplice.’ [Citations.]” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158.)
In the present case, there was no evidence that any of the three women who rode in the car with appellant had any knowledge whatsoever regarding appellant’s criminal intent or actions. Their testimony was consistent that appellant was a friend of Castro’s who had simply requested a ride to get some money and that they had agreed to wait for him to return to the car. When appellant returned to the car, the fact that he was nervous and bleeding plainly did not inform the women that he had just killed someone. Nothing in these witnesses’ testimony, or in any other evidence presented at trial, provided substantial evidence that the witnesses had “ ‘ “guilty knowledge and intent” ’ ” regarding appellant’s plan to steal money from Rivas’s home. (People v. Lewis, supra, 26 Cal.4th at p. 369.)
Appellant nevertheless argues that the fact that the three women drove appellant to the area, awaited his return, drove around looking for him, returned to pick him up, and drove him away from the scene provides circumstantial evidence of their accomplice status so as to require cautionary instructions. This purported showing of accomplice status, however, is based wholly on speculation, not on evidence. (See People v. Lewis, supra, 26 Cal.4th at p. 69.) As the court explained in People v. Lewis: “Substantial evidence is ‘evidence sufficient to “deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak.” [Citation.]” (Ibid.)
The court did not err in failing to instruct sua sponte on “accomplice distrust.”
III. The Trial Court’s Imposition of a Life Sentence Based on an Allegedly Mistaken View of Section 190.5, subdivision (b)
Appellant contends the trial court’s determination that the appropriate punishment was life in prison without the possibility of parole, rather than 25 years to life in prison, was made under a mistaken understanding of the applicable statute, section 90.5, subdivision b).
Section 190.5, subdivision (b), pursuant to which appellant was sentenced, provides: “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” (Italics added.)
According to appellant, the italicized portion of the statute does not state a preference for a term of life without possibility of parole (LWOP) but, instead, gives the court full discretion to sentence the defendant to either of two equally weighted sentences: LWOP or the indeterminate term of 25 years to life. Appellant further avers that People v. Guinn (1994) 28 Cal.App.4th 1130, 1141 (Guinn), in which the Court of Appeal for the Fourth Appellate District interpreted subdivision (b) of section 190.5 to mean that “16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life.” The court’s construction of the statute was “based on the ordinary language and structure of the provision,” in which the word “shall” appeared to be mandatory. (Ibid.) Its construction was also consistent with the history of section 190.5, amended as part of Proposition 115 (the “Crime Victims Justice Reform Act”) “specifically to make youthful offenders, who committed what would have been a death-eligible crime for an adult, subject to special circumstances and LWOP. The fact that a court might grant leniency in some cases, in recognition that some youthful special circumstance murderers might warrant more lenient treatment, does not detract from the generally mandatory imposition of LWOP as the punishment for a youthful special circumstance murderer. In the first instance, therefore, LWOP is the presumptive punishment for 16- or 17-year-old special-circumstance murderers, and the court’s discretion is concomitantly circumscribed to that extent.” (Id. at pp. 1141-1142.)
We agree with the court in Guinn that the plain language of subdivision (b) of section 190.5, as well as the statute’s history, reflect a legislative intent that LWOP be the presumptive punishment for 16- and 17-year-old defendants convicted of special circumstance murder.
In the present case, in sentencing appellant to life in prison, the trial court stated, inter alia: “And we will therefore come forth with the maximum sentence under the law. And the Court is well aware, I agree, I want to [say] on the record, I am aware that I do have the election, and I do not, by law, I am not mandated to give the maximum term. But I believe that, from a justice standpoint, there is absolutely no question what must be done, and it will, and is going to be done.”
The record here shows that the trial court understood it had discretion to sentence appellant to a term other than LWOP, and chose nonetheless to sentence appellant to the longer of the two possible terms.
Indeed, it is not clear from the court’s comments whether it understood that LWOP was in fact the presumptive term, rather than one of two equally balanced possible sentences.
IV. Alleged Failure of the Trial Court and the Presentence Report to Consider Relevant Sentencing Guidelines and Alleged Ineffective Assistance of Counsel
Appellant contends that, in sentencing appellant, the presentence report failed to evaluate the proper penalty, the trial court failed to consider relevant factors under section 190.3 and California Rules of Court, rule 4.423, and defense counsel was ineffective for failing to point out the court’s sentencing errors.
