PEOPLE v. WILKINS

Appellant's Petition for Review

Cal.February 18, 2011

Supreme Court No. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA‘!2 1 & 20" THE PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal ) No. G040716 ae Plaintiff and Respondent, ) Superior Court ) No. 06NF2339 ) ) COLE ALLEN WILKINS, ) ) Defendant and Appellant. ) ) Appeal from the Superior Court of Orange County, The Honorable Richard F. Toohey, Judge APPELLANT’S PETITION FOR REVIEW OF THE PUBLISHED DECISION OF THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE, AFFIRMING THE JUDGMENT OF THE ORANGE COUNTY SUPERIOR COURT SHARON M. JONES Attorney at Law State Bar No. 138137 P. O. Box 1663 Ventura, CA 93002 s (805) 653-0195 Attorney for Appellant COLE ALLEN WILKINS By Appointment under the Appellate Defenders, Inc. Independent Case System TABLE OF AUTHORITIES FEDERAL CASES Barnes v. United States (1973) 412 U.S. 837 coecccceccceccsesscsessessesesceseseeeeeseeseseees 20 Chapman"Chapman v. California (1956) 386 U.S. 18 oo.ccccccceseceteeeeneetseeeees 15 Harmelin v. Michigan (1991) SOL U.S. 957 oooceieccceceescescseeeeneescscesesseeseseesseeeens 24 Jackson v. Virginia (1979) 443 U.S. 307 .o.cccccceccccsecsescesseseeeereeecseesesesseenscesesaees 8 Shepard v. United States (1933) 290 U.S. 960 oooeeescessesceeesseseeeeeetetseeeenesseesesenens 23 | Solem v. Helm (1983) 463 U.S.277 woeeccsesesccssssesessssesscescseseeeseseseesseseseacsassesenes 24 Ulster County Court v. Allen (1979) 442 U.S. 140 ooo.csscseecseceeeeseees 19 United States v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294 seceeeeeeeeeessseeenseees 19 United States v. Warren (9th Cir. 1994) 25 F.3d 890 oo... eecceseceseessssesseseeeeseeees 19 Wardius v. Oregon (1973) 412 U.S. 470 cecccssesssscssesssscsssuvsesescessessessessnsseesce 20 Washington v. Texas (1967) 388 U.S. 14 ww.Leeesessaceeseceeceoseesseeeseseneesersaees 20 In re Winship (1970) 397 U.S. 358 ooeeececcscsessessssecescseseeseessseesseseseeseeesenscsesceseesses 6 STATE CASES In re Lynch (1972) 8 Cal.3d 410 oeeeesiseaenseeseaessessnesnssessnneeesaseeneeeieeses 25 Michail v. Fluor Mining and Metals, Inc. (1986) 180 Cal.App.3d 284 teseeeeeees 22 People v. Beagle (1972) 6 Cal.3d 441 oe.esessesssuceueenaveneeaeeeeeesesseessssuceeee 22 People v. Boss (1930) 210 Cal. 245 ..o.ceeecccssssssesessessscseesessssessseescsstesecessesesscsesss 14 People v. Briggs (1967) 255 Cal-App.2d 497 o..ccceecscsceesssssesssesssesessersseesesesseeeees 8 People v. Bryson (1967) 257 Cal.App.2d 201 .......eessessssesssseeeessesstensseceeebereeeenees 9 People v. Burns (1984) 157 Cal.App.3d 185 .....ccsesssesssssssssscseeesssssesseseeeseeseseees 9 People v. Cartwright (1995) 39 Cal.App.4th 1123 ...ccesssessssssssssssssssssessessessesesees 24 People v. Castro (1985) 38 Cal.3d 301 oo... ccecceeesceeneeeeeeeeseseeeneeeeeeeneeeeeenees 22 People v. Cavitt (2004) 33 Cal.4th 187 oo...ccceeseeseseeeteeeeeereneees 7,10, 11,12 People v. Collins (1968) 68 Cal.2d 319 oe essaceeeceeeeaseeecececeeseeeeeeeseecenas 23 People v. Cooper (1991) 53 Cal.3d 1158 oo... ce ccecceesesecneeneeseceeneeeneeeeaeeeereeaes 13 People v. Dillon (1983) 34 Cal.3d 441 occcee ceceeeneeseeeeeeeseeeeeeneseeeeteaeey 24, 25 People v. Flood (1998) 18 Cal4th 470 oo... ccccccececeseeneesseeeseeseeeeeeeeeesnneeseeaes 15 People v. Foster (1953) 115 Cal.App.2d 866 .........cccccseesessesseseeeseseeceeeeereneeeasens 9 People v. Fuller (1978) 86 Cal-App.3d 618 ........ seseeeeteeeeeneeeeentened“aceeeseeseeecerseeseenee 5 People v. Green (1980) 27 Cab.3d Looeccecceeeenscnseeeeeceenseeseneeeneeenaeeneeaeenee 17 People v. Hansen (1994) 9 Cal.4th 300 ccescssssscsssssscsesessessssssssesssssssseeeseseeense 5 People v. Johnson (1980) 26 Cal.3d 557 o.iccccccccccsssssesesssenseseneeeeeseeteneesertereeresees 8 People v. Johnson (1991) 233 Cal.App.3d 425 oui. ceeecesccessssscsseseesssesseesneenses 22 People v. Kendrick (1961) 56 Cal.2d 71 oo.....ccecesccesseseeseeseeseeeeneeeseeeseeseeneeeeees 14 People v. King (1993) 16 Cal.App.4th 567 aacseanceesesseseneeseceeccececerecsnecsesseoeess 26 People v. Lee (1994) 28 CalApp.4th 1724 ooo... ccc eccesesesseeeneeeneeeeeesseseneeseeees 21 People v. McFarland (1962) 58 Cal.2d 748 coccsesccsscssssssssssssesssssceesseeseseeseseeseeeeenees 9 People v. Montiel (1985) 39 Cal.3d 910 ..ccccccsssssssescesssssecsesssececessseessneceeaceseenseeee 22 People v. Montoya (1994) 7 Cal4th 1027. .o.eeeeeescescscecesececceetseteecsscsserssaseeeseeeeeas 13 “People v. Padilla (1995) 11 Cal.4th 891 scsscsosssssssesssenconstants 2 People v. Perez (2005) 35 Cal-4th 1219 .....seesseicsseeseseesssseseessneesaesnneesnsenses 16, 17 People v. Pulido (1997) 15 Cal4th 713 ........sesscsessseeesceeeseeeeeeeescceenustnsunsste 5 | People v. Rascon (1954) 128 Cal.App.2d 118 sssccucsuscscssnsntensestessiessnsnesne 8 People v. Robbins (1988) 27 Cal.3d 303 cveccessesresneeee ssesesiannsssesssseseeesusensens 22 People v. Rodriguez (1999) 20 Cal.4th 1...seseenssnsnnnneceeceeceeneeneecececncceeeetees 8 People v. Rogers (1943) 22 Cal.2d 787 oo... eeececeeccceeceseeseeeneeeseeseeeeeeennneeteereres 15 People v. Salas (1972) 7 Cal.3d 812 ....ciceeccccc ce cecceeeeeseeeneeeneseseeeeeaeeneeeeeeeeees 14 People v. Tamborrino (1989) 215Cal.App.3d STS ceccsesseccesescetenceteeeeeteneceesnneeees 23 People v. Washington (1965) 62 Cal.2d 777 ..occcecececcseeeseeneeceeeeeeensensesteteneesenes 5 People v. Watson (1956) 46 Cal.2d 818 ) oo..cecccceeeceecesenenecneseesnenseneesesserseees 15 State v. Montgomery (2000) 254 Conn. 694 occccceeeseesenecensenneneeneeteeeneeees 7 STATE STATUTES Evidence Code section 352 ....i.cccccccccessssceececececcceccccnaensescecssseeseecseeeoneceoeseoaseus 21, 22 Penal Code section 189 ......cccccccccccccsscccsscececcssssessseseenessecenecececeacseeneneeaseneaee 2,5, 25 Penal Code section 459 .......ecceseesessesseeseeeeneeeeseeeeseeneenasecessssnseaseeseeeneecaeereeesgs.. 8 TABLE OF CONTENTS PETITION FOR REVIEW INTRODUCTION NECESSITY FOR REVIEW ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE AND FACTS ARGUMENT: I. THE PROSECUTION AGAINST APPELLANT UPON A THEORY OF FIRST DEGREE FELONY MURDER UNDERTHE FACT OF THIS CASE WAS IMPROPER AND CONSTITUTED A DEPRIVATION OF APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW THUS REQUIRING REVERSAL OF THE JUDGMENT Il. THE EVIDENCE IN THERECORD IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILT FOR FIRST DEGREE FELONY MURDER - I. ERRORS RELATING TO JURY INSTRUCTIONS ON FELONY MURDER DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESSOF LAW AND REQUIRE REVERSAL OF THE JUDGMENT IV. THE EVIDENCE DID NOT SUPPORT JURY INSTRUCTIONS ON AIDING AND ABETTING AND THE COURT PREJUDICIALLY ERRED BY GIVING SUCH INSTRUCTIONS _ V. THE TRIAL COURT PREJUDICIALLY ERRED AND DENIED APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT 10 16 THEY COULD FIND APPELLANT GUILTY OF BURGLARYON THE BASIS OF EVIDENCE THAT DID NOT RATIONALLY SUPPORT AN INFERENCE THAT HE WAS GUILTY OF THAT CRIME VI. TRIAL COURT ERRED BY ALLOWING APPELLANT TO BE IMPEACHED WITH PRIOR JUVENILE ADJUDICATIONS VII. PUNISHING APPELLANT FOR FIRST DEGREE MURDER UNDER THE CIRCUMSTANCESOF THIS CASE CONSTITUTES A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS UPON CRUEL AND UNUSUAL PUNISHMENT CONCLUSION WORD COUNT CERTIFICATE APPENDIX: OPINION OFTHE COURT OF APPEAL DECLARATION OF SERVICE BY MAIL 18 21 24 27 27 Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal ) No. G040716 Plaintiff and Respondent, ) Superior Court ) No. 06NF2339 ) ) COLE ALLEN WILKINS, ). ) )Defendant and Appellant. ) Appeal from the Superior Court of Orange County, The Honorable Richard F. Toohey, Judge APPELLANT’S PETITION FOR REVIEW OF THE PUBLISHED DECISION OF THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE, AFFIRMING THE JUDGMENT OF THE ORANGE COUNTY SUPERIOR COURT Petitioner, COLE ALLEN WILKINS,respectfully petitions this Court