Opinion
C041002.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMAR FLOYD SANDLEY, Defendant and Appellant.
A jury convicted defendant Jamar Sandley of second degree murder (Pen. Code, § 187, subd. (a)) and found he intentionally and personally discharged a firearm, proximately causing death (Pen. Code, § 12022.53, subd. (d); further section references are to the Penal Code unless otherwise specified). He was sentenced to an aggregate term of 40 years to life in state prison.
On appeal, defendant contends the judgment must be reversed due to evidentiary error and numerous instructional errors, and argues that the section 12022.53 enhancement is unconstitutional for various reasons. We shall affirm the judgment.
FACTS
Mohammed Saddique owns a gas station and grocery store in Sacramento. At 11:30 p.m. on May 2, 2001, he saw Sammy Pasioles enter the store with an older man wearing a hat. Saddique heard Pasioles asking the older man, "Did you see that kid?" Pasioles appeared to be nervous.
At about the same time, Melissa Robles and her boyfriend, Chris Hennessy, drove to the store and parked in front. Hennessy went into the store while Robles remained outside. Robles saw an older man wearing a hat enter the store, and observed Pasioles holding the door open. Robles also observed an African-American teenager wearing a black sweatshirt (later identified as defendant) walking towards the front of the store. Robles was worried about Pasioles and kept her attention on him because he appeared to be scared.
Pasioles yelled at defendant: "Why are you coming up like this, you know. Whats up? Why are you coming over here? Dont come over here like this." He also asked why defendant was creeping up on him. Defendant responded: "Whats up? You know, we used to be friends. Why dont you come out here, and, you know, lets talk."
Defendant sounded calm, and Robles got the impression that he really only wanted to talk. She saw Pasioles, who was still holding the door open with one hand, put his other hand in his pants behind his back. Her first impression was that Pasioles had a gun.
From inside the store, Saddique and Hennessy could see that Pasioless right hand was tucked into the waistband of his pants and that he did not have a gun. According to Hennessy, it "seemed like [defendant] was trying to get [Pasioles] outside." Defendant was dressed all in black, and had his hand in his sweater pocket. Defendant appeared calm, but Pasioles was agitated. Hennessy heard Pasioles say: "If you make me mad, Im gonna hurt you. You know Ill hurt you."
Shabby Lymons, who was at a gas pump, saw the two men arguing. Pasioles left the store and walked over to the passenger side of Robless car. He had a scared look on his face. Neither Robles nor Lymons ever saw Pasioles walk toward defendant.
Defendant calmly moved closer to the car and said to Pasioles: "We used to be cool." Pasioles responded: "Dont you know Ill fuck you up." At this point, defendant said "fuck this shit," pulled out a handgun, and started shooting at Pasioles while chasing him around the car. Screaming as if he were hit, Pasioles tried to go back into the store. But defendant chased him down and Pasioles crashed into the front door, causing the glass to break.
Pasioles turned and grabbed the wrist of the hand in which defendant held the gun. However, defendant lifted up his hand, pointed the gun down, and shot Pasioles. As Pasioles appeared to lose strength, defendant started beating him in the head with the gun and continued doing so after Pasioles fell to the ground.
Lymons and Saddique identified defendant as the gunman; however, Robles and Hennessy were unable to do so.
Deputy Sheriff Daniel Brown, who responded to Saddiques 911 call, found Pasioless lifeless body lying in a pool of blood. Brown located shell casings outside the store, but did not find a gun or any other weapons. The shell casings were fired from the same .380 caliber handgun. A .380 caliber bullet was removed from Pasioless body.
Dr. Walter Finkbeiner, who performed the autopsy on Pasioles, discovered a gunshot wound to Pasioless left shoulder and one to his left forearm. The bullet entering Pasioless shoulder caused his death when it fractured the first rib and lacerated his aorta and right lung. Pasioles also had multiple lacerations to his face and injuries to the top and back of his head. The fatal shot was fired from a distance of approximately 6 to 24 inches away, while the wound to Pasioless arm was fired from a distance of around 6 to 8 feet.
An analysis of Pasioless blood revealed that it contained . 03 micrograms per milliliter of PCP, a "mid zone" amount for someone under the influence. PCP can cause combativeness and agitation. No other drugs or psychotropic medications were detected.
During a videotaped interview on May 5, 2001, conducted by Detective David Wright, defendant stated the following:
Around 10:00 p.m. on the night of the shooting, defendant had a "crack head"—whom he met while "walking down the street"—rent him a motel room on Stockton Boulevard. Defendant then picked up a prostitute and spent half an hour with her before taking a shower and falling asleep. He denied shooting Pasioles, and said he had not seen him for several months. He admitted being at Saddiques market at 7:00 or 8:00 p.m., but stated he was wearing all white clothing.
Later, defendant changed his story and said that he saw a man named Mark Smith having words with Pasioles in front of the market. According to defendant, he heard someone say: "Fuck you. Give me my money." As Pasioles started to walk away, defendant heard several "pops" and saw Smith, who was wearing all black, running away. Defendant went over to Pasioles who was on the ground, kicked him, and ran off. He claimed that the person who shot Pasioles no longer was in Sacramento—the person was on a plane to Hawaii.
