Opinion
G044200 Super. Ct. No. 08WF0147
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LUGO and HECTOR GENARO PACHECO, Defendants and Appellants.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Lugo. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant Hector Genaro Pacheco. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeals from judgments of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Lugo.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant Hector Genaro Pacheco.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Joseph Lugo guilty of the first degree murder of Abraham Sanchez. The jury found it to be true the murder was committed for criminal street gang purposes within the meaning of Penal Code section 190.2, subdivision (a)(22). (All statutory references are to the Penal Code.) Allegations under section 186.22, subdivision (b)(1) and section 12022.53, subdivisions (d) and (e)(1) were found to be true for the murder. The jury also found defendant Lugo guilty of the attempted murder of Cruz Aguirre. The allegations under sections 664, subdivision (a), and 186.22, subdivision (b)(1) were found to be true for the attempted murder. Additionally, defendant Lugo was found guilty of street terrorism. The court sentenced defendant Lugo to 50 years to life in prison plus a consecutive term of life with the possibility of parole. We affirm.
The jury found defendant Hector Genaro Pacheco guilty of the first degree murder of Abraham Sanchez. Allegations under sections 190.2, subdivision (a)(22), 186.22, subdivision (b)(1) and 12022.53, subdivisions (d) and (e)(1) were found to be true. Defendant Pacheco was also found guilty of the attempted murder of Cruz Aguirre. The allegations under sections 664, subdivision (a), and 186.22, subdivision (b)(1) were found to be true for the attempted murder. Additionally, defendant Pacheco was found guilty of street terrorism. The court sentenced defendant Pacheco to 50 years to life in prison plus a consecutive term of life with the possibility of parole.
They claim on appeal they have been subjected to cruel and unusual punishment, and that the court erred in admitting evidence, in not severing them from trial with a codefendant and in not instructing the jury with an instruction which was not requested. Except for ordering a correction in the abstract of judgment regarding restitution, we affirm.
I
FACTS
Report of Incident
Late at night on Friday January 18 or very early on Saturday January 19, 2008, a motorist who was driving around Main and Delaware Streets in Huntington Beach called 911. The motorist stated to the dispatcher: ". . . there's two men laying in the street and there were kids just beating them up." The motorist added: "And there was something laying in the street and I saw some kids running, and then . . . um . . . they were moving, and it's two people. I'm . . . I'm driving out where I can try and see. They started to walk towards my car." There were "like 5 or 6 of them" and they were "probably 17 or 18 years old." They all wore dark jeans and hooded sweatshirts.
A second motorist called 911, reporting: ". . . I'm driving down Delaware and Ellis in Huntington Beach and there's two guys laying on the side of the road. I think they got jumped or something, but they're not moving." The second motorist saw a black Suburban go southbound on Delaware.
Investigation
Police responded to the scene just after midnight. An officer described what he found: "When I initially arrived, I got off my motorcycle. There was no one else in the street. I approached the subject that was laying on the ground later identified as Mr. Sanchez, checked for any signs of life. I gained no response verbally or physically by shaking. I checked his eyes. There was no constriction of the pupils from my flashlight and there was no movement, no reaction."
A victim was "down in the street being treated by paramedics." Sanchez's body was "lying in the middle of the street" on the southbound lane of Delaware St.
A witness gave a description of two vehicles, and a police helicopter spotted one that matched the description, a dark colored Suburban. Police executed a high risk car stop and found "two male Hispanics in their late teens, early twenties, short hair" in the vehicle.
Blood was found on the seat behind the driver's seat as well as in the middle and third rows. A bloody baseball bat was also found in the car. A single unlit Marlboro cigarette was found in the third seat area. DNA testing revealed defendant Pacheco could not be excluded as the source of DNA found on the driver's seat or on the blood found on the third row seat or on the cigarette. The frequency of such a match on both the seat and the cigarette is "one in one trillion."
Police collected 15 latent fingerprints from the Suburban. Five of the 15 prints were identified as defendant Lugo's.
Police executed a search warrant at an address where defendant Lugo had been staying in the Riverside/Norco area. In the bedroom belonging to defendant Lugo, a Dallas Cowboy shirt with the number 22 was found. The shirt had blood stains on it. DNA analysis revealed that defendant Lugo could not be excluded as the major source of one of the blood stains. The frequency of such a match is "one in one trillion." Analysis of another blood stain on the football jersey revealed that victim Cruz Aguirre could not be excluded as the source of the stain. The frequency of such a match is "one in one trillion."
Defendant Lugo was examined for injuries. He had a scratch mark on his left shoulder area. He said he got it lifting weights.
Cruz Aguirre
Cruz Aguirre was born in February 1988. He lives in the Amberleaf neighborhood of Huntington Beach. When he was asked what happened on January 18 and 19, 2008, he answered: "I got stabbed. My friend got killed."
Aguirre and Abraham Sanchez had been to a party. Aguirre decided to go home standing "on the pegs" of Sanchez's bicycle with his arms on Sanchez's shoulders. They had no weapons. He said: "I noticed — I noticed like a SUV pull up and it stopped right in front of us, so that was kind of suspicious to me." He added, "No one said anything." Aguirre described what happened next: "They just started running up on me and my friend and started beating us up, jumping us." He said: "We were just fighting. That's — that's really all I remember. After that, like I don't really remember much."
Miguel Camacho
Camacho was wearing his jail jumpsuit when he testified at trial. When he was asked about his jail attire, he said: "We committed murder and an attempt." At the time of the instant crimes, he was 19 years old. He was "hanging out" with Jesus Ortega and two girls. The four of them "bumped into" defendant Hector Pacheco. The group went to Camacho's house to get Camacho's mother's dark blue Suburban.
They took defendant Pacheco to a shopping center for him to buy some chicken and then dropped him off in the Oak View neighborhood, specifically to Dairyview Circle, the place where members of the Southside Huntington Beach gang "hang out." Camacho said he was a member of the Southside gang, and that his moniker was Midget. He said Ortega was also a Southside member.