for review following the published decision of the Court ofAppeal, _ Fourth Appellate District, Division Three,filed cn January 7, 2011, affirming the judgment of the Superior Court of Orange County. A copy of the opinion ofthe Court of Appeal (“Opin.”) is attached hereto as an Appendix. INTRODUCTION | The prosecution in appellant’s case involved an unprecedented expansion of the felony murderrule to encompass a death resulting from conduct which does not approach that which was anticipated by the inclusion of burglary among the felonies included within the statutory definition of the 1 rule. (See Pen. Code, sec. 189.) Here, appellant was charged with the murder of David Piquette, who died whenthe car he drove collided with a big rig truck after Piquette swerved to avoid a collision with a boxed stove which had, momentsearlier, fallen from the back of a truck driven by appellant. The stove had been taken, without permission, from a house under construction in Menifee, along with several other large appliances which had been loaded into the bed of appellant’s truck without being secured with tie-down straps which were available inside the cab of the truck. Appellant also failed to close the tailgate of his truck in order to accommodate the load. Although appellant was not charged with the burglary of the house in Menifee, he was convicted offirst degree felony murder on the basis of his presence near the building site around the time that the appliances were delivered and on the evening that the appliances were taken. . In his appeal, appellant argued, amongotherissues, that the application of the felony murderrule, under the circumstancesofthis case, constituted a deprivation ofhis right to due process of law. The Court ofAppeal rejected all of appellant’s arguments and affirmed the judgment ofthe Superior Court. NECESSITYFOR REVIEW Review is necessary in this case to address important issues of law which are likely to recur in other cases, and to preserve for further review issues of federal constitutional dimension. ISSUES PRESENTED FOR REVIEW 1. WAS THE PROSECUTION AGAINST APPELLANT UPON A THEORY OF FIRST DEGREE FELONY MURDER UNDERTHE FACTSOF THIS CASE IMPROPER AND DID IT CONSTITUTE A DEPRIVATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW? 2. IS THE EVIDENCE IN THE RECORD SUFFICIENT TO SUPPORT THE VERDICT OF GUILT FOR FIRST DEGREE FELONY MURDER? 3. DID ERRORS RELATING TO JURY INSTRUCTIONS ON FELONY MURDER DEPRIVE APPELLANTOF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUF. PROCESS OF LAW? 4. DID THE EVIDENCE SUPPORT JURY INSTRUCTIONS ON AIDING AND ABETTING? 5. DID THE TRIAL COURT PREJUDICIALLY ERRED AND DENY APPELLANT DUE PROCESS OF LAW WHENIT INSTRUCTED THE JURY THAT THEY COULD FIND APPELLANT GUILTY OF BURGLARY ON THE BASIS OF EVIDENCE THAT DID NOT RATIONALLY SUPPORT AN INFERENCE THAT HE WAS GUILTY OF THAT CRIME? 6. DID THE TRIAL COURT ERR BY ALLOWING APPELLANT TO BE IMPEACHED WITH PRIOR JUVENILE ADJUDICATIONS? 7. DID PUNISHING APPELLANT FOR FIRST DEGREE MURDER UNDER THE CIRCUMSTANCESOF THIS CASE CONSTITUTE A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS UPON CRUEL AND UNUSUAL PUNISHMENT? STATEMENT OF THE CASE AND FACTS Appellant adopts the procedural facts and the summary of facts contained in the Opinion on pages 3 through 11. The Court ofAppeal affirmed the judgment. (Opin., pp. 1, 27.) ARGUMENT I THE PROSECUTION AGAINST APPELLANT UPON A THEORYOF FIRST DEGREE FELONY MURDER UNDER THE FACT OF THIS CASE WAS IMPROPER AND CONSTITUTED A DEPRIVATION OF APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW THUS REQUIRING REVERSAL OF THE JUDGMENT. Appellant was prosecutedfor first degree felony murder based on a theory that Piquette’s death occurred during a continuoustransaction arising from the burglary of the Kane property. Appellant was neither charged nor convicted of the burglary of the Kane property. Prior to trial, appellant's defense counsel movedfor dismissal of the first degree murder charge on the groundsthat the burglary of the Kane.property was not causally related to Piquette’s death and thatthe act causing the death was notpart of a continuous transaction arising out of the burglary as the accident occurred several hours after the burglary and over 60 miles away from the location of the burglary while appellant was neither fleeing nor being pursued. (1RT 3- 9.) Thetrial court denied the defense motion and permitted the prosecution to proceed upon theory offirst degree felony murder. (1RT 13.) Appellant was convicted offirst degree murder in accord with the prosecution’s theory of felony murder. (2CT 402; 406-407.) The Court ofAppeal rejected appellant’s argumentthat prosecuting him for first degree felony murder constituted an abridgment of appellant’s right to due process of law andheld, instead, that becausethe evidence was sufficient to support the jury’s verdict on a theory offirst degree felony murder, there was no due process violation. (Opin. p. 27.) Appellant submits that not only does the evidence fail tc support his conviction forfirst degree felony murder, as discussed, infra, in ArgumentIJ, prosecuting him upon a theory of first degree felony murder deprived him of due process of law in that the rationale for the statutory felony murder rule does not support a prosecution and conviction for that offense underthe facts of appellant’s case and application of the statutory felony murder rule renderedhistrial fundamentally unfair. Long ago this Court rejected the contention that the purpose ofthe felony murderrule is to deter the commission of felonies enumerated in section 189. (People v. Washington (1965) 62 Cal.2d 777, 781.) Rather, the ostensible purposeofthe rule is “to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they - commit.” (Ibid; accord, People v. Hansen (1994) 9 Cal.4th 300, 310; People v. Pulido (1997) 15 Cal.4th 713, 725.) All of theenumerated felonies in Penal Codesection 189 — arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, forcible sex acts, sex acts committed against children, or any murder perpetrated by means of discharging a firearm from a motor vehicle — involve dangerto the lives ofvulnerable victims whoeither would be direct victims of the designated crime, physically present at the scene of the crime, who | might attempt to interfere with or apprehenda perpetrator of such crimes, or perhaps those who mightinadvertently place themselvesin the path of a felon in reckless flight. (People v. Fuller, supra, 86 Cal.App.3d,at p. 627.) The Court ofAppealhas held that the statutory felony murder rule was properly applied in appellant’s case, not because the accidental death occurred in the course of driving from the scene burglary, but because “the act that caused hte homicide —thefailure to tie downthe load ofstolen loot — occurred at the scene of the burglar, not 60 miles later whenpart of the unsecured loadfell off the back of appellant’s truck as he drove to where he could unload andhide the loot.” (Opin. p. 27.) It is inconceivable that the felony murder rule was ever intended to apply to conduct which has no relation to the dangers ordinarily associated with the offense of burglary, such as confrontations with building occupants or those who might pursue and attempt to apprehenda fleeing burglar. Obviously, the drafters of the felony murderrule in 1892 could not have imagined the scenario in appellant’s case nor anticipated that the rule would have any deterrent effect upon the mannerin which stolen property was secured in a vehicle and asported from the scene of a burglary. | Use of the felony murderrule to prosecute appellant for first degree murder underthe fact of this case was so far removed from the underlying rationale for the felony murderrulethat it was entirely unjustified, improper, andin violation of both substantive and procedural due process inasmuch as no