Defendant then told Detective Wright the "truth." He claimed that he walked up to the store, saw Pasioles, and said: "Whats up?" Pasioles responded in kind. Thereafter, "some other mother fuckers pulled up" nearby "talking shit" about the Crips and had a confrontation with Pasioles. Defendant admitted that he had lied about Mark Smiths involvement, and claimed that a person named Bread, who lived on 29th Street, shot Pasioles. Bread told defendant: "Keep your mouth quiet." According to defendant: "This man is gonna kill me."
Defense
Dr. Richard Montgomery, a psychiatrist with the UC Davis Medical Center, treated the victim in the spring of 2001 and diagnosed him with a nonspecific psychosis, substance-induced mood disorder, and antisocial personality disorder. At times, Pasioles was argumentative and aggressive with the staff and made threatening statements. At one point, he was placed in restraints, which normally occurs when a person is a danger to himself or herself or exhibiting self-destructive behavior.
Defense counsel argued that defendant shot Pasioles in self-defense because Pasioles, who was under the influence of PCP, threatened to "fuck [defendant] up," and appeared to be hiding a gun behind his back.
DISCUSSION
I
Defendant contends the trial court erred in excluding evidence that Pasioles had the tattoo "SAC" on his stomach, which presumably was a reference to a gang affiliation. We disagree.
Prior to trial, the People moved to exclude this evidence pursuant to Evidence Code section 352.
The "only reservation" expressed by defense counsel was the following: If evidence were introduced that, after Pasioles died, his gang "came down and shot up Morningstar" (the street where defendant lived), counsel believed the evidence of Pasioless tattoo should be admitted "to connect him up with that gang activity."
The court pointed out that defense counsel had sought and obtained the exclusion of evidence that defendant belonged to a gang or that his fight with Pasioles was gang-related. If this was not a gang case, the court asked, why did it matter if the victim had a tattoo?
Defense counsel responded that, if the court allowed the prosecutor to introduce the fact that defendant spent the night at a hotel using someone elses identification rather than staying at home, and if the rebuttal evidence was that Pasioless gang came and shot up defendants neighborhood in retaliation for his murder, the tattoo supported the theory that defendant left home because he was afraid of gang retribution, not because he was hiding from the police.
The court ruled the evidence was inadmissible, stating: "But your only reason for getting into that would be to show his state of mind that he was fearful and that is why he left the neighborhood. [P] So whether the victim was or was not a member of a gang is not important. The only thing that is important is that if your client — that there may be someone in a gang that might harm him if they thought that he had shot the victim. [P] I dont see the victims tattoos as being relevant."
On appeal, defendant claims the evidence was relevant for numerous reasons. First, he contends it would have bolstered his claim of self-defense because Pasioless gang membership made defendants fear of him more reasonable and believable, since a threat of violence is more credible when it comes from a known gang member. He also asserts the evidence of Pasioless gang affiliation could have supported defendants assertion of third party culpability. In defendants statement to the police, he indicated that Pasioles was shot by members of the Crips. Evidence that Pasioles was in a rival gang would provide a motive for the killing. In addition, defendant argues the evidence of Pasioless gang affiliation would support a theory that defendant was afraid of gang retaliation for killing Pasioles even if it was in self-defense, and this would explain why he told various false stories to the police, since it was safer to deny any complicity than to risk gang retribution. Lastly, defendant reiterates his offer of proof in the trial court, which indicated the evidence was relevant to explain why he was hiding across town in a motel room.
Except for this last reason, all of the reasons defendant proffers on appeal regarding why he believes the evidence should have been admitted were not raised in the trial court. Hence, the claims regarding the evidences relevancy, other than one he raised in trial court, are waived. (People v. Anderson (2001) 25 Cal.4th 543, 580; Evid. Code, § 354, subd. (a) [no judgment may be reversed for the erroneous exclusion of evidence unless "the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means"]; People v. Schmies (1996) 44 Cal.App.4th 38, 53 ["An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific."].)
As to the only claim preserved for appeal, defendant does not point to any evidence, with a supporting record citation, that he was hiding in a motel across town because he was afraid of gang retribution for having killed Pasioles in self-defense. Absent this evidence, which was the basis for defendants request to use Pasioless gang tattoo as corroboration, the trial court properly excluded the evidence.
In any event, exclusion of the evidence was not prejudicial. The fact the victim had a tattoo suggesting gang affiliation did not diminish the overwhelming evidence that defendant chased the unarmed victim around a car, shot him twice, and then beat him with the gun, merely because the victim did not want to talk to defendant and threatened to hurt him if he did not go away. Simply stated, there was no persuasive evidence of provocation that would lead to the use of deadly force or the need for self-defense.