The four then drove to a restaurant in Santa Ana. During their meal, Camacho "got a call from Mr. Pacheco and he say that — he was wondering where I was at. I told him I was in Santa Ana. He asked if I was gonna go back to — to the neighborhood, the Oak View area, Oak View Community Center. I told him no, that I was — I was eating. I was in a restaurant." After that, defendant Pacheco called Camacho again "like, two, three times telling me that if I was gonna go back to where they were at. I told him no. I kept telling him no. Then he said they were gonna go f. . . up some Amberleaf."
There are two Southside gang members named Pacheco who are mentioned in the record, defendant Pacheco as well as Arturo Pacheco who was also at Dairyview Circle with the Southside gang. The phone calls were from defendant Pacheco.
Camacho said the Amberleaf and Southside Huntington Beach gangs are rivals. He said he was not surprised about the plans "'cause there had been tagging of Amberleaf in the hood before" which indicated showings of disrespect toward the gang. When a gang is shown disrespect, it "get[s] them back."
After about five phone calls, Ortega told Camacho to "go back to where the homies were kicking it" and "we'll go see what's up with the homies." When Camacho and Ortega got to Dairyview Circle, they found around 20 others, "all the homies right there kicking, drinking" underneath a tree.
The prosecutor showed Camacho photographs, and he identified Arturo Pacheco known as Lil One, David Candelario known as Grizzly aka Shrek, defendant Pacheco, Ignacio Ruiz known as Lil Dreamer, Jesus Ortega known as Lil Pigeon, Kevin Lopez and defendant Lugo known as Lil Sniper. He said they are members of Southside.
As people talked among themselves under the tree at Dairyview, Camacho became aware of a plan in the making. He said: "I heard Lil Dreamer say they had a gun — he had a gun. And then I heard somebody else, I do not recall who it was, say — ask where it was. He said not to worry about it, that it was in the car." Ruiz also said he only had six bullets, and that he "was gonna be dumping, that if any — if somebody didn't want to go, not to go." Camacho explained that dumping means shooting.
At that point, Camacho, "Ortega, Shrek, Hector, Kevin, and Lil Sniper" got into the Suburban. Camacho drove and defendant Lugo was right behind him. Another vehicle, "a white car" belonging to Little Grumpy, drove behind the Suburban, Ruiz was the front seat passenger in that car.
As the groups approached Delaware Street, Camacho observed a bike coming towards them from the opposite direction, and "[a]ll the guys in [the Suburban] lowered down the windows and started hitting the guys up." Camacho explained they were "asking them where they're from, you know what I mean? You got — hitting them up, saying, 'where are you from?'" Those in the Suburban "were screaming out 'Southside' and 'where you from?' Things like that." Camacho could not hear the response from those on the bicycle and kept going down Delaware. He wasn't that far onto Delaware when "everybody got off."
So Camacho pulled into the parking lot. He heard a shot. Camacho said he saw "they were jumping one of the guys, the guys in my car. He added: "I seen 'em punching him and kicking him." He was asked to state who he saw punching and kicking the victim and he said it was defendants Pacheco and Lugo, Arturo Pacheco and Lopez.
By the time Camacho turned the Suburban around in the parking lot, everybody started coming back. He saw Lil One (Arturo Pacheco) running toward Ellis Street and everyone else ran towards Camacho's car. Camacho stated: "Everybody was running back and Lil Sniper stayed back still beating the guy up. He was laying down on the floor. Then when everybody ran, he stayed there and then he ran back to get towards the car. He came and opened the door and then he ran back and kicked the guy in the head." Thus, defendant Lugo was the last one to get back into the Suburban. Defendant Lugo took the seat behind Camacho and defendant Pacheco took a seat "way in the back."
Camacho described what happened at that point: ". . . we were driving down the street slow, and then I heard Lil Dreamer say, 'I got him. I got him.' Then I kept on driving. Then a little bit after I turned around and Lil Sniper was putting back something in his waistband." Camacho saw that it was a gun. The group then went back to Dairyview.
Camacho dropped off everyone but Ortega at Dairyview and headed toward a friend's house. At some point, he became aware that a helicopter "put the light on us." In a Stater Bros' parking lot, "cops surround the car" and the two were arrested.
Jesus Ortega
Ortega also testified in a jail jumpsuit and explained it was "because I participated in a murder and attempted murder." He was extensively cross-examined about making a deal with the prosecution.
Ortega said he was Southside Huntington Beach when the crimes were committed. He was jumped into the gang when "they beat you up." To him, Southside, "it's like a family. It's — that's all you have." He was asked whether he lived close to some other organization, and responded: "It's our enemy's neighborhood." Ortega clarified the enemy is Amberleaf.
Earlier in the evening of January 18, 2008, he and defendant Pacheco were talking in an alley when they saw the Huntington Beach police and ran toward Dairyview. He explained he had just been released from juvenile hall and was on gang terms, "so getting caught there would bring me back to juvenile hall." When asked why he ran toward Dairyview, he responded: "Uh, it's a circle. There's only one way in, one way out. You can — you could jump walls and you could get away from the cops pretty easily, if you get there." At Dairyview, Southsiders go under a tree because "the helicopter passes by, they can't see us."
After evading the police earlier in the evening, Ortega, Camacho and two girls went out to eat in Santa Ana. During dinner, he received phone calls from defendant Pacheco. He described what was said by defendant Pacheco: "He said that something happened, for me to get over there — for us to get over there." He added that "they were calling for me to go over there with Miguel for assistance."
Ortega and Camacho got to the tree at 11:00 p.m. and Ortega saw "a lot of people," and introduced himself to people he did not know as "Little Pigeon from Southside Huntington Beach." That occasion was the first time Ortega met Lil Sniper (defendant Lugo), although Ortega knew his father, Big Sniper, an older homie, because: "I ran around with him when I was a kid. When I barely started coming out. I was 12 years old. I ran around with him, did drugs with him. I even worked with him."