person could possibly discern from the statute that a failure to carefully load itemsinto a truck would constitute the offense offirst degree felony murder. The Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 (“Winship”.) The substantive statutory definition of the crimeoffirst degree felony murderin this state does not include malice as an element. Winshiprequires proofbeyond a reasonable doubt of every element of murder, but the language of the Winship decision has broader implications. © According to Winship, due process requires proof beyond a reasonable doubt of “every fact necessary to constitute the crime.” (Winship, supra, 397 U.S. at p. 364.) This means, at the very least, that the felony murder rule include “a requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact.” (Cavitt, supra, 33 Cal.4th, at p. 199, citing State v. Montgomery (2000) 254 Conn. 694 [759 A.2d 995, 1020].) In appellant’s case, this relationship does not exist and not only could appellant not have knownthathis failure to tie down the load would constitute an act sufficient to find him guilty of first degree murder, the absence of a culpable relationship between the commission ofthe burglary and the death ofthe victim violated appellant’s right to due process of law and the judgment must be reversed. i THE EVIDENCEIN THE RECORDIS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILT FOR FIRST DEGREE FELONY MURDER. Appellant was convicted offirst degree felony murder based upon a death which occurred during the commission of a burglary. The conviction required proof beyond a reasonable doubt that appellant burglarized the Kane | house, that there was a logical nexus between the death and the burglary, and that the death and the burglary were part of one continuoustransaction. Contrary to the finding of the Court ofAppeal, appellant submits that the - evidence inthe recordis insufficient to support the conviction for first degree murder. | Whenreviewing a claim of insufficiency of the evidence, “the reviewing court’s task is to reviewthe whole record in the light most favorable tothe judgmentto determine whetherit discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonabletrier offact could find the defendant guilty beyond a 7 reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is very similar. (See Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) A conviction whichis not supported by sufficient evidence constitutes not just an error of state law, but also a denial of due process of law and a violation of the accused’s rights under the United States Constitution. (Jackson v. Virginia, supra, 443 U.S., at p. 309.) The elements of the offense of burglary are entry into a dwelling or other structure with the intent to commit a felony therein. (Pen. Code, sec. 459.) In appellant’s case proof of these elements was severely lacking. Apart from the fact that appellant was in possession of the property stolen from the burglarized dwelling sometimeafter the burglary, the only other evidence to support the element of entry with the intent to steal were the facts that appellant worked at a different building site in the same neighborhood aroundthe time of the burglary and that appellant made cell phonecalls, at 12:45 and 1:12 AM. from a location some 35 to 40 miles - from the location ofthe Kane property, and that he again made a cell phone call at 4:30 A.M. from another location, also 30 to 50 miles from the location of the Kane property. (See People’s Ex. 26 and Defense Ex.A.) Duringthe call madeat 1:12 A.M., appellant toldMs. Trivich that he had gotten somelarge appliances. (3RT 337-338.) Appellant submits that this additional bit of evidence is not substantial enough to support a finding that appellant committed the burglary at the Kane home. ee ¢ . Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. (People v. Briggs (1967) 255 Cal.App.2d 497, 500; People v.Rascon (1954) 128 Cal.App.2d 118, 122.) . Mere presenceat or near the scene of a crimeis not alone sufficientto justify conviction, nor does possession of recently stolen property, without more, warrant a finding of burglary. (People v. McFarland (1962) 58 Cal.2d 748, [superceded on anotherpoint in People v. Burns (1984) 157 Cal. App. 3d 185]; People v. Foster (1953) 115 Cal.App.2d 866, 868; see also People v. Bryson (1967) 257 Cal. App. 2d 201, 210.) The jury’s finding that appellant committed the Kane burglazy is not supported by substantial evidence. Likewise, there is insufficient evidence proving that the burglary and the death were partof one continuoustransaction. The accident on the 91 freeway occurred over four hours after appellant obtained the stolen property. This fact is supported by the testimony of Ms. Trivich and by appellant’s cell phone records which indicate that he called Ms. Trivich around 1:00 A.M., on July 7", and he told her duringthat call that he had obtained somelarge kitchen appliances. At the time that appellant made this call, he was traveling from westto east, toward Palm Springs, wherethe appliances were ultimately to beinstalled. (3RT 337-338; Ex. 26.) The ‘accident occurred shortly after 5:00 A.M. that morning, while appellant was traveling in the opposite direction, away from Palm Springs, where he had apparently been unable to unload the appliances from his truck. (2RT163- 164.) Thus, there is no evidence in the record that the accident which occurred at 5:00 A.M. was close in time to the commission ofthe burglary. Additionally, the evidence does not support a rational conclusion that there was a continuous, unbroken series of events which led from the- burglary to the accident. There is no evidence, whatsoever, that appellant was in flight from the scene ofthe burglary at the time ofthe accident. Indeed, it - appears from the record that appellant had not only reached a place of temporary safety, but that he had lingered there for sometime before getting back on the 91 freeway and returning to Long Beach. Noris there any evidence, whatsoever, in the record that anyone wasin pursuit of appellant from the time that the Kane home was burglarized until the time ofthe accident. Indeed, the burglary at the Kane residence wasnot discovered until hours after the accident occurred. (2RT 122.) Thus, thereis no evidence to support a conclusion that the death occurred during efforts to escape from the sceneofthe burglary or that the accident resulted from an attempt to conceal the property which was openly on display in the bed of the pickuptruck. Becausethe evidencein the record is insufficient to support a finding that appellant burglarized the Kaneresidence,or that the burglary and the ~ death werepart of one continuoustransaction, the judgement finding appellant guilty of first degree felony murder must be reversed. i ERRORS RELATING TO JURY INSTRUCTIONS ON FELONY MURDER DEPRIVED APPELLANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND REQUIRE REVERSAL OF THE JUDGMENT. Defense counsel requested that the jury be instructed with language from CALCRIM No.3261' regarding the duration of burglary for purposes ofthe felony murder rule. Defense counsel further objected to the “continuous transaction” instruction, CALCRIM No. 549, because the case upon whichthat instruction was based, People v. Cavitt (2004) 33 Cal.4th 187, was distinguishable from appellant’s case for a numberofreasons. 'The pertinent language from CALCRIM No.3261 is: “The crime of burglary continues until the perpetrator has.actually reached a temporary place of safety. The perpetratorhas reached a temporary place ofsafety if he has successfully escaped from the scene andis no longer being chasedand has unchallenged possession of the property.” 