Moreover, there is no evidence that defendant was aware of the victims tattoo, or that it was readily visible on the victims stomach when he had a shirt on, or that defendant knew the "SAC" tattoo was a gang reference. Absent such evidence, the tattoo does not tend to support an inference that defendant was afraid of the victim because he was a gang member. (People v. Cash (2002) 28 Cal.4th 703, 726.) Indeed, if evidence of the tattoo had been admitted, the jury was likely to believe that defendants assault on the victim was gang-related. For all of these reasons, it is not reasonably probable that the jury would have returned a verdict more favorable to defendant if evidence of the victims tattoo had been admitted. (People v. Cudjo (1993) 6 Cal.4th 585, 611, 863 P.2d 635; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
II
Defendant argues the trial court erred in instructing the jury in the language of CALJIC No. 5.54 as follows: "The right of self-defense is only available to a person who initiated an assault if he has done all the following: [P] One, he has actually tried, in good faith, to refuse to continue fighting; [P] Two, he has clearly informed his opponent that he wants to stop fighting; and [P] Three, he has clearly informed his opponent that he has stopped fighting. [P] After he has done these three things, he has the right to self-defense if his opponent continues to fight."
According to defendant, this instruction should not be given where the accused initiated an assault based upon a reasonable, albeit mistaken, belief in the need for self-defense. He contends a person is entitled to use self-defense based on the appearance of danger, rather than waiting until his opponent initiates the assault. (People v. Collins (1961) 189 Cal. App. 2d 575, 588, 11 Cal. Rptr. 504.) Thus, he argues, the right of self-defense is available to a person who initiates an assault, but the instruction erroneously suggests otherwise. In defendants view, the instruction undermined his defense, which was based on the theory that Pasioles appeared to be in the process of drawing a gun from behind his back, thereby necessitating defendants preemptive strike.
We conclude the instruction was warranted because, even if defendant initially had the right to use self-defense against Pasioles, defendant was not entitled to claim he was still acting in self-defense when Pasioles ran away after being shot in the wrist and defendant chased after the obviously unarmed victim, fatally shot him, and bludgeoned him with the gun. The instruction did not state that defendant was not entitled to use self-defense in the first place, only that he could not continue to do so unless he first attempted to withdraw.
Furthermore, other instructions given by the court apprised the jury that defendant was entitled to use self-defense if he reasonably believed that Pasioles presented an imminent danger to defendants physical safety (CALJIC No. 5.12) and defendant was confronted with the appearance of danger which would arouse an actual and reasonable belief that he was about to suffer great bodily injury or death (CALJIC No. 5.51). When the instructions are read as a whole, there is no reasonable likelihood that the jury misconstrued the challenged instruction in the manner defendant contends. (People v. Frye (1998) 18 Cal.4th 894, 957, 959 P.2d 183; People v. Cain (1995) 10 Cal.4th 1, 36, 892 P.2d 1224.)
III
Defendant also claims the trial court erred in instructing the jury with CALJIC No. 5.55 as follows: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."
According to defendant, the instruction was not warranted because there was no substantial evidence that he instigated a quarrel with Pasioles; rather, the evidence showed that he spoke with Pasioles calmly and that Pasioles was upset by the mere sight of defendant. Furthermore, defendant argues, since he was entitled to go to the market, his mere presence there cannot be enough to deny him the right to self-defense. (Quoting People v. Gonzales (1887) 71 Cal. 569, 578, 12 P. 783 ["For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack"].) We are not persuaded.
The evidence showed Pasioles entered the store and nervously asked: "Did you see that kid?" (a reference to defendant). Then, when defendant approached him, Pasioles asked in a high-pitched voice why defendant was creeping up on him or coming around, and told defendant not to do so. Despite Pasioless obvious fear and desire to be left alone, defendant tried to get him to come outside. When Pasioles told defendant he would "fuck [him] up," defendant chased Pasioles and shot him.
If defendant was truly afraid of Pasioles and believed that he had a gun behind his back, defendant would not have persisted in speaking to him or invited him outside—particularly in light of Pasioless clear expression of his dislike of defendant and his desire for defendant to go away. The aforementioned evidence supports an inference that defendant attempted to goad Pasioles into coming outside and fighting with him with the intent to create the apparent necessity of using self-defense. Therefore, the trial court did not err in instructing the jury with CALJIC No. 5.55.
IV
The trial court instructed the jury with CALJIC No. 8.11 in pertinent part as follows: "Malice may be either express or implied. [P] Malice is express when there is manifested an intention unlawfully to kill a human being."
During its deliberations, the jury asked for "clarification of the word manifestation" and also asked for "clarification on express malice." The court advised the jury: "Manifestation means indicated or shown. [P] Express malice means a person indicates or shows an intention to unlawfully kill another human being.
The definitions of manifestation and implied malice provided by the trial court were not incorrect. "Show" is a synonym for the word "manifest" when it is used as a verb, and "manifestation" means an act of showing or displaying. (Rogets II, The New Thesaurus (Expanded ed. 1988) p. 622.) "Manifest" also is defined as "to make evident or certain by showing or displaying" (Websters 9th New Collegiate Dict. (1983) p. 724), or "evident to the mind, not obscure or hidden, . . . open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident. In evidence, that which is clear and requires no proof; that which is notorious." (Blacks Law Dict. (5th ed. 1979) p. 867, col. 2.) In addition, "manifestation" means "an outward or visible expression." (Websters New Encyclopedic Dict. (1993) p. 608.)