It quickly became apparent something was going to happen. Ortega said: "We were gonna go rumble with Amberleaf." He continued: "Because they — I guess they came and threw bottles or something, and we were gonna go fight 'em." Lil Dreamer had a gun. Ortega said defendant Pacheco "said that if anybody needs to use it, that it was real loud, so that if we needed to use it — if somebody needed to use it, it was gonna be real loud, and you got to get out of there quick."
Ortega was "riding shotgun." He said: "There was two cars. There was the Suburban that Miguel was driving and there was another white car. I don't recall what kind of car it was. That we drove the white car was — we were following the white car."
On Delaware St., Ortega saw "two Amberleaf gang members on a bike." He said "the guys on the bike were throwing gang signs." Ortega was the first one to jump out of the Suburban, he "ran to the guy that was driving the bike." He "started punching 'em. Started throwing punches, threw him off his bike, dragged him to the sidewalk." The other person on the bike "jumped off the handlebars and ran towards the protection in the white car." After Ortega got the person he dragged off the bike onto the ground, he started kicking and stomping him. As the victim "balled up," "a bunch of people ran up, just started kicking him, too." Ortega added: "Maybe before I dropped him to the ground maybe I slammed his head. I don't remember."
When Ortega heard a gunshot, he decided to leave the fight. He ran to the Suburban, he was the first one back. He testified about what happened next: "We waited for — for — for Kevin to jump back in the car, and Hector and Lil Sniper were still — we don't know — I don't know how the body ended up in the middle of the street, but it did. They were standing over the body — leaning over the body, and we were already parked next to the body waiting — telling 'em, 'Let's roll. Let's get out of here.'" A car drove down the street and defendant Pacheco got back into the Suburban, but defendant Lugo "ran back to get his sweater" and then returned to the Suburban.
When he got back into the car, defendant Lugo said: "I stabbed that motherf. . . ." Ruiz said: "Shot the motherf. . . in the chest." The prosecutor asked Ortega about any more discussion, and Ortega responded: "Yes. They were gonna go back and get Lil One 'cause we couldn't find Lil One. We couldn't find him. He wasn't in neither the Suburban or the white car, and we didn't want to leave him behind. So Lil Dreamer gave Lil Sniper the gun, and they went looking for Lil One."
Those in the white car then went to look for Lil One, and the Suburban returned to Dairyview to drop some people off there. Camacho and Ortega remained in the Suburban. Soon the police pulled them over.
Ortega's January 21, 2008, interview with the police was also admitted into evidence. In it, he gave the same version of events he testified to at trial. At a sidebar conference, there was a defense objection to the admission of these prior consistent statements. The objection was overruled.
David Candelario
David Candelario was also in a jail jumpsuit during his testimony, and he said it was because of "a murder and attempted murder." He said there was an agreement between he and the DA for "six years with three strikes" in exchange for testifying and telling the truth. He referred to himself as "a rat" and said "my life's in danger."
Candelario admitted to being a member of the Southside Huntington Beach gang. His moniker is usually Grizzly but sometimes he's called Shrek. Candelario testified that defendant Pacheco was a gang member, and defendant Lugo was with defendant Pacheco when Candelario first met him. He was at Dairyview on January 18 at "like around 11:00, toward midnight." He and "Sniper and Dreamer, Danny, Cesar, and a couple of other people" were "just hanging out, drinking."
The group talked about doing "a mission" and Amberleaf was mentioned. He said Amberleaf was another gang in Huntington Beach with whom "we had, like, a feud." Candelario was asked to explain what he meant by mission and responded: "Uh, well, to go gang-bang, I guess you could say." The purpose was to enhance reputation or respect as a bad ass gang.
Candelario said Amberleaf had spray painted which caused disrespect to Southside's reputation and called for retaliation. He was asked to describe how the gang retaliates, and he responded: "Could be any number of things, fighting, stabbing, shooting."
When the group left for the mission, Candelario rode in Camacho's dark blue SUV. He was asked what happened when the Southsiders got out of the two cars at the scene. He stated: "Well, Ruiz started running towards the other guy, and I saw the other group start beating up the other guy. They dropped him on the floor, and I just saw them beating him up right there. And then I looked to my left and I saw Ruiz get close to him, and I heard the gunshot. And I saw him running back with a gun like close to his stomach, to his waistband. And I looked over, and they were kicking the other guy, stomp him out, punching him."
Candelario saw Lil Dreamer approaching the victim who was shot, but he did not see him with a gun. Nor did he see any weapons close to the individual who was getting kicked and punched by eight or nine Southsiders. After the gunshot, "everybody just started going back to the cars."
The group in the Suburban returned to Dairyview. "Like a minute at the most" after they arrived, Candelario saw the gun. He explained how he saw it: "Lil Dreamer pulled it out and asked me to hold it so he could tighten up his belt."
Candelario was asked whether he became aware that someone had been cut during the attack. He said he knew defendant Pacheco had been cut '"cause he showed me." Defendant Pacheco "said that he stabbed the guy" and that he cut himself while stabbing him. He saw defendant Pacheco with a knife "like maybe a day or two later" when he was "getting rid of it" "by breaking it up and throwing it away."
Ignacio Ruiz
Ignacio Ruiz was interviewed by Huntington Beach detectives on January 29, 2008. At first, he denied any gang affiliations, but said he knew "a lot of people" from Southside. He denied being called anything but Ignacio or Junior or Nacho, and specifically denied being called Dreamer. As police questioned more, Ruiz said: "Alright, alright, alright. I'm DREAMER." After that, he admitted his connection with the gang: "How long I been hanging with Southside? Hm, I don't know. Like a year or two . . . ."