10 Finally, defense counsel argued that CALCRIM No.549 is misleading and vaguein that the instruction does not require the prosecution to prove any of the listed factors, or any factors at all, in order for the jury to find that the burglary and the death is part of a continuous transaction. (SRT 727-733.) Thetrial court refused to give any further instruction defining the duration of the burglary, citing the use note for CALCRIM No.3261 which advises that the instruction should not be giving in a felony murdercase. (2CT 400; SRT 734.) The Court of Appeal, like the trial court, relied upon this Court’s decision in People v. Cavitt (2004) 33 Cal.4th 187, in which the Court approved of an instruction invented and given by thetrial court in that case to guide the jury in applying the felony murderrule to a non-killer in a multi-defendant case under a very unique fact situation. Appellant submits that People v. Cavitt, supra, dealt with the problem of the “complicity” of co-felons under the felony murder rule. Thus, the focus of the Cavitt decision was whether the homicidai acts of one felon can be attributed to anotherby virtue oftheir joint criminal venture. (See, generally, Id., at pp. 197-201.) In this regard, the Cavitt court jettisoned the “in furtherance of the underlying felony” language, used by previous courts, in favor of requiring a “logical nexus” between the homicidalacts of a co- felon and the jointly-committed felony. In the context of a multi-defendant case, this makes sense because, as this Court noted in Cavitt, “Liability for felony murder[in a multi-defendant case] does not depend on an examination of ‘the individual state ofmind of each person causing an unlawful killing...” (d., at p. 205.) . , Likewise, the Cavitt court distinguished the concept of a “continuous transaction” and the “escape rule” in the context of a multi-defendant fact 11 situation. The discussion of this distinction arose because one of the defendants in Cavitt argued that the jury was improperly instructed that the underlying felony was not complete until all perpetrators relinquished control over the victim, are in unchallenged possession cf the stolen property, and have effected an escape and reached a place of temporary safety. It was in this context that the California Supreme Court first recognized “tworelated but distinct doctrines: the continuous-transaction doctrine and the escape rule,” and observed that, | “The ‘escape rule’ defines the duration of the underlying felony, in the context of certain ancillary consequencesofthe felony (People v. Cooper (1991) 53 Cal.3d 1158, 1167), by deeming the felony to continue until the felon has reached a place oftemporary safety. The continuous-transaction doctrine, on the other hand, defines the duration offelony- murderliability, which may extend beyond the termination of the felony itself, provided that the felony andthe act resulting in death constitute one continuoustransaction.” (Cavitt, supra, 33 Cal.4th, at p. 208; emphasis in original.) The above language from Cavitt does not dictate, however, that a jury should never be instructed, upon request, that the offense of burglary is | complete when the perpetrator has réached a place of temporary safety. The California Supreme Court previously determined, in a case cited in the above passage from Cavitt, that felony murder is one ofthe “ancillary consequences”ofthe felony: “..we observe, in accordance with our analysis in People v. © Cooper, supra, 53 Cal.3d 1158, that the duration oftheoffense of burglary, as defined for the purpose of assigning aider and abettorliability, need not and should not be identical to the definition pertinent to felony-murderliability or to other ‘ancillary consequences’ of burglary. (Id. at pp. 1166-1169; see People v. Brady, supra, 190 Cal.App.3d 124, 134; cf. People v. Ramirez (1979) 93 Cal.App.3d 714, 726; People v. Fuller (1978) 86 Cal.App.3d 618, 622-628 [burglars' liability for 12 felony murder continues through escape until perpetrator reaches place of temporary safety].)” (People v. Montoya (1994) 7 Cal. 4th 1027, 1045.) The distinction noted by the court in Cavitt applies in the context of a multi-defendant case whereit is likely that one or more co-felons might successfully escape and reach a place of temporary safety, thus concluding their liability as aiders and abettors of the underlying burglary. This doesnot, however, endtheir liability for felony murder should a co-felon, left behind, engage in conduct which causes a death. This is an extension of the rationale which makesaiders and abettors liable for the natural and probable consequencesofthe underlying felony. The Cavitt court’s concern for and focus upon aider and abettor liability in the felony murder context accounts for the court’s limitation on the escape rule, but that concern does not apply to the facts of appellant’s case. The escape rule actually arose in the context of the felony murder rule. As the California Supreme Court noted in People v. Cooper, supra: “The escape rule originated in the context of the felony-murder doctrine in the landmark case of People v. Boss (1930) 210 Cal. 245. (See also, People v. Salas (1972) 7 Cal.3d 812, 823-824; People v. Ketchel (1963) 59 Cal.2d 503, 524; People v. Kendrick (1961) 56 Cal.2d 71, 90.) We have also applied the escape rule to several other ancillary | . - consequencesofrobbery. (See, e.g., People v. Laursen, supra, 8 Cal.3d 192 [kidnapping committed during escape from robbery is kidnapping "to commit robbery" within section 209]; People v.Carroll (1970) 1 Cal.3d 581 [injury inflicted on robbery victim after property had been asported but before robber escapedtoaplace of temporary safety occurred "in the course of commission of the robbery" for purposes of bodily injury enhancement].)” (People v. Cooper, supra, 53 Cal.3d, at pp. 1166-1167; emphasis added.) Appellant submits that the real question is not whether the escape rule 13 applies in the felony murder context, but whether the instructions given in appellant’s case adequately instructed the jury on the essential elements of felony murder underthe facts of appellant’s case. Appellant submits that the felony murderinstructions given in his case were vague, confusing, and misleading to the jury. First, although the jury wasinstructed that it may considerthe various factors listed in CALCRIM No.549,the instruction concludes by informing the jury that the People are not required to prove any of the listed factors. Second, as defense counsel requested, it is necessary that the jury be instructed that there are parameters upon the duration of burglary in order to assist the jury in determining whetheror not the burglary and the fatal accident were, indeed, part of a continuoustransaction. (See, e.g., People v. Boss, supra, 210 Cal., at p. 251; see also, People v. Salas, supra, 7 Cal.3d, at pp. 823-824; People v. Ketchel, supra, 59 Cal.2d,at p. 524; People v. Kendrick (1961) 56 Cal.2d 71, 90 [14 Cal.Rptr. 13, 363 P.2d “13}) “(T]he United States Supreme Court has held that jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each elementofthe charged offense violate the defendant's due process rights under the federal Constitution. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; Carella v. California (1989) 491 U.S. 263, 265, (per.curiam); People v. Kobrin (1995) 11 Cal. 4th 416, 422-423 & fn. 4.) Such erroneous instructions also implicate Sixth Amendmentprinciples preserving the | exclusive domain ofthe trier of fact. (Carella v. California [1989] 491 USS.at p. 265; People v. Kobrin supra, 11 Cal. 4th at p. 423.) .... The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding thatthe prosecution failed to prove a particular element of the crime beyond a reasonable doubt. (United Statesv. 