Defendant contends the clarifying instructions were incorrect because, in his view, express malice is not what a person indicates or shows, but rather "a specific intent to unlawfully kill another human being, harbored as an actual state of mind." He believes the instruction given did not convey to the jurors that they must ascertain the defendants actual state of mind, and it detracted from his defenses of heat of passion and imperfect self-defense by indicating that whether he harbored the mental state necessary to these defenses could be determined "merely [by] his external exhibition of passion, or lack thereof."
What defendant overlooks is that an accuseds actual state of mind is never truly known except by the accused. ""The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act. . . ." [Citation.]" (People v. Coddington (2000) 23 Cal.4th 529, 584, fn. 23, disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
In other words, the jury had to rely on evidence regarding defendants statements, activities, and demeanor to determine whether he had the requisite malice. Some of those indicators are so blatant they demonstrate express malice, e.g., intentionally shooting a person at point-blank range without justification. Other indicators are less clear but still demonstrate implied malice, e.g., shooting blindly into a crowd of people, which is an activity the natural consequence of which is dangerous to human life. In the latter circumstance, it does not matter whether the defendant actually harbored an intent to kill and malice because such mental states are implied from the nature of his actions.
The trial courts clarifying instructions, in conjunction with its other instructions regarding malice, correctly informed the jury that express malice can be shown by defendants actions. (See People v. Rivera (1981) 127 Cal. App. 3d 136, 179 Cal. Rptr. 384 (hereafter Rivera); People v. Welch (1999) 20 Cal.4th 701, 976 P.2d 754 (hereafter Welch).
In Rivera, the accused was charged with assault with intent to commit murder. The trial court instructed the jury in pertinent part: "The intent to murder is the intent to unlawfully kill a human being with malice aforethought. Malice is shown when there is manifested an intent to unlawfully kill a human being. [P] To manifest means to show or demonstrate plainly." (127 Cal. App. 3d at pp. 151-152, fn. 7; some italics omitted.) Rivera found that "the inclusion of the dictionary definition of manifest, i.e., to show or demonstrate plainly, [in connection with instructions regarding malice] was entirely appropriate and helpful, translating the term into laymans language. (See the American Heritage Dict. of the English Language (new college ed. 1979) p. 794, col. 1.)" (Rivera, supra, 127 Cal. App. 3d at p. 153.) Rivera noted the "difficulty of formulating an inclusive or comprehensive definition of the malice aforethought which distinguishes murder from manslaughter has been judicially recognized." (Ibid., citing People v. Gorshen (1959) 51 Cal.2d 716, 730, fn. 11, 336 P.2d 492, disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324, 149 Cal. Rptr. 265, 583 P.2d 1308.) Nevertheless, it held that, when read in its entirety, "the malice instruction [given by the court] thoroughly stated the law pertinent to malice in view of the evidence presented." (Rivera, supra, 127 Cal. App. 3d at p. 153.)
Similarly, Welch concluded that the trial court did not err prejudicially when it gave the jury correct instructions defining express malice, but also advised the jury: "In other words, express malice is where the activity shows an intent to kill." (20 Cal.4th at p. 755.) Welch determined that, when the clarification was read in context with the courts delivery of the standard instruction on express malice, the statement was reasonably understood as merely further clarifying for the jury the difference between express and implied malice. (Id. at pp. 755-756.)
The same is true here. Nothing about the trial courts clarification of the express malice instruction was likely to mislead the jury about the meaning of express malice. And it did not contravene the instructions regarding implied malice, a theory of second degree murder that was amply supported by the evidence.
In addition, contrary to defendants claim otherwise, nothing about the courts clarifying instructions was likely to cause the jury to misinterpret or misapply the courts other instructions regarding the defenses upon which defendant relied at trial.
To establish that a homicide was committed "upon a sudden quarrel or heat of passion" ( § 192, subd. (a)), there must be evidence that "the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an "ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 163, 960 P.2d 1094.) Imperfect self-defense requires an actual belief in the necessity to defend against imminent peril to life or great bodily injury, even if the belief is unreasonable. (People v. Michaels (2002) 28 Cal.4th 486, 529; In re Christian S. (1994) 7 Cal.4th 768, 773, 872 P.2d 574.)
Whether a person is acting under the influence of a heat of passion or an actual fear of great bodily injury or death generally is determined from all the surrounding circumstances, including the persons demeanor. Neither mental state is a dispassionate one, and a person harboring such fear or passion does not typically appear to be calm and under control, as did defendant. Thus, the fact that he appeared calm when he talked with Pasioles immediately before shooting him was a proper factor for the jury to consider in deciding whether defendant acted under a heat of passion or in self-defense.
In any event, we are satisfied beyond a reasonable doubt that defendant was not harmed by the clarifying instructions. There was ample evidence of express or implied malice, but weak evidence, if any, to support imperfect self-defense, or heat of passion, or provocation. Defendant used deadly force in response to Pasioless verbal assault simply because he believed Pasioles "might" have had a gun behind his back. In contravention of his alleged fear of Pasioles, defendant invited Pasioles into the parking lot, even though it was obvious that Pasioles did not wish to interact with him and wanted defendant to leave. Defendant then shot Pasioles, chased him around a car, shot him again at close range, and beat him with the firearm. This evidence does not demonstrate that defendant was reacting rashly based on some objectively reasonable passion when he shot Pasioles, or that he honestly feared his life was in danger when he initiated the assault against Pasioles. Rather, the evidence discloses that defendant shot Pasioles in cold blood after Pasioles vehemently asked defendant to go away and threatened to "fuck [him] up" if he did not leave.