He told police he did not see anyone with a gun that night. He said he was probably in Huntington Beach that Friday night but he "didn't kill anybody." He said he was was "gonna tell you what I know from my heart." He stated: "Alright. Yes, I was right there when it happened but it was, what was it? STEVE started fighting and then out of nowhere [unintelligible] just heard a shot, and I wasn't fighting. I wasn't fighting. I was in the, I was in the, I was in the side and people started fighting, you know, and but then I just heard it go boom. I heard everybody say, get in the car. . . ."
Police pressed for more details, and Ruiz admitted he was under the tree drinking that Friday night with about 10 others. He explained how he got in a white car: "[W]ell they just got in the car, right. I go, where you guys going? They go, we're just cruising. I'm like, alright. Let's go." He said "some other guys took off in another car." The other was "a big car." He added: "It was probably like a, probably like a Suburban." He said they drove in a "nice white neighborhood."
Ruiz said they got out of the cars and others were swinging at "these guys." Ruiz then heard "a boom," which could have been something like the sound of a gunshot. He said he never heard the sound of a gunshot, but has heard such sounds on television.
Pretrial Motion
Defendants Lugo and Pacheco were tried in the same trial as Ruiz, whose appeal was heard by this court. (People v. Ruiz (Aug. 31, 2011, G044156) [nonpub.opn.].) Ruiz did not testify.
Before trial, there was lengthy discussion regarding the admission of Ruiz's statement made to the police 10 days after the crimes. Defense counsel argued "there are multiple additional areas that [Ruiz's lawyer] wants to bring in. And we are in the area of inferential incriminatory statements pointed towards I believe my client." Counsel further argued: "I mean, it's just replete with various references to others other than himself and "it doesn't take a rocket scientist to figure out that he's referring to the other two guys that are sitting in the courtroom with him. And we have no ability, obviously, to cross-examine those statements, which is the whole reason why you have separate jury trials." Counsel also requested severance.
The prosecutor informed the court he prepared a redacted version of Ruiz's statement and gave it to counsel the previous night. The prosecutor argued the redacted statement along with a limiting instruction would cure any problems.
The court asked defense counsel: "So the defense position is there's nothing in here that specifically identifies either Mr. Lugo or Pacheco, but it's guilt by association. Is that pretty much what we're dealing with?" Pacheco's lawyer responded: "Essentially, yes, but even stronger than that, if that makes any sense." Lugo's lawyer responded: "I agree. It's not association. It's direct inference." The court said it needed "a little bit of time to look through some of the cases," and added: "My thought is this . . . I am fairly confident that I can fashion some relief that would satisfy Aranda-Bruton [Bruton v. United States (1969) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518] one way or another."
Later the same day, the court brought the matter up again, discussed the specifics of the cases cited with counsel, and went over suggestions for further redactions. After a long discussion, the court denied the motions, stating: "I'm going to let you guys settle on the redactions as much as you can. With the understanding that I do not believe there is sufficient indicia pointing the finger at [defendants].
As admitted into evidence, Ruiz's statement to the police did not mention either defendant specifically. The court instructed the jury Ruiz's statements were admissible against him alone.
Gang Expert
In January 2008, Detective Arthur Preece was assigned to the Huntington Beach gang unit known as neighborhood enhancement team. He described his responsibilities: "Gang intel, gang enforcement, a lot of the Spanish speaking because a majority of our unit speaks Spanish, a lot of the Spanish speaking related investigations, certain neighborhoods within the city that are predominately Hispanic, deal with the area."
About the Southside Huntington Beach gang, Preece said: "The gang initially started out, it was called Motown, and it started out in the Beach/Utica area of Huntington Beach, which is about two, three miles farther south in the city than the Oak View area of Huntington Beach. . . . [¶] [I]t . . . moved into the Commodore Circle area of Huntington Beach and migrated up to the Oak View area of Huntington Beach which is in the area of Beach and Slater." Commodore Circle's name was changed to Amberleaf.
Preece has been personally involved with investigating hundreds of crimes committed by Southside Huntington Beach. The gang has at least 70 members. The primary activities of the gang are: "Murder, attempt murder, robbery, carjacking, sales of narcotics, the transportation of narcotics, possession of narcotics for sale, firearms violations, auto theft and vandalism." Preece added witness intimidation to the list.
Southside gang member Gergario Lopez Lopez, born in 1979, was convicted of aggravated assault in 2000. Southside gang member Juan Carlos Barrera, born in 1983, was convicted of assault with a shotgun in 2005. Southside gang member Mariano Mendez, born in 1980, was convicted of assault with a deadly weapon with great bodily injury and witness intimidation in 2007.
The prosecutor posed a hypothetical question to Preece, mirrored on the facts of the instant case, asking him "whether the fatal gunshot and the stabbing would be consistent with crimes committed by members of A [criminal street gang] for the benefit of, at the direction of, or in association with gang A?" Preece said the crimes were definitely for the benefit of the gang, explaining: "As we mentioned before, the disrespect factor, you have to retaliate or you lose respect in the gang culture. Respect is everything. Their street creds are based on respect. Without street creds or your reputation on the street — which translates into your reputation in the jail also. If you get — if you allow other gangs to get away with tagging, you allow B [a tagging crew] to get away with tagging and throwing bottles in your neighborhood, you're going to lose that respect, those street creds, so it's to benefit your gang, benefit — goes towards your street creds." Preece testified the same hypothetical situation promotes and furthers the gang in the same way
Medical Experts
A forensic pathologist performed an autopsy on Sanchez. He found a "gunshot wound that . . . went essentially through the heart, through the esophagus, through the lower lobe of the right lung before exiting," and determined that to be the cause of death.