14 Gaudin (1995) 515 U.S. 506, 510-51 1, 522-523; People v. Kobrin, supra, 11 Cal. 4th at pp. 423-424.)” (People v. Flood (1998) 18 Cal.4th 470, 491- 492.) Moreover, when “the jury is misdirected or mislead on anissuevital to the defense and the evidence does not point unerringly to the guilt of the person accused,” then such misdirection constitutes prejudicial error. (People v. Rogers (1943) 22 Cal.2d 787, 807.) Becausethetrial court’s instructions had the effect of depriving appellant of a trial on all the material issues, appellant’s Sixth and Fourteenth Amendmentrightsto jury trial and to due process of law were violated and the “Chapman*“ standard of review applies. Thus, reversal is required if it cannot be shown that the error was harmless beyond a reasonable doubt. Even if the error is subject to the “Watson” standard, however, the judgment must be reversed because “After an examination of the entire cause, including the evidence[citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcomehadthe error not occurred.” (People v. Watson (1956) 46 Cal.2d 818, 836).” (People v. Breverman (1998)19 Cal.4th 142, 178.) For this reason, this Court should grant review of the decision of the Court of Appeal. *Chapman v. California (1956) 386 U.S. 18, 24. 15 IV THE EVIDENCE DID NOT SUPPORT JURY INSTRUCTIONS ON AIDING AND ABETTING AND THE COURT PREJUDICIALLY ERRED BY GIVING SUCH INSTRUCTIONS. Appeliant’s trial counsel objected to jury instructions on aiding and abetting on the grounds that there was no evidencein the record to support an aiding and abetting theory and, additionally, to instruct on such a theory would invite the jury to speculate and “fill in” facts which were not proven by the evidence. Thetrial court disagreed and gave jury instructions on aiding and abetting: (SRT 710-712; 714.) Appellant submits that these instructions were not supported by any evidence that appellant was an aider and abettor of the offense of burglary nor that he was aided and abetted in committing any such offense and,therefore, were instructions upon a prosecution theory which was not supported by any evidence. The given instructions invited the jury to speculate and to conclude that appellant was guilty of the underlying burglary offense without sufficient evidence to support such a conclusion. Well established case law supports the argument that absent proofthat someother individual committed the offense of burglary, the prosecutor in appellant’s case was prohibited from proceeding upon a theory of aiding and abetting. (People v. Perez (2005) 35 Cal. 4th 1219, 1225) here, the prosecutor madenosecret of the fact that he was requesting aiding and abetting instructions in order to suggestto the jury a hypothetical factual scenario by which the prosecution could counterthe defense theory that appellant did not burglarize the Kane property. (SRT 710.) Thetrial court _and the Court ofAppeal concludedthat there was evidenceof aiding and | | abetting based on defense counsel’s “attempts to elicit” in cross-examination of the police officers, the fact that it required more than oneofficer to lift 16 the large items of property stored in the garage in Palm Springs. (SRT 711; Opin. pp. 14-15.) Defense counsel’s attemptsto elicit the fact that a refrigerator is a heavy and bulky item wasentirely insufficient to justify instruction on a theory of aiding and abetting. There was no evidence presented to the jury to support the inference that appellant either aided some other person in committing the burglary or that appellant was aided by another person. If the prosecutor’s argument wascorrect, any person found in possession of property stolen from a burglarized dwelling could be prosecuted on a theory of aiding and abetting, notwithstanding the complete absenceof evidence that the defendant wasassisted by another person. Here, the only “facts” giving rise to jury instructions on a theory of aiding and abetting were those which the prosecutor hoped the jury would supply from their imaginations. (6RT 980-981.) “The giving of such legally correct but inapposite instruction amounts to the presentation of a factually inadequate theory.” (People v. Perez, supra, 35 Cal. 4", at p. 1234.) | In appellant’s case, whether or not he actually burglarized the Kane — " property was an essential element of the offenseof first degree felony murder. The jury was presented with two theories by which they could conclude that appellant was guilty of the burglary of the Kane property: either he burglarized the property himself, or he aided and abetted someoneelse in the commission of the burglary. The latter of these two theories was improperly before the jury. “[W]hen the prosecution presents its case to the ‘jury on alternate theories, some of whichare legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69.) Based upon the trial court’s giving jury instructions on a factually unsupportedtheory, 17 coupled with the prosecutor’s final argument urging the jury to adopt this unsupported theory of guilt, this Court cannot determine from this record upon which theory the verdict rests. For this reason, the judgmentfinding appellant guilty of first degree felony murder should have been reversed and review should be granted. Vv THE TRIAL COURT PREJUDICIALLY ERRED AND DENIED APPELLANT DUE PROCESS OF LAW WHEN IT INSTRUCTED THE JURY THAT THEY COULD FIND APPELLANT GUILTY OF BURGLARY ON THEBASIS OF EVIDENCE THAT DID NOT RATIONALLY SUPPORT AN INFERENCE THAT HE WAS GUILTY OF THAT CRIME. Thetrial court instructed the jury with CA.LCRIM No. 376 as follows: “If you conclude that the defendant knew he possessed property and youconcludethat the property had in fact been recently stolen, you may not find the defendant committed the crime of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may concludethat the evidenceis sufficient to prove he committed burglary. “The supporting evidence need only be slight and need not be enoughbyitself to proveguilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. : “Rememberthat you may not find that the defendant committed any crime unless you are convinced that each fact essential to the conclusion that the defendant committed that . crime has been proved beyond a reasonable doubt.” (1CT 357; 6RT 1015-1016.) | 18 CALCRIM No.376 permitted an inference of guilt without a rational basis, and thus,this instruction violated appellant's right to due process of law as guaranteed by the United States Constitution. Due process is denied when the court instructs the jury that it can infer that a defendantis guilty of burglary from evidence that doesnot rationally permit that finding under the circumstancesofthe particular case. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 99 S.Ct. 2213] [instruction permitting inference notrationally founded violates due processright].) A rational finding or inference requires evidence that makesthe fact to be found orthe inference to be drawn morelikely to be true than untrue. (Ibid.) Here, the corroborating evidence to support an inference that appellant entered the Kane’s building site in Menifee with the intent to steal the appliances did not rationally support such an inference. The only evidence in support ofthe inference that appellant committed a burglary at the Kane property was his - possible presence near the property around the time that the appliances were delivered. Apart from this fact, and appellant’s possession of the appliances, there was no other evidence — circumstantial or physical — to support the inference that it was appellant who entered the Kane house and took the appliances. Yet the jury was allowed to makethis inference based upon only slight corroborating evidence even though appellant offered a reasonable explanation for his possession of the stolen property which did notinvolve ~ entering the Kanehouse. By focusing on one isolated fact, the instruction here allowedthe jury to avoid assessing otherfacts in the case including appellant’s explanation for his possession of the appliances. (See United States v. Warren, supra, 25 F.3d at p. 899; United States v. Rubio-Villareal _ (9th Cir. 1992) 967 F.2d 294, 299-300.) Indeed,the United States Supreme -Court has held that only unexplained possession of stolen goods may 19 support an instruction to a jury that they may infer guilty knowledge from possession of stolen property. (Barnes v. United States (1973) 412 U.S. 837, 845.) CALCRIM No.376 doesnotinstruct the jury, at all, to take into consideration a defendant’s explanation for his possession of stolen property. The inference which the jury was permitted to draw in appellant’s case went far beyond that which would be proper under federal andstate constitutional due process standards. CALCRIM No.376 also affected appellant's substantial rights to due process of law becausethe instruction created an unbalanced chargeto the jury. Indeed, CALCRIM No.376inherently violates these constitutional principles. In Wardius v. Oregon (1973) 412 U.S. 470, 474 fn. 6) the United States Supreme Court stated that "state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to securea fair trial" violate the defendant's due processrights under the Fourteenth Amendment. (See also, Washington v. Texas (1967) 388 US. 14 [18 L.Ed.2d 1019, 87 S.Ct. 1920].) Noting that the Due Process Clause "does speak to the balance of forces between the accused andhis accuser," the Court held in Wardius that "in the absenceofa strong showingofstate interests to the contrary" there "must be a two-way street" as between the prosecution and the defense. (Wardius v. Oregon, supra, 412 U.S. at pp. 474-475.) The error requires that this Court grant _ review ofthe decision of the Court ofAppeal. 20 VI TRIAL COURT ERRED BY ALLOWING APPELLANT TO BE IMPEACHED WITH PRIOR JUVENILE ADJUDICATIONS. Prior to appellant’s decision to testify, defense counsel objected to any impeachmentof appellant with criminal conduct which occurred when appellant was a juvenile on the groundsthat the prior criminal conduct was remote and would be more prejudicial than probative. (3RT 499-501; 4RT 519-510.) The trial court permitted the prosecutor to impeach appellant with two instances of theft which occurred in 1991, over 15 years prior to the present offense, when appellant was 15 years old. (4RT 520; SRT 790-791; 2CT 441-443.) Appellant submits that the trial court abused its discretion by permitting appellant to be impeached with prior conduct which was so remote in time as to have practically no relevance to appellant’s credibility at the » time oftrial, but which was so unduly prejudicial that reversal is required. Section 788 of the California Evidence Code, as well as Article I, | section 28 ofthe California Constitution, permits the impeachment of witnesses in criminal cases by prior felony conviction. Additionally, the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Codesection 352 and other applicable evidentiary limitations. (People v. Lee (1994) 28 Cal. App. 4th 1724, 1740.) In admitting evidence of prior offenses or the subject matter of prior juvenile adjudications, the trial court (a) must disallow such impeachmentif the prior conviction does not involve "moral turpitude" or a ' "readiness to do evil" and (b) retains discretion to disallow impeachment of the defendantifthe probative value ofthe prior conduct, onthe issue ofthe 21 witness’ credibility, is outweighed byits probable prejudicial impact upon the jury. (Evid. Code §352; People v. Beagle (1972) 6 Cal.3d 441; People v. Castro (1985) 38 Cal.3d 301.) In assessing whetherprior criminal conduct involving moralturpitude should be admitted to impeach a criminal defendant, the trial court must consider(1) the extent to which the prior conviction reflects on the defendant's honesty andintegrity; (2) whetherit is near or remote in time to the instant offense; (3) whetherit is for the same or substantially similar conduct for which the accused witnessis on trial. (People v. Beagle and People v. Castro, supra; People v. Robbins (1988) 27 Cal.3d 303, 315.) Furthermore,in interpreting the third of the abovelisted factors, the court should admit prior convictions for the same or similar crimes "sparingly" for impeachment purposes because oftheir "heightened prejudice". (People v. Johnson (1991) 233 Cal.App.3d 425, 459.) A trial court is required to weigh prejudice against probative value, using the relevant Beagle - Castro factors. (Michail v. Fluor Mining and Metals, Inc. (1986) 180 Cal.App.3d 284, 287; People v. Montiel (1985) 39 Cal.3d 910, 924.) The court need not specifically articulate its weighing process, but the record mustreflect that the trial court has evaluated the evidence. (People v. Padilla (1995) 11 Cal:4th 891, 924.) Here, the trial court ostensibly weighed the prejudice associated with the use of appellant’s prior juvenile conduct against the potential for prejudice and limited the impeachmentto twoinstancesoftheft from two separatevictims in 1991. While thetrial court’s decisionto limit the use of impeachment appears to have been areasoned exercise of discretion, appellantrespectfully submits, in light of the relevant Beagle-Castro factors set forth above, it was not. This is primarily so because the conduct occurred 22 when appellant was only 15 years old, over 15 year prior to the current offense and 17 years priorto trial. Additionally, there was no evidence that similar conduct evincing “moral turpitude” occurred subsequent to those two | thefts. Furthermore, the fact that appellant had been adjudicated fortheft offenses in 1991 hadlittle actual bearing upon his credibility at his trial in 2008. If anything, the prior conduct was cumulative to other evidence presented during the prosecution case-in-chief from which the jury could infer dishonesty such as appellant’s use of a false name and his attempt to have Ms. Trivich take responsibility for the accident. As such, the jury was not presented with a “false aura of veracity.” (People v. Tamborrino (1989) 215 Cal. App. 3d 575, 590.) It was entirely unnecessary for the prosecution to present additional evidence bearing upon the issue of appellant’s . credibility, particularly when that evidence concerned prior criminal conduct similar to that in the present case. The prejudicial effect of allowing appellant to be impeached with these offenses was so overwhelming underthe circumstancesofthis case, ‘that the impeachment should not have been permitted. Entirely aside from issues of appellant’s credibility as a witness, by presenting the jury with evidence that appellant had, in the past, stolen property from others was devastating to the defense, particularly in light of the weak evidence connecting appellant to the burglary. This particularly prejudicial aspect of admitting prior crimes evidence as impeachmenthas often been addressed by reviewing courts. (Shepard v. United States(1933) 290 U.S. 96, 104; see also People v. Collins (1968) 68 Cal.2d 319, 330-33 1.) (People v. Antick (1975) 15 Cal3d 79,at pp. 98-99, overruled on another point in People v. | McCoy (2001) 25 Cal 4th 1111.) Appellant respectfully submits that the 23 error necessitates review by this Court. Vil PUNISHING APPELLANT FOR FIRST DEGREE MURDER UNDER THE CIRCUMSTANCESOF THIS CASE CONSTITUTES A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS UPON CRUEL AND UNUSUAL PUNISHMENT. Appellant was sentencedto an indeterminate term of 25-years-to-life imprisonment, the penalty which applies to a conviction for first degree felony murder. Appellant submits that under the peculiar facts of this case, imposition ofthis harsh sentence is so out of proportion to his culpability that the punishmentis cruel and unusualin viola‘ion of the Eighth _ Amendmentofthe United States Constitution and Article 1, section 17 of the California Constitution. In Harmelin v. Michigan (1991) 501 U.S. 957, the United States SupremeCourt held in a plurality opinion that while the Eighth Amendment encompasses noproportionality guarantee, it nonetheless may forbid extreme sentences that are grossly disproportionate tothe crime. The Court addedthat consideration of the gravity of the offense and the harshness of the penalty were sufficient to uphold the constitutionality of a sentence. (Id., at | pp. 1004-1004, discussing prior law under Solem v. Helm (1983) 463 U.S. 277, 292; see People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134- 1135.) For the reasons set forth below, however, appellant's sentenceis grossly disproportionate to the offense and reversal is compelled under the Eighth Amendmentto the United States Constitution. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) Oo \ In People v. Dillon (1983) 34 Cal.3d 441, our Supreme Court upheld 24 the felony murder rule over a compendium of constitutional challenges and concludedthat the rule governed a broad spectrum of homicides -- even those which were unintentional or the result of recklessness or panic -- committed in the course of one of the enumerated felonies set forth in Penal Code section 189. But although it upheld the rule's sweepas to proof of felony murder, the Court concluded that the penal consequenceof section 189, a statutorily-compelled sentence offirst degree murder, was constitutionally vulnerable: "As the record before usillustrates, however, in some first degree felony-murder cases this Procrustean penalty may violate the prohibition of the California Constitution against cruel or unusual punishments. (Cal. Const., art. I, § 17.)" dd., at p. 477.) The Court in Dillon then conducted a careful analysis pursuant to In re Lynch (1972) 8 Cal.3d 410, and concludedthat the life sentence for first degree murder was disproportionate to the defendant's culpability pursuantto article I, section 17, of the California Constitution, and modified the judgmentof conviction to reflect a sentence of second degree murder " because the defendant nonetheless "intentionally killed the victim without legally adequate provocation." (Dillon, supra, 34 Cal.3d at p. 489.) The facts of this case are comparable to those in Dillon, except for the fact that appellant’s culpability for the offense offirst degree murder is evenless than that of the defendant in Dillon because appellant’s acts of overloading his truck with stolen property and driving on the freeway do not demonstrate an intentto kill or even thewanton disregard for life necessary _ for a second degree murderconviction.. As such, appellant’s culpability was _ dess than that of the defendantin Dillon, whointentionally armed himself with a gun priorto initiating the criminal activity and who was the actual shooter. Obviously, the defendant’s conduct in Dillon posed a high risk of 25 danger by virtue of the defendant’s use of a weapon. With respect to the final two elements of a Lynch analysis-- the danger of the offense, and the dangerof the offender to society -- appellant does not want to minimize the gravity of the current offense but again implores the court to consider his actions in light of the surrounding circumstances. Appellant did not engage in any intentional violent conduct towards any victim. Indeed, assuminghis guilt for the offense of burglary, he took precautions to avoid confrontation with property owners or those who might attempt to apprehend him during an escape. The fact that he may have negligently overloaded his truck may demonstrate greed, it does not demonstrate such a dangerouslevel of culpability that appellant should be treated in the same manner as one who premeditates, deliberates and commits first degree murder. Undera proportionality review appellant does not merit the term imposed upon him here. In People ve King (1993) 16 Cal.App.4th 567, the court recognizedthat "proportionality review" remainsa viable concept today and, in a proper case, should be unhesitatingly applied to mitigate overly- harsh sentences. (Id., at pp. 575-576.) The statutory sentencing scheme applied to appellant resulted in an overall sentence which is disproportionately excessive in relation to his actual culpability under the | circumstancesofthis case. 26 CONCLUSION For the reasonsset forth herein, appellant respectfully urges this Court to grant review. Dated: February 16, 2011 Respectfully submitted, SHARON M. JONES// Attorney for AppeHany COLE ALLEN WIJAINS WORD COUNT CERTIFICATE - Counselfor petitioner hereby certifies that this brief contains 7,676 words, as counted by the word count function of counsel’s word processing program. I declare, under penalty of perjury that the foregoing Word Count Certificate is true and correct. Executed on February 16, 2011, at Ventura, ONM.ol . California. 27 Filed 1/7/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G040716 V. (Super. Ct. No. 06NF2339) COLE ALLEN WILKINS, OPINION Defendant and Appellant. Appeal from ajudgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed. . Sharon M.Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent. * * * It has long been recognizedin this state that “[t]he purpose of the felony- murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. [Citations.]” (People v. Washington (1965) 62 Cal.2d 777, 781, italics added.) Defendant committed a burglary of a residence under construction before workers arrived to begin their day. He loaded the back of his pickup truck with numerous boxed appliances and fixtures. He stuffed the cab of the truck to the windowswith smaller items. In his haste to leave the scene unnoticed, he left the tailgate on the truck down anddid not tie down the loot loaded into the bed of the truck despite the fact that he hadties in his truck. Sixty miles later on his drive home where he would unload the loot, the stove defendantstole fell off the back of his truck, resulting in the victim’s death. The jury convicted defendantoffirst degree murder under the felony- murder rule. He contends,inter alia, that the evidence does not support his conviction and that the court erred whenit refused to instruct the jury that a burglary is complete upon the perpetrator reaching a place oftemporary safety. Although defendant was,by all accounts, driving normally andhis crime had not yet been discovered, defendant committed the acts that resulted in the deathwhile he wasat the scene of, and in the process of committing, the burglary. The acts that caused the homicide — the failure to tie down the load ofstolen lootandraise thetruck’s tailgate — occurred at the scene of the burglary, not 60 miles later. when part of the | unsecured loadfell off the back ofthe defendant’s truck as he drove to where he could unload and hide the haul. As a result, it was not unreasonablefor the jury to conclude the homicide and the burglary were part of one continuous transaction, inasmuch as defendant was in flight from the scene with his license plates secreted. Wealso reject defendant’s argument that the trial court erred in refusing his request to instruct the jury pursuant to CALCRIM No.3261[burglary complete uponthe burglar reaching a place of temporary safety]. The Supreme Court has held the instruction on the “continuous-transaction” doctrine is sufficient to inform the jury on the duration of a felony for purposes of the felony-murderrule and that the escaperule, which terminates a felony at the point the perpetrator reaches a place of temporary safety, defines the scope of an underlying felony for certain ancillary purposes and not for felony-murder purposes. (People v. Cavitt (2004) 33 Cal.4th 187, 208 (Cavitt).)' Lastly, we address defendant’s argumentthat the 25 yearsto life sentence imposed in this matter is cruel and unusual. Given defendant’s record as set forth in a nearly one-inch thick probation report and described by the seasonedtrial judge as “chilling,” as well as the fact that the jury found defendant guilty of first degree murder, we reject this argumentas well. I