Because the evidence against defendant overwhelming supported the second degree murder verdict on either an express or implied malice theory, we are satisfied that the clarifying instructions did not prejudice defendant.
V
In addition to sentencing defendant to 15 years to life for second degree murder, the trial court imposed a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d), which states in part: "Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), . . . and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Defendant argues the enhancement cannot stand because of various instructional errors. We disagree.
A
Defendant claims the trial court erred prejudicially in failing to define proximate cause for the jury as it is used in section 12022.53.
People v. Bland (2002) 28 Cal.4th 313 (hereafter Bland) held it is error not to advise the jury that "[a] proximate cause of great bodily injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred." (Id . at 335-336.) But Bland noted that the correct definition of proximate cause is broader, not narrower, than jurors might assume because it does not require that the defendant personally fired the bullets which struck the victim, only that the defendants act of personally discharging a gun was a substantial factor contributing to the result, i.e., great bodily injury or death. Therefore, jurors are likely to improperly limit their discussion of causation if the term is not defined for them. (Id. at p. 338.)
Bland explained: "A person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet. For example, in People v. Sanchez [2001] 26 Cal.4th 834, two persons engaged in a gun battle, killing an innocent bystander. Who fired the fatal bullet, and thus who personally inflicted the harm, was unknown, but we held that the jury could find that both gunmen proximately caused the death. [Citation.] The same is true here. If defendant did not fire the bullets that hit the victims, he did not personally inflict, but he may have proximately caused, the harm. . . . [P] . . . [P] . . . Jurors hearing the term proximate cause . . . may misunderstand its meaning or improperly limit their discussion of what constitutes a cause in fact. [Citation.] However, jurors who improperly limit their discussion of what constitutes proximate cause will not find causation where it does not exist. The correct definition of proximate causation is broader, not narrower, than jurors might assume." (Bland, supra, 28 Cal.4th at pp. 337-338.)
Consequently, Bland held the failure to define the term "proximate cause" is more likely to work in defendants favor because the jury is less likely to find its existence (Bland , supra, 28 Cal.4th at p. 338) and error in not defining the term is harmless under any standard when the jury cannot possibly misunderstand it in a way that would result in a finding of proximate causation on an improper basis. (Ibid.)
In this case, the jury found that defendant murdered Pasioles, thereby rejecting the theory of self-defense. The jury then had to decide whether defendant personally and intentionally discharged a firearm in the commission of the murder, and proximately caused Pasioless death. As we have noted, "the enhancement applies so long as defendants personal discharge of a firearm was a proximate, i.e., a substantial factor contributing to the result." (Bland, supra, 28 Cal.4th at p. 338.) The evidence discloses that defendant either (1) personally and intentionally shot and killed Pasioles while the victim struggled to prevent defendant from shooting him, or (2) personally and intentionally shot at Pasioles and chased and assaulted him, causing the situation to escalate to the point where Pasioles struggled with him for the gun and it accidentally went off, killing Pasioles. In either situation, the enhancement applies, and the jury could not possibly have misunderstood the term "proximate cause" in a way that would result in a finding of proximate causation on an improper basis.
Hence, the courts failure to define the term "proximate cause" for the jury was harmless. (Bland, supra, 28 Cal.4th at p. 338.)
B
Defendant asserts the trial court erred in failing to instruct on self-defense as a defense to the section 12022.53 allegation. He contends he was entitled to such an instruction pursuant to section 12022.53, subdivision (l), which states in pertinent part: "The enhancements specified in this section shall not apply to the lawful use or discharge of a firearm . . . by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5."
Defendant acknowledges the jury rejected his claim that the killing was in self-defense, but argues "this does not mean that the jury necessarily rejected self-defense for each discharge of the firearm." He asserts the instruction was necessary because the jury may have found that he fired the first shot in self-defense but that thereafter his right to self-defense dissipated when he chased after the wounded victim and killed him. He also argues the jury could have found that the fatal shot was fired unintentionally, while the two men struggled for the gun; thus, there was evidence that only the first shot was fired intentionally, which is a prerequisite for the application of section 12022.53, and if this shot was fired in self-defense, then pursuant to subdivision (l) of section 12022.53, the enhancement would not apply.
This argument, although novel, is not persuasive. Section 12022.53, subdivision (l), provides that the enhancement shall not apply to the lawful discharge of a gun in lawful self-defense, defense of another, or defense of property as provided in sections 197, 198 and 198.5. Sections 198 and 198.5 are inapplicable to this case. Section 197 states, in pertinent part, that homicide is justifiable when committed in self-defense. Thus, a section 12022.53 enhancement shall not apply when a person discharges a weapon during the commission of a justifiable homicide as provided in section 197.
Section 198 provides: "A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone."
Section 198.5 provides: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. [P] As used in this section, great bodily injury means a significant or substantial physical injury."