The chief resident of surgery at UCI Medical Center testified a 19-year-old Hispanic male arrived for treatment at 1:00 a.m. on January 19, 2008. The doctor described what he observed: ". . . an individual that was in pain. He was conscious, alert. He was having difficulty breathing. On first examination, you know, he had anywhere from 9 to 12 stab wounds to his flank, which is the side and his back. Again, he was alert, oriented. He was conscious and talking with us, but he was in quite a bit of respiratory difficulty and abdominal pain as well." A CT scan revealed "a fair amount of blood and air in the right chest." The patient was taken to the operating room where an exploratory laparotomy was performed
II
DISCUSSION
Cruel and Unusual Punishment
Defendant Lugo was born in February 1992, making him 15, almost 16, when the instant crimes were committed on January 19, 2008. Defendant Lugo acknowledged the following incident to the probation officer: "According to police records, a victim reported he looked outside his window and saw defendant inside his vehicle. The defendant was detained and it was discovered the driver's side window was broken and a DVD player was partially removed from the center console. Additionally, a pile of human feces was seen on the ground next to the rear tire that had fallen off the rear of the vehicle."
Defendant Pacheco was born in October 1993, making him 14 when the instant crimes were committed. Defendant Pacheco acknowledged the following incidents to the probation officer: 1) A patrol officer observed the defendant and two companions writing graffiti in a flood control channel. The defendant was contacted and he admitted to writing graffiti and obtaining spray paint; 2) A teacher's aide observed a sketchbook on the defendant's desk that contained graffiti. She confiscated the item and the defendant grabbed her wrist in an attempt to retrieve the item. The victim complained of pain in her wrist; 3) A patrol officer observed the defendant and three other males vandalizing the side of a bus in a church parking lot. Spray paint and a bottle of "Mad Dog" alcohol were located on the ground behind the bus. The defendant was contacted and he admitted to being from a "tagging crew" called "Into Addicts" with a moniker of "Hexx." He also admitted to writing graffiti and consuming alcohol; 4) The defendant's stepmother indicated the defendant became angry at her because she called his father and reported he was arguing with a neighbor. The defendant grabbed the victim's throat and pushed her against a wall before head butting her two times.
In another incident, police records stated a teacher's aide observed defendant Pacheco put his hands around another student's neck and begin to squeeze. Defendant Pacheco said he was only playing with the victim. Defendant Pacheco denied involvement with the following: "According to police records, police responded to a fight in progress but were unable to locate a victim. The victim was located later that day and reported he was assaulted by a group of six to eight subjects because he was a witness to a crime involving a 'Southside Huntington Beach' gang member. He believed the attack was in retaliation for his involvement in the other case. The defendant was identified as a suspect in the altercation."
1. Eighth Amendment Prohibition
The Eighth Amendment prohibits cruel and unusual punishment and is made applicable to the states through the due process clause of the Fourteenth Amendment. (Robinson v. State of California (1962) 370 U.S. 660, 666-667.) "The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishment is the 'precept of justice that punishment for the crime should be graduated and proportioned to [the] offense.' [Citation.]" (Graham v. Florida (2010) _ U.S. _, _ [130 S.Ct. 2011, 2021] (Graham).) This proportionality review has traditionally occurred in connection with two different lines of cases. The first involves sentences for "term-of-years" and the other involves certain categorical restrictions the United States Supreme Court has placed on the imposition of the death penalty. (Ibid.) Examples of the latter include Coker v. Georgia (1977) 433 U.S. 584, 592 [execution for rape violates Eighth Amendment]; Roper v. Simmons (2005) 543 U.S. 551, 569 [execution of minor violates Eighth Amendment]; and Atkins v. Virginia (2002) 536 U.S. 304, 321 [execution of mentally retarded violates Eighth Amendment].
Until the decision in Graham, the court had not announced a categorical restriction on a term-of-years, or nondeath case. In Graham, the court declared that a sentence of life without the possibility of parole (LWOP) imposed on a juvenile for a nonhomicide offense violates the Eighth Amendment. (Graham, supra, __ U.S. at p. __ .) The high court's decision was presaged a year earlier in In re Nunez (2009) 173 Cal.App.4th 709, where another panel of this court held an LWOP sentence imposed upon a juvenile defendant for kidnapping for ransom (§ 209, subd. (a)) violated the Eighth Amendment. (Id. at p. 738.)
Graham is an exception to the court's traditional Eighth Amendment review of sentences not involving the death penalty. That review "contains a 'narrow proportionality principle,' that 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' [Citation.]" (Graham, supra, __ U.S. at p. __ .) As a result, Eighth Amendment death penalty cases "'are of limited assistance in deciding the constitutionality of the punishment' in a noncapital case. [Citation.]" (Solem v. Helm (1983) 463 U.S. 277, 289.)
In performing this narrow proportionality review, the court first compares the gravity of the offense to the severity of the sentence. (Graham, supra, __ U.S. at p. __ .) "'[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction with the sentences imposed for the same sentence in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate, the sentence is cruel and unusual. [Citation.]" (Ibid.)
a. Facial Challenge
Defendants' challenges lack merit. Each was sentenced to a term of 50 years to life plus a consecutive term of life with the possibility of parole for a murder and an attempted murder. The Supreme Court in Graham considered a facial challenge to the sentence imposed therein, not an as applied challenge. Graham's categorical prohibition was specifically limited to an LWOP sentence imposed on a juvenile for a nonhomicide offense. (Graham, supra, __ U.S. at p. __ ["issue before the Court is whether the Constitution permits a juvenile offender to be sentenced to [LWOP] for a nonhomicide crime"].)
Defendants fail to cite any authority for the proposition that a life sentence for a homicide is, on its face, an Eighth Amendment violation. There is contrary authority. LWOP, "[l]ike any other prison sentence, . . . raises no inference of disproportionality when imposed on a murderer." (Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 585 [denying cruel and unusual punishment challenge by 15-year old].) Here, of course, defendants do have the possibility of parole.
"Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide." (Graham, supra, __ U.S. at p. __ .) "[D]efendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. [Citations.]" (Id. at p. __ .) Thus, "while incapacitation may be a legitimate penological goal sufficient to justify life without parole in other contexts, it is inadequate to justify that punishment for juveniles who did not commit homicide." (Id. at p. _ [130 S.Ct. at p. 2029.)
The requirement that all sentenced juveniles have "some realistic opportunity to obtain release" in his or her lifetime regardless of the offense committed, including multiple murders cannot be read into the Graham decision. (Graham, supra, __ U.S. __ at p._.) The requirement placed on the state by the Eighth Amendment is to assure all juveniles sentenced on nonhomicide crimes obtain that opportunity. (Ibid.) Moreover, the sentence imposed upon defendants provide that opportunity. The Eighth Amendment does not categorically prohibit defendants' sentences. Therefore, we deny the facial challenge.
Because we find Graham's categorical prohibition does not apply to defendants given the fact that they have been convicted of homicide, we have no occasion to address the decision in People v. Mendez (2010) 188 Cal.App.4th 47, holding Graham's categorical rule does not apply to sentences of 84 years to life and 110 years to life, respectively, when imposed on juveniles in nonhomicide cases. The Mendez court did conclude the sentence imposed in that case violated the Eighth Amendment as applied to Mendez's sentence. (People v. Mendez, supra, 188 Cal.App.4th at pp. 67-68.)
b. As Applied Challenge
While a sentence may not be categorically prohibited by the Eighth Amendment (i.e., subject to a facial challenge), the sentence may nonetheless violate the Eighth Amendment as applied to the defendant. (Ewing v. California (2003) 538 U.S. 11, 20.) "Embodied in the Constitution's ban on cruel and unusual punishment is the 'precept of justice that punishment for a crime should be graduated and proportioned to [the] offense.' [Citation.]" (Graham, supra, _ U.S. at p. _ .) "[T]hree factors may be relevant to determine whether a sentence is so disproportionate that it violates the Eighth Amendment: '(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.' [Citation.]" (Ewing v. California, supra, 538 U.S. at p. 22.) Successful as applied challenges under the Eighth Amendment, however, are "exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272.)
For example, in Weems v. United States (1910) 217 U.S. 349, the court struck down a sentence of 15 years of cadena temporal imposed by a court in the Phillipines, for making a "false entry" in a public record. (Id. at pp. 358, 363, 382.) Cadena temporal required the person to work at hard and painful labor for the benefit of the state, while carrying a chain at the ankle and hanging from the wrist. In addition to other "accessory penalties," the defendant was denied any "'assistance whatsoever from without the institution.'" (Id. at p. 364.)
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The gravity of the offenses and the harshness of the sentences here are readily apparent. When a defendant who has been convicted of a nonhomicide offense but sentenced to a term commonly pronounced in connection with a homicide, it is not uncommon to contrast the underlying offense with murder. (See e.g. Coker v. Georgia, supra, 433 U.S. at p. 592 [comparing rape to murder].) Murder is, of course, the gravest of offenses. The sentence imposed in this case, 50 years to life plus a consecutive sentence of life in prison, is by any definition severe. Only a life sentence with a greater minimum term, LWOP, or death are more severe. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy, J.) [LWOP sentence for possession of more than 650 grams of cocaine did not create an inference of disproportionality].)
In comparing the gravity of the offense with the severity of the sentence, the court does not consider the offense in the abstract. "This analysis can consider a particular offender's mental state . . . ." (Graham, supra, _ U.S. at p. _ (conc. opn. of Roberts, C.J.).) Thus, when the particular sentence under consideration was imposed on a juvenile, it is here the defendant's age and those factors relating to his/her age are considered. (Id. at p. _ (conc. opn. of Roberts, C.J.).)
The question then is whether the 50 years to life sentence plus a consecutive term of life in prison imposed upon one juvenile barely 14 years old and another who is 15, just short of his 16th birthday, at the time of the offenses of murder with a gun and attempted murder with a knife are "grossly disproportionate" to the crimes. (Graham, supra, _ U.S. at p. _ .) "The Court holds today that it is 'grossly disproportionate' and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide." (Id. at p. _ (dis. opn. of Thomas, J.), italics added.) Given the decisions of the United States Supreme Court, we cannot say a sentence that provides an individual an opportunity in his life to obtain release on parole at some point in his life, should he demonstrate his suitability, is grossly disproportionate to the crimes for which defendants have been convicted. Accordingly, we deny defendants' Eighth Amendment as applied challenge.
2. The California Constitutional Prohibition
"Cruel or unusual punishment may not be inflicted or excessive fines imposed." (Cal. Const., art. I, § 17.) We approach the task of determining whether a sentence violates this constitutional provision with a full appreciation of the fact that the Legislature appropriately defines crimes and the punishment for their commission. (In re Lynch (1972) 8 Cal.3d 410, 414.) However, "'the final judgment as to whether the punishment it decrees exceed constitutional limits is a judicial function.' [Citations.]" (Ibid.) A sentence violates the state Constitution "if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 424, fn. omitted.)
A sentence that does not violate the Eighth Amendment cruel and unusual punishment clause may still violate our article I, section 17 of the state constitution. (See In re Alva, supra, 33 Cal.4th at p. 291 and cases cited therein.) For example, in People v. Dillon (1983) 34 Cal.3d 441 (Dillon), the court found a sentence of 27 years to life for first degree murder cruel or unusual punishment as applied to an immature 17 year old who did not intend to kill.