All further rule references are to the California Rules of Court.
In Guinn, supra, 28 Cal.App.4th 1130, the appellate court observed that section 190.5 “is placed with other special circumstances provisions in a distinct statutory scheme—which statutory scheme already contains provisions relating to mitigating circumstances justifying leniency in a penalty determination.” (Id. at p. 1142.) The court therefore concluded “the factors stated in section 190.3 are available, to the extent relevant to an exercise of discretion to grant leniency, as guidelines under section 190.5. Because those factors allow the court to take into account any mitigating circumstance which extenuates the gravity of the crime (factor (k)), by extension the criteria stated under California Rules of Court, rule 423 [now rule 4.423], are also available as guidelines for the court’s exercise of discretion.” (Guinn, at pp. 1142-1143.) Later in the opinion, the court similarly stated that the factors listed in rules 421 and 423 [now rules 4.421 and 4.423], as well as section 190.3, are proper criteria to consider in evaluating whether sentencing leniency should be granted. (Guinn,at p. 1149.)
Here, the presentence report suggested that there were four circumstances in aggravation under rule 4.421: “As to Count II, the victim was considered particularly vulnerable in that she was inside her own residence, with her very young child, when the defendant chose to burglarize her residence. [(Rule 4.421(a)(3).)] The defendant has engaged in violent conduct, which indicates a serious danger to society. [(Rule 4.421(b)(1).)] The defendant’s prior sustained petitions in juvenile delinquency proceedings are numerous. [(Rule 4.421(b)(2).)] The defendant’s prior performance on grants of juvenile wardship is considered unsatisfactory. [Rule 4.421(b)(5).)]” The presentence report also stated that there were no circumstances in mitigation under rule 4.423.
In sentencing appellant to the LWOP term, the trial court similarly stated “that there is aggravation in this case, totally preponderant, that is, pursuant to [rule] 4.421(a)(3), Count II, victim was considered particularly vulnerable in that she was inside her own residence, with her very young child, when the Defendant chose to burglarize her residence. [Rule 4.421](b)(1), the Defendant has engaged in violent conduct, which indicates a serious danger to society. [Rule 4.421](b)(2), the Defendant’s prior sustained petitions in juvenile delinquency proceedings are there, and I think legitimately it could be considered to be certainly numerous; but the Court is emphasizing the prior two aggravated term, or circumstances, and also [rule 4.421](b)(5), Defendant’s prior performance on grants of juvenile wardship be considered unsatisfactory.”
A. The Trial Court’s Consideration of Sentencing Factors
The record, as set forth above, demonstrates that the trial court agreed with the presentence report’s suggested findings of four aggravating factors (rule 4.421) and no mitigating factors (rule 4.423). That the court did not also expressly address the mitigating factors set forth in section 190.3 does not mean it erred. The appellate court in Guinn, supra, 28 Cal.App.4th 1130, stated that the factors found in section 190.3 “are available, to the extent relevant to an exercise of discretion to grant leniency,” along with rules 4.421 and 4.423. (Id. at pp. 1142-1143, italics added, 1149.) Here, the court did consider mitigating factors, but found only aggravating factors in its review of rules 4.421 and 4.423.
We also note that a presentence report is merely advisory (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432), and its alleged incompleteness cannot be a basis, apart from the trial court’s sentencing decision, for finding error.
Section 190.3 provides in relevant part: “In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
While appellant claims the trial court did not address mitigating factors, pursuant to rule 4.423, the court’s statement “that there is aggravation in this case, totally preponderant,” reflects its conclusion—in agreement with the finding in the presentence report—that there were no circumstances in mitigation.
Furthermore, the only mitigating factor appellant argues is applicable here is the circumstance of appellant’s mental retardation. That factor is listed not only in section 190.3, subdivision (h), but also in rule 4.423(b)(2). Hence, the court examined that factor when it addressed factors in aggravation and mitigation at sentencing and found it inapplicable in the present case. Accordingly, the court did not err in failing to specifically address the section 190.3 factors when sentencing appellant. (See Guinn, supra, 28 Cal.App.4th at pp. 1142-1143.)