Having received a panoply of instructions on self-defense (CALJIC Nos. 5.12, 5.15, 5.17, 5.30, 5.50-5.55), the jury rejected defendants claim that the homicide was justifiable. Because he did not discharge his weapon in the commission of a justifiable homicide, subdivision (l) of section 12022.53 did not preclude application of the enhancement.
For this reason, defendant was not prejudiced by the claimed instructional error. (People v. Watie (2002) 100 Cal.App.4th 866, 885-886 [failure to instruct that self-defense is a defense to a section 12022.53 enhancement is harmless where the jury rejects the claim of self-defense with respect to the underlying crime].)
C
According to defendant, the trial court erred in failing to instruct sua sponte with the unanimity instruction (CALJIC No. 17.01). He says the instruction was required because there were multiple shots fired and it was necessary for the jurors to agree unanimously as to which shot was the basis for the firearm discharge enhancement. In his view, some jurors may have believed the shot that killed Pasioles was fired intentionally, while others may not have believed this but found that the first shot defendant fired was intentional and proximately caused the ensuing fracas and accidental shooting of Pasioles. Our review discloses no error.
"The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a particular crime [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate when conviction on a single count could be based on two or more discrete criminal events, but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
People v. Robbins (1989) 209 Cal. App. 3d 261, 257 Cal. Rptr. 60 indicates the rule regarding unanimity should apply to enhancements as well as the crimes that underlie them.
In other words, a requirement of jury unanimity applies where the multiple acts could have been charged as separate offenses (People v. Jenkins (2000) 22 Cal.4th 900, 1025, 997 P.2d 1044), but a unanimity instruction is not required where the multiple criminal acts are so closely connected as to form a single transaction or one discrete criminal event. (People v. Napoles (2002) 104 Cal.App.4th 108, 115; People v. Sanchez (2001) 94 Cal.App.4th 622, 631.)
The latter situation exists in this case. There was only one murder by one perpetrator and, hence, only one discrete criminal event, not two. Once the jury found that defendant had murdered Pasioles, it had to determine whether defendant intentionally and personally discharged a firearm in the commission of the murder, and proximately caused Pasioless death. The theory by which this occurred was unimportant. Jurors did not have to agree unanimously on the facts supporting each element of the enhancement because the multiple acts supporting the enhancement were so closely connected as to form a single transaction. Whether some jurors believed the fatal shot was fired intentionally, while others believed only the initial shot was fired intentionally, was irrelevant since both shots were part of one discrete criminal event and proximately caused Pasioless death.
Accordingly, the trial court did not err in failing to give a unanimity instruction. (People v. Russo, supra, 25 Cal.4th at pp. 1133-1134; People v. Pride (1992) 3 Cal.4th 195, 250, 833 P.2d 643 [defendant not entitled to a unanimous verdict as to the particular manner in which killing occurred]; People v. Hernandez (1995) 34 Cal.App.4th 73, 79-80 [if there is one discrete criminal event and different theories regarding guilt, the jury need only unanimously agree on defendants guilt, and not on the theory of liability].)
VI
Defendant argues that section 12022.53 is unconstitutional for numerous reasons. His contentions lack merit.
A
First, he contends the enhancement of 25 years to life under section 12022.53, subdivision (d), in addition to the sentence of 15 years to life for second degree murder, impermissibly punishes him twice for murdering Pasioles, in violation of constitutional principles of double jeopardy. He claims that this result is impermissible absent a clear indication of legislative intent to overcome the presumption against duplicative punishment.
A similar contention concerning multiple punishment in violation of section 654 was addressed and rejected in People v. Hutchins (2001) 90 Cal.App.4th 1308 (hereafter Hutchins). Defendant is not punished twice for the same act, but once for each of the components of the act which make it so dangerous and antisocial; i.e., once for killing a person, and once for using a gun in the commission of the murder. (Id. at pp. 1314-1315.) Moreover, the language of section 12022.53, subdivision (d), which provides the enhancement shall be imposed "notwithstanding any other provision of law" discloses the clear legislative intent that defendant claims is lacking.
For the same reasons, we reject defendants contention that imposition of sentence on the murder charge and on the section 12022.53, subdivision (d), enhancement violates constitutional principles of double jeopardy. As explained in Hutchins, the sentence imposed does not punish him twice for the same offense. The double jeopardy clauses of the state and federal Constitutions prohibit successive prosecutions and multiple punishment for the same offense. (United States v. Dixon (1993) 509 U.S. 688, 695-696 [125 L. Ed. 2d 556, 567, 113 S. Ct. 2849]; People v. Scott (2000) 83 Cal.App.4th 784, 792-793.) "Where the two offenses for which the defendant is punished or tried cannot survive the same-elements test, the double jeopardy bar applies. [Citations.]" (United States v. Dixon, supra, at p. 696 .) The "same-elements" test "inquires whether each offense contains an element not contained in the other; if not, they are the same offence and double jeopardy bars additional punishment and successive prosecution." (Ibid. )
Assuming arguendo that section 12022.53 defines an "offense," the two offenses do not run afoul of the same elements test. Murder may be committed without discharging a firearm. There is no merit to defendants double jeopardy argument.
Defendant contends the rationale in Hutchins is not persuasive because it did not consider defendants specific argument, which is based on the following statutory language in subdivision (j) of section 12022.53: "When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment."