"A [defendant] attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and the defendant's background, (2) the punishment for more serious offenses, or (3) the punishment for similar offenses in other jurisdictions. [Citation.]" (In re Nunez, supra, 173 Cal.App.4th at p. 725.)
a. Intrastate Comparison
A special circumstance murder is punishable by death or life in prison without the possibility of parole. (§ 190.2, subd. (a).) Section 190.5 prohibits the imposition of the death penalty upon any minor. (§ 190.5, subd. (a).) That section also authorizes a court in the exercise of its discretion to sentence a defendant under 18 years old at the time of the murder (but at least 16 years old), to a term of 25 years to life instead of LWOP. (§ 190.5, subd. (b).)
b. The Defendant and the Crime
Although we find defendants' sentences does not violate the Eighth Amendment under United States Supreme Court Eighth Amendment jurisprudence, the high court's recognition of the diminished culpability of juveniles is apt here. "[A]s any parent knows and as the scientific and sociological studies . . . tend to confirm, '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.' [Citations.]" (Roper v. Simmons, supra, 543 U.S. at p. 569.) Another difference between adults and juveniles "is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. [Citation.]" (Ibid.) "'Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.]"' (In re Barker (2007) 151 Cal.App.4th 346, 376.)
Additionally, the "character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. [Citation.]" (Roper v. Simmons, supra, 543 U.S at p. 570.) Thus, the "susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult.' [Citation.] Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, '[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.' [Citations.]" (Ibid.) For these reasons, society views juveniles "as 'categorically less culpable than the average criminal.'" (Id. at p. 567.)
As noted above, the defendant in Dillon was 17 years old at the time of his offense when he and seven other high school classmates armed themselves with a variety of weapons — Dillon was armed with a .22-caliber rifle — to steal marijuana being grown in a secluded area they knew was under surveillance by the grower(s). (Dillon, supra, 34 Cal.3d at p. 451.) During the failed attempt, defendant heard two shotgun blasts in the distance and feared a friend had been fired on by a grower. (Id. at pp. 452, 482.) Upon seeing one of the growers approaching with a shotgun, and feeling he was trapped, Dillon rapidly fired nine shots in the grower's (Johnson) direction, killing him. (Id. at pp. 482-483.) The jury found Dillon guilty of first degree murder under the felony-murder rule, although it regretted the law required it to do so. (Id. at pp. 484-485.) The trial court reluctantly sentenced Dillon for first degree murder. Under Board of Prison Terms regulations in effect at the time, Dillon faced a base term of 14, 16, or 18 years plus an additional two years for the use of a firearm. (Id. at p. 487, fn. 37.) On review, the Supreme Court found the sentence was cruel or unusual under the state Constitution, reduced the crime to second degree murder, and remanded the matter to the trial court for resentencing. (Id. at p. 489.)
The court found "[e]specially relevant" to its determination examination of the defendant and the crime. (Dillon, supra, 34 Cal.3d at p. 479.) In considering the crime, the court does not view it in the abstract. Rather, it should consider "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such facts as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his act." (Ibid.) "Secondly, it is obvious that the courts must also view 'the nature of the offender' in the concrete rather than the abstract . . . . This branch of the inquiry therefore 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." (Ibid.)
There are notable differences between the facts in Dillon and those present here. On one side of the coin, Dillon was convicted under a felony-murder theory, which means he was liable for murder without forming an intent to kill. Defendants here were convicted of murder on a natural and probable consequences theory and as aiders and abettors. They were convicted of attempted murder because they personally committed it.
On the other side of the coin and more compelling, Dillon was 17 years old at the time of his crime. Here defendant Pacheco was three years younger and defendant Lugo was over one year younger than Dillon.
"Here, it can be reasonably assumed that [defendant] was influenced by peer pressure. He did not commit his crimes alone, but with fellow gang members . . . ." (People v. Mendez, supra, 188 Cal.App.4th at p. 65.) Some of the other gang members were older than defendants.
Recognizing that defendant Pacheco was only 14 and defendant Lugo only 15 when the crimes were committed, we nonetheless must consider the circumstances and nature of the crimes they committed. The motive for the offense was gang retaliation and the crimes were premeditated and planned. The participants armed themselves and traveled by car to hunt down possible victims to attack. Before the crimes, defendant Pacheco solicited the assistance from others to commit the crimes, and he warned others the gun was loud and there were only six bullets. During the crimes, defendant Lugo stayed longer than the others as he continued to beat the victim; once he started back to the car, he again returned to the victim to kick him in the head. After the crimes, each defendant bragged that they stabbed the victim, and defendant Lugo took the gun from Ruiz and placed it in his waistband. Clearly, they intended to kill Aguirre. They each aided and abetted in the murder of Sanchez, and they went on the "mission" armed with weapons themselves, and knowledge that at least one gun was in the hand of a gang member. Three of the incidents described in defendant Pacheco's probation report involve violence. Defendant Lugo previously committed a vehicle burglary. While they will be very old men when they are eligible for parole, should they live long enough, some day they will be eligible. Under these circumstances, we cannot find their punishment is cruel and unusual.
Admission of Ruiz's Statement
Defendant Lugo argues, and defendant Pacheco joins in the argument, that the trial court prejudicially erred in admitting evidence of Ruiz's interview with the police. Alternatively, they argue the court erred in denying the request for severance.
"When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials." (§ 1098.) The denial of severance motion is reviewed for abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 720.)
In Bruton v. United States, supra, 391 U.S. 123, the United States Supreme Court determined a defendant is deprived of his right to confrontation under the Sixth Amendment if a nontestifying codefendant's confession inculpating a defendant is admitted despite jury instructions to ignore any such inculpation. (Id. at p. 137.) But in Richardson v. Marsh (1987) 481 U.S. 200, the court stated: "We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Id. at p. 211, fn. omitted.)
In People v. Smith (2005) 135 Cal.App.4th 914, the court faced a similar challenge to the one here, and stated: "The Aranda/Bruton rule bars admission in a joint trial of one defendant's out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant. [Citations.] The rule recognizes the jury may struggle to obey such a limiting instruction when both defendants are in the courtroom, tried for the same crime, and an unfair danger exists the jury will improperly consider the hearsay confession against the nondeclarant codefendant. [Citation.] To avoid this danger, the court must either sever the trials or redact the statement to avoid references to the codefendant. [Citation.]" (Id. at pp. 921-922.)