B. Ineffective Assistance of Counsel Claim
Appellant argues that, even if the trial court did not err, defense counsel was ineffective for failing to raise certain sentencing issues, including: (1) failing to object to the deficient presentence report; (2) failing to object to the court’s failure to address the factors listed in section 190.3 and rule 4.423; (3) failing to object to the court’s improper application of the aggravating factors listed in rule 4.421, which was not approved in Guinn, supra, 28 Cal.App.4th 1130; (4) even if the rule 4.421 factors were properly considered, failing to object to the court’s reliance on factors not supported by the record or rules; and (5) failing to alert the trial court to the important factor of appellant’s mental retardation.
To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
With respect to the first two alleged instances of ineffective assistance, we have already found, in part IV.A., ante, of this opinion, that the trial court’s failure to specifically address the section 190.3 factors was not error and that the court (and the presentence report) did address both factors in aggravation (rule 4.421) and mitigation (rule 4.423), but found that the factors in aggravation were “totally preponderant.” Therefore, appellant cannot complain that defense counsel’s performance was inadequate for failing to raise these issues.
With respect to the third alleged instance of ineffective assistance, Guinn specifically stated that it is proper for the court to consider the factors listed in, inter alia, rule 4.421 in determining whether sentencing leniency should be granted. (Guinn, supra, 28 Cal.App.4th at p. 1149.)
As to the fourth alleged instance of ineffective assistance, we disagree with appellant’s assertion that defense counsel should have objected to the court’s reliance on factors in rule 4.421 not supported by the record or the Rules of Court. Appellant first argues that the court’s finding that appellant had “engaged in violent conduct, which indicates a serious danger to society,” pursuant to rule 4.421(b)(1), was improper because every murder involves violence. However, violence is not an element of murder, and a sentencing court may properly use this factor in sentencing where there are appropriate facts. (People v. Dixie (1979) 98 Cal.App.3d 852, 856-857.) Here, the evidence showed that Rivas suffered multiple blunt force and sharp force traumas, including a total of 45 sharp force wounds, in an attack that likely lasted several minutes. The court properly found that appellant’s violent conduct was a factor in aggravation; hence, counsel was not ineffective for failing to object.
Appellant does not claim that Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, has any application to the present case, and it does not. The trial court relied on four aggravating factors in making its determination to sentence appellant to the presumptive term in this case, and the concerns the high court had regarding California’s determinate sentencing scheme are thus inapplicable.
Appellant further argues that the trial court improperly found that Rivas was particularly vulnerable because “she was inside her own residence, with her very young child, when the Defendant chose to burglarize her residence.” However, the fact that appellant viciously attacked a woman who was home alone with her young toddler makes this case different from other homicide cases in which a certain level of vulnerability is assumed of the victim, and supported the court’s finding that the victim was particularly vulnerable, pursuant to rule 4.421(a)(3). (See People v. Smith (1979) 94 Cal.App.3d 433, 436 [“Particularly, as used here, means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant'’ criminal act”].) Thus, counsel was not ineffective for failing to object.
As to appellant’s juvenile record and prior performance on juvenile probation, appellant does not dispute that these were valid aggravating factors under rules 4.421(b)(2) and 4.421(b)(5), but instead asserts that “defense counsel could have argued that such a record, standing alone, would not support the more severe sentence.” Given that we have found that these two factors did not “stand alone” in supporting the presumptive LWOP sentence, appellant’s argument is not persuasive.
The presentence report reflects juvenile court findings that, in 1999, appellant violated sections 496, subdivision (a), and 459, as well as Vehicle Code section 10851, subdivision (a); that in 2000, he violated section 484, subdivision (a); and that in 2002, he violated Welfare and Institutions Code section 871. In the presentence report, the probation officer described appellant’s probation history, as follows: “The defendant participated on grants of juvenile wardship, from 2000 to 2003. His wardship grants were riddled with violations of probation, for involvement in the commission of new law offenses, abscondance from probation supervision, failure to attend school, failure to abide by his Court-ordered gang conditions, failure to complete his community services work hours, failure to attend AA/NA meetings as directed, and failure to abide by his curfew.”