According to defendant, this language expressly provides that he cannot be punished for both the use of a firearm within the meaning of the section 12022.53 enhancement and for the second degree murder since the punishment for second degree murder is a "punishment authorized under any other provision of law," which does not "provide[] for a greater penalty or a longer term of imprisonment." Defendants interpretation of the aforementioned statutory language is absurd and ignores established rules of statutory interpretation.
In construing a statute, "our fundamental task . . . is to determine the Legislatures intent so as to effectuate the laws purpose. [Citation.] We begin by examining the statutes words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation. [Citation.] Rather, we look to the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.] [Citation.] That is, we construe the words in question " in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.] [Citation.] We must harmonize the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142.)
Subdivision (j) must be read in conjunction with the other provisions of the statute, including subdivision (d), which states that "any person [such as defendant] who is convicted of a felony specified in subdivision (a), . . . and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
The plain meaning of the directive in subdivision (j)—"the court shall impose punishment pursuant to this section"—is the court must impose "an additional and consecutive term of imprisonment in the state prison for 25 years to life," since that is the punishment imposed by section 12022.53, subdivision (d). (Italics added.) To be "an additional and consecutive term of imprisonment," the enhancement must be imposed in addition to and consecutive to the prison term for the underlying crime. In the present case, this means a term of 25 years to life in addition and consecutive to the punishment of 15 years to life for the murder charge.
Such an interpretation is in keeping with the Legislatures intention to punish more severely persons who use a firearm to commit crimes resulting in death or great bodily injury, by mandating the imposition of "substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm." (Hutchins, supra, 90 Cal.App.4th at pp. 1313, 1314.)
Therefore, contrary to defendants interpretation of the statute, subdivision (j) does not direct that a defendant may not be punished for the crime underlying the enhancement where the punishment for the crime is less than that imposed solely for the enhancement, or that the enhancement may not be imposed where the underlying crime provides for a longer sentence than that imposed for the enhancement.
B
Next, defendant argues that, because the enhancement is mandatory and removes all sentencing discretion from the trial judge, it violates the California Constitutions prohibition against cruel or unusual punishment. (Cal. Const., art. I, § 17.) He asserts section 12022.53, subdivision (d), is unconstitutional because it does not recognize significant gradations of culpability depending on the severity of the current offense, and it does not take into account mitigating factors.
These arguments have been rejected inPeople v. Zepeda (2001) 87 Cal.App.4th 1183 (hereafter Zepeda) and People v. Martinez (1999) 76 Cal.App.4th 489 (hereafter Martinez), both of which emphasized that the choice of fitting and proper penalties is a matter for the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among the different penological approaches. (Zepeda, supra, 87 Cal.App.4th at p. 1213; Martinez, supra, 76 Cal.App.4th at p. 494.) It is not the judiciarys role to second-guess the wisdom of the Legislatures choices, except in the rare situation where the punishment exceeds the bounds of reason in light of the facts of a particular case. (Martinez, supra, 76 Cal.App.4th at p. 494.)
Zepeda held the mandatory nature of section 12022.53 "merely reflects the Legislatures zero-tolerance toward the use and discharge of firearms during the commission of a crime. It does not render the penalties excessive as a matter of law in every case." (87 Cal.App.4th at p. 1214.) Both Zepeda and Martinez held section 12022.53 recognizes gradations of culpability and takes into account mitigating factors. "Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. . . . The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendants intentional discharge of the firearm proximately caused great bodily injury [or death]. . . . Thus, contrary to appellants contention, the statute does recognize different gradations of culpability." (Martinez, supra, 76 Cal.App.4th at p. 495, fn. omitted; Zepeda, supra, 87 Cal.App.4th at pp. 1214-1215.) Furthermore, the trial court retains flexibility and discretion as to fixing the base term for the underlying crime. (Martinez, supra, 76 Cal.App.4th at p. 495.)
Defendant argues that the explanation set forth in Martinez does not apply where, as in this case, a person is convicted of an underlying crime that calls for a mandatory penalty—such as murder—and a firearm was used to kill the person or inflict great bodily injury within the meaning of subdivision (d) of section 12022.53, which requires a mandatory penalty of 25 years to life.
However, as pointed out in Martinez, "this does not render the statute unconstitutionally excessive. Lines must be drawn somewhere, and the Legislature has reasonably drawn the line at great bodily injury [and murder]. The fact that subdivision (d) leaves no additional room for trial court discretion . . . does not render the punishment cruel or unusual." (76 Cal.App.4th at p. 495.)
As noted in Martinez, "the Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime. The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations]" (76 Cal.App.4th at pp. 497-498; accord, People v. Gonzales (2001) 87 Cal.App.4th 1, 18.)
Defendants claim that the mandatory nature of section 12022.53 necessarily exceeds the bounds of reason has been rejected in Zepeda, supra, 87 Cal.App.4th at page 1214 and Martinez, supra, 76 Cal.App.4th at pages 494-495 and 497. We do not find any reason to depart from the holdings in those cases.