In People v. Fletcher (1996) 13 Cal.4th 451, the California Supreme Court found the admission of a codefendant's statement to be "strongly incriminating" against the defendant. (Id. at pp. 469-470.) But it also stated that "a confession that is redacted to substitute pronouns or similar neutral and nonidentifying terms for the name of a codefendant will be sufficient if the codefendant was just one of a large group of individuals any one of whom could equally well have been the coparticipant mentioned in the confession. [Citations.]" (Id. at p. 466.)
Here defendants Lugo and Pacheco were members of a large group. Ruiz did not mention them by name in the version of his statement admitted into evidence. We find the trial court's redaction of Ruiz's statement to the police, along with the limiting instruction, prevented any violation of defendants' right to confrontation. We also find the trial court did not abuse its discretion when it denied defendants' motion for severance. Even if there was error, however, it was harmless beyond a reasonable doubt. Besides much evidence about defendants being on a retaliatory mission for the gang, both defendants admitted they stabbed Aquirre. (Chapman v. California (1967) 386 U.S. 18, 24.)
Ortega's Prior Statement
Lugo argues on appeal the trial court erred when it admitted evidence of Ortega's interview with the police as a prior consistent statement. He says in his brief: "During cross-examination the defense attempted to show Ortega's testimony was influenced by his desire to avoid prison."
On direct examination, Ortega testified he pled guilty to committing manslaughter and admitted a gang enhancement and "two strikes." He said he expected to be sentenced to six years in prison. He was told he faced life without the possibility of parole but that if he testified truthfully, he would receive six years. While under cross-examination, Ortega admitted he cooked up a story with Camacho and tried to "sell the story to the officers." He admitted he was trying to negotiate with detectives, and that he faced life without the possibility of parole if he did not "cut this deal."
When the prosecutor requested permission to play the initial police interviews of Ortega and Camacho, the court conducted a hearing wherein several portions of the interviews were ordered redacted pursuant to defense objections. Then the court permitted Huntington Beach Detective Tom Weizoerick to testify about his interaction with Ortega and Camacho when the two were first arrested on January 19. The two were placed in the backseat of separate patrol cars. They were kept separated in the jail. Weizoerick interviewed Camacho for two hours and then interviewed Ortega, and then he returned to reinterview Camacho. A recording of redacted interviews was played and the jury was given copies of redacted transcripts.
In People v. DeSantis (1992) 2 Cal.4th 1198, the defendant also argued a witness's motive to fabricate arose at an earlier time before he spoke with the police, "when he realized he could bear the entire penal consequences of the incident." (Id. at p. 1229.) The prosecution contended, just as in the instant case, the statement was admissible as a prior consistent statement, and the Supreme Court agreed, stating that "the defense examination of an accomplice turned prosecution witness implied that a plea bargain that the accomplice had accepted provided an additional motive to testify untruthfully. 'This, in turn, entitled the prosecution to show that [the accomplice's] testimony was consistent with the [apparently hearsay] recorded statement he gave shortly after his arrest but before the "deal" was consummated, that is, before the subsequent, specific motive to fabricate arose. [Citations.]' [Citation.]" (Ibid.)
Under the circumstances in this record, we cannot conclude the trial court erred. Nor can we conclude defendant was deprived of his constitutional rights. The fundamental premise of due process requires that a party be afforded an opportunity to examine and respond to evidence, which may deprive him or her of life, liberty, or property. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) Here defense counsel were afforded ample opportunity to cross-examine witnesses and to call witnesses on defendants' behalf. The statements Ortega made to the police at the time they were arrested and prior to plea bargain agreements were properly admitted as prior consistent statements. While we do not find any error, had there been error, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Jury Instruction
While he concedes he did not request CALCRIM No. 522, Lugo contends "the trial court prejudicially erred in failing to instruct the jury that provocation could negate premeditation and deliberation and instruct on the nature of provocation." Pacheco joins the argument.
In his argument, defendant Lugo says the evidence supported the instruction: "Here, evidence showed the victims and defendants were from rival gangs, members of the victims' gang crossed out graffiti from [defendant's] gang, people in [defendant's] group were drinking alcohol prior to driving to Amberleaf, the victims threw gang signs at [defendant's] group and one victim fought the attackers."
"Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]" (CALCRIM No. 522.)
The court has no sua sponte duty to instruct with CALCRIM No. 522. (People v. Rogers (2006) 39 Cal.4th 826, 879.) Defendant Lugo did not request it. Further, his argument the evidence here demonstrates the court had a duty to give the instruction even though it was not requested is unpersuasive to say the least.
Nor was his counsel ineffective for not requesting it. The defense theory was that the witnesses were liars, "fingerprints don't prove anything," and that there was no proof Lugo was the one who wore the blood-stained Dallas Cowboys jersey. Lugo's counsel summed up his argument when he said: "Failure of proof leads to reasonable doubt." Pacheco's lawyer argued: "So the point is — the question is — one of your tools is: Has the government shown you beyond a reasonable doubt that the blood in the back of that Suburban was there because of what happened on Delaware or was there some other time? That's the issue. That's the point." The defense theory at trial was inconsistent with the theory of provocation now being argued. Under an objective standard of reasonableness under prevailing professional norms, there is no reasonable probability that, but for counsel's not requesting CALCRIM No. 522, the result would have been more favorable for either defendants Lugo or Pacheco. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Restitution
Defendant Pacheco argues that, since the trial court ordered an identical amount of restitution to be paid by both defendants, the abstract of judgment should be amended to reflect they are jointly and severally liable. Defendant Lugo joined. The Attorney General agrees, and so do we. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
III
DISPOSITION
The judgments are affirmed as modified. The trial court is directed to prepare an amended abstract of judgment and to forward certified copies of it to the Department of Corrections and Rehabilitation.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.