Finally, with respect to the fifth alleged instance of ineffective assistance, appellant argues that defense counsel’s “most glaring omission” was her failure to alert the trial court to a crucial mitigating factor: appellant’s mental retardation. (See § 190.3, subd. (h); rule 4.423(b)(2).) Following a section 1368 referral for a determination of appellant’s competency to stand trial, Dr. Emily Keram filed a report regarding her April 22, 2005 evaluation of appellant, from which she concluded that he was competent to proceed to trial. In her report, Dr. Keram stated that, at the request of appellant’s attorney, a Dr. Cushing had recently evaluated appellant and had stated to Dr. Keram that appellant’s IQ “was 64, a score associated with mental retardation. . . . Dr. Cushing was concerned about Mr. Jiminez’s competency to stand trial, as Mr. Jiminez stated that he did not know what a jury is.”
Appellant does not claim that any other mitigating factors were applicable.
However, in her thorough evaluation of appellant, Dr. Keram debunked the results of that IQ test, explaining, inter alia, that appellant’s responses in one test “unequivocally demonstrated that he intentionally produced apparent deficits in his memory.” Moreover, while she performed the competency assessment on appellant, she interspersed general conversation during the two hours of testing: “At one point during more casual conversation, he spontaneously asked me if I found my work ‘motivating’ and ‘stimulating.’ He asked me if I would change any laws if I could, and specifically, if I would change the ‘Three Strikes Law.’ He then discussed the issue of strikes as they pertain to the different charges against him. This conversation was again inconsistent with his presentation of ignorance of basic criminal law and court procedure.”
Dr. Keram further stated that appellant said he was hearing voices throughout the interview, “but these also appeared to be malingered as his behavior and the content of the reported auditory hallucinations were entirely consistent with malingered symptoms.” Similarly, in another test, appellant “appeared to have difficulty recalling three objects immediately, and could recall no objects accurately at five minutes. However, he did recall the three categories of the objects correctly at five minutes, an animal, a color, and a place. I had asked him to remember the words, ‘dog,’ ‘purple,’ and ‘Sacramento.’ At five minutes he recalled the words, ‘cat, ‘red,’ and ‘Mexico.’ Again this response pattern is entirely consistent with someone who is intentionally feigning deficits in their memory.”
In addition, Dr. Keram had reviewed letters appellant had written to his wife in 2004 and 2005, in which, inter alia, he “articulately demonstrated an accurate understanding of the charges against him, the mental state elements that differentiate first and second degree murder, [and] the purpose of various court dates in his case . . . . Of note, based on the vocabulary, punctuation, spelling, manipulation of abstract concepts and the grammar Mr. Jiminez used in these letters, he appears to be of at least average verbal intelligence.”
Dr. Keram concluded that appellant was competent to proceed in the current criminal matter, stating: “On formal questioning regarding his competency, Mr. Jiminez responded as though he was completely unaware of even the most basic issues involved in criminal cases. He also clearly malingered memory deficits. However, in recent letters to his wife as well as in casual conversation, Mr. Jiminez demonstrates an accurate understanding of the legal issues he faces . . . .”
In light of this strong evidence of appellant’s efforts to feign severe mental deficiencies, it is tactically understandable that defense counsel chose not to call attention to appellant’s malingering by raising the extremely questionable results of the prior IQ test discussed by Dr. Keram in her report.
Because appellant has not shown that defense counsel’s representation was inadequate, his claim of ineffective assistance of counsel cannot succeed. (Strickland v. Washington, supra, 466 U.S. at p. 688.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J. Lambden, J.
CALJIC No. 3.14 provides: “Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal. Thus a person who assents to, or aids, or assists in, the commission of a crime without that knowledge and without that intent or purpose is not an accomplice in the commission of the crime.”
CALJIC No. 3.18 provides: “To the extent that [an accomplice] [or] [a codefendant] gives testimony that tends to incriminate [the] [a] [another] defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.”
CALJIC No. 3.19 provides: “You must determine whether the witness ____ was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that ____ was an accomplice in the crime[s] charged against the defendant.”
“(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
“(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.
“(i) The age of the defendant at the time of the crime.
“(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”