C
Lastly, defendant contends his aggregate sentence of 40 years to life for the murder and section 12022.53 enhancement constitutes cruel and unusual punishment under the facts of this case, thereby violating article I, section 17 of the California Constitution and the Eighth Amendment of the federal Constitution. The contention fails.
A punishment may violate the California Constitution, although not "cruel or unusual" in its method, if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted; accord, People v. Dillon (1983) 34 Cal.3d 441, 478, 194 Cal. Rptr. 390, 668 P.2d 697 (hereafter Dillon).)
Defendant focuses on one of the factors considered by courts in applying this rule, i.e., "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch, supra, 8 Cal.3d at p. 425.) "The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendants individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind." (Martinez, supra, 76 Cal.App.4th at p. 494; see also Dillon, supra, 34 Cal.3d at p. 479.)
There are two other "techniques" for assessing whether a punishment is cruel or unusual: comparing the judgment to other punishments imposed by the same jurisdiction for more serious offenses, and comparing the punishment to other punishments imposed by other jurisdictions for the same offense. (In re Lynch, supra, 8 Cal.3d at pp. 426-427.) Defendant does not claim that the punishment imposed on him is disproportionate under these other techniques. His argument is limited to whether his punishment is disproportionate in light of the nature of the offense and the nature of the offender. Thus, we need not address the other factors.
A challenge to a punishment on cruel and unusual grounds is a fact-specific one; therefore, because defendant failed to raise it first in the trial court, he waived his right to raise it on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Nonetheless, in order to forestall a claim of ineffective assistance of counsel, we will address the claim.
Defendant compares himself favorably to the young defendant in Dillon, supra, 34 Cal.3d 441, a case in which the California Supreme Court determined that an indeterminate life sentence for first degree felony murder was excessive under the facts of the case, and reduced the crime to second degree murder. (Id. at p. 489.) The analogy is inapt.
In Dillon, a 17-year-old boy entered a marijuana farm with some of his friends, intending to steal some of the crop. Hearing shots, the boy believed that his friends might have been shot. Then, when he was approached by an armed man who was guarding the marijuana, the boy believed that he was about to be shot, panicked and fatally shot the man. (Dillon , supra, 34 Cal.3d at pp. 451-452, 482-483.) The uncontradicted evidence showed that the boy was unusually immature and childlike and that, because of his immaturity, he neither foresaw the risk he was creating nor was he able to extricate himself without panicking. (Id. at p. 488.) In addition, he had no prior criminal record. (Ibid.) Both the jury and the trial court expressed concern that the sentence was excessive in relation to boys moral culpability. (Id . at p. 487.) Moreover, none of the boys compatriots received a prison term. (Id. at p. 488.)
Here, defendant committed the offense a few days before his nineteenth birthday. There is no evidence that he was unusually immature, and unlike the appellant in Dillon, he did not see an obviously armed man approach him after hearing gunshots, which could lead a person to fear for his or her safety. There is no evidence that defendant panicked; rather, he initiated the assault, stating, "Fuck this shit," after the victim attempted to verbally intimidate him.
Moreover, defendant had convictions for juvenile offenses, including battery and misdemeanor convictions for possession of cocaine base and falsely representing his identity to a peace officer. His performance on probation was poor, he reoffended twice while on his grant of juvenile probation, and he committed the murder just one month after his wardship was terminated. Even if his criminal record were insignificant, this factor is substantially outweighed by the seriousness of his crime and the circumstances of its commission. (People v. Gonzales, supra, 87 Cal.App.4th at p. 17.)
A successful claim under Dillon is an "exquisite rarity" (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196), and the exception rather than the general rule. (People v. Kelly (1986)
183 Cal. App. 3d 1235, 1247, fn. 1.) Merely because of a verbal warning, defendant shot Pasioles, chased him, fatally shot him, and then repeatedly struck him in the head with the gun after he had been rendered defenseless. The sentence of 40 years to life for this brutal slaying does not present the kind of exquisite rarity and gross disproportionality with which Dillon was concerned.
Defendant fares no better under the federal standard because the Eighth Amendment "forbids only extreme sentences that are "grossly disproportionate" to the crime." (Ewing v. California (2003) 538 U.S. __ [155 L. Ed. 2d 108, 119, 127, 123 S. Ct. 1179] (lead opn. of OConnor, J. & dis. opn. of Breyer, J.).) Defendants term of 40 years to life for this brutal slaying is not such a sentence. (Cf. Harmelin v. Michigan (1991) 501 U.S. 957, 996 [115 L. Ed. 2d 836, 865, 111 S. Ct. 2680] [life without possibility of parole for a possession of a large quantity of drugs was not cruel or unusual]; Rummel v. Estelle (1980) 445 U.S. 263, 266 [63 L. Ed. 2d 382, 386, 100 S. Ct. 1133] [upheld a life sentence under a Texas recidivist statute for a person convicted of obtaining $ 120.75 by false pretenses after incurring prior convictions for fraudulent use of a credit card and passing a forged check]; Eckert v. Tansy (9th Cir. 1991) 936 F.2d 444, 448, 450 [the imposition of two life sentences, one for first degree kidnapping and one for using a weapon in the commission of the offense, does not violate the Eighth Amendment].)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, J., and ROBIE, J.