FACTS Appliances at the Work Site Defendantlived in Long Beach with Nancy Blake. On one day of the week before July 4, 2006, and one dayofthe week after, he worked at a homeconstructionsite in Menifee, a city in Riverside County. The homeownerhad a delivery of major appliances and other items purchased from Home Depot on June 28. Defendant’s cell phone records showedhe wasin the area of the Menifee jobsite on the delivery date. The delivery included a refrigerator, a dishwasher, a stove, a range hood, a microwave and a sink. tt also includedlight fixtures, ceiling fans, door locks and doorhandles.. Mostof the items were stored in the kitchen area and somewerein the garage. _ At the end of the work day on July 6, all of the items werestill in the residence when the workers locked the premises. While the owner was having breakfast ' The continuous transaction doctrine and the escapeorflight rule, which refers to the accused reaching a place of temporary safety, are closely related, but distinct concepts. (Cavitt, supra, 33 Cal.4th at p. 208.) Cavitt provides the roadmap to successful navigation ofthe difficulty created by the courts’ use of both conceptsin connection with the felony-murderrule. - the next morning, he received a call from the carpenter working at the housetelling him all of his purchases were missing. Hecalled the police. Defendant’s cell phone records showedhe wasin the area of the Menifee construction site during the early morning of July 7. Defendant, Trivich, and Telephone Calls In September 2005, sometimeafter their romantic relationship ended, Kathleen Trivich and defendant entered into a business relationship to buy a piece of property in Palm Springs and build on it. Trivich paid for the land and wasto pay for the materials to build a house on the property. Defendant said his contribution was to “basically oversee the project.” Trivich also bought a Ford F-250 truck for defendant in 2006. The truck wasto be used to haul building materials. As of July 2006, no construction “whatsoever” had been completed. On July 6, 2006, defendantleft his home in Long Beach about “8:30 or 9:00” p.m. He was driving his Ford F-250 truck. Trivich was at a speech and acting class at 8:00 p.m.that night, until just after midnight. Sometime thereafter she checked her cell phone and found a message from defendant. He wanted gas money. She called defendant back on his cell phone. She agreed to give him money. She drove to Long Beach, where she put $100 or $200 in an envelope andslid it under the door to his house. | After driving to Long Beach, where Trivich went to an ATM and withdrew the moneyshe left for defendant at his house, she again spoke to defendant on the phone. She told him she dropped the moneyoffat his house, and defendantsaid he had some | news for her. Hesaid, “I’ve got a surprise for you. I got some really big things for the | kitchen.” Trivich asked him ‘what he had, but he did not tell her. At the timeofthis call, defendant’s cell phone was using4 cell tower along the 91 Freeway. The Freeway Calls to the California Highway Patrol began at 5:01 a.m. on July 7, 2006. Thecallers said there were items in one ofthe lanes of the westbound 91 Freeway,right before “Kraemerand Glassell in Anaheim.” One said he ran into a big box, and that he saw someoneelse run into it, too. About four minutesafter the first call, someone reported that a tanker truck rolled over. Attrial, Danny Lay testified he was westbound on the 91 Freeway somewhere around Kraemerrightbefore a freeway interchange at about 5:00 o’clock in the morning of July 7, 2006. He wasin the secondlane to the right of the carpool lane. A Ford pickup without a rear license plate was in front of him. There were “a lot of boxes in the back ofthe truck.” When Lay was 25 to 50 yards behind the truck just east of Kraemer,“a large box fell from the right corner of the truck into the freeway.” Lay had a car to his left and a car to his right, so he hit his brakes andtried to stop. He hit the box. ; Lay proceeded after the pickup. He turned onhis flashing lights, turned his bright lights on and off repeatedly andhit his horn. The truck slowed down andboth vehicles pulled off the freeway. Lay pulled up next to the passenger side of the pickup, but there were so many boxes blocking the window,he couldn’t see the driver. He thinks the driver looked overat him, saw him and then “accelerated away.” Lay kept flashing _his lights and honking his horn, and wasfinally able to pull up alongside the pickup again. The driverofthe pickup stopped and threatened Lay, using a vulgarity. Lay identified defendant as the person who was driving the pickuptruck. Defendant and Lay gotout of their vehicles, and defendant said he was “going to kick [Lay’s].ass.” Lay said, “bringit on, but first something fell from your truck.” Defendant lookedin the back of the pickup and remarked, “Oh, my God. It’s a thousand-dollar stove.” Lay saw the tailgate on the truck was down. There were noropesor tie-downs. 5 He also sawvarious sized boxes. He rememberedseeingceiling fansand a refrigerator. He asked defendant for identification. Defendant wentto the glove box and appeared to look through it. He then said he must have forgotten his license, and that a friend, Kathleen Trivich, ownedthe truck. He identified himself as Michael Wilkins. Charles Thomas wasalso on the freeway that morning, driving behind a white truck. The white truck madea “pretty severe” lane change. Thomassaid “as soon as he swerved and I kind of got startled and slowed down,and thenall of a sudden, I saw a white box, my headlights shined on this white box.” He explained it was dark out and he wanted to move, but “there was cars anda lotoftraffic.” He was askedif he hit the box, and responded: “It wasso fast. Yeah, I hit it. It was so fast. I didn’t slam on my brakes, there was nothing I could do.” Hesaid he called 911, and that another vehicle hit the box, too, and they both pulled over to the side of the road. The other vehicle suffered a flat tire, and “had a hard time limping off.” Donald Wade wasdriving behinda big rig truck that morning, and “saw an automobile comingacross outofthe left lanes across the traffic about, looked like about 90-degree angle and he hit the truck in front of me.” James Davies, also on the freeway at the time, saw a truckasit hit the K- rail. “When I moved forwardin traffic about 50 yards or so, I did see an appliance sitting in the lane.” Davies pulled overto the side of the road, called 911 and spoke with a motorcycle officer who arrivedat the scene. Thomas Hipsher was driving “a big truck, tractor with two trailers” carrying a full load ofpowdered cement that morning as he drove along “the slow lane” at 55 miles per hour. He felt an impact and lost controlof his vehicle. He suffered _ bruised ribs and “a lot of cuts and bruises.” He never saw the car that struck him. The Death California Highway Patrol Officer John Heckenkemper respondedto the scene shortly after 5:00 a.m. on July 7. He described the scene: “Upon myarrival, there was — traffic was obviously in disarray. There was a stove in the middle of the lanes and beyondthat, just west of the stove, there was an accident involving big rig that had overtumed.” Captain paramedic John Mark of Anaheim described what he saw: “Upon our arrival, we found a large semi-truck commodity hauleronits side off the shoulder of freeway with the cab extending off the shoulder. And we recognized that there was a vehicle actually trapped betweenthe twotrailers.” They could not get to the car underneaththe truck until the truck was removed. Then “it took a fair amount of time to extricate the victim from the vehicle.” The man inside was deceased. The coronertestified she conducted an autopsy of David Piquette. She described numerousinjuries on the body, and said the cause of death was “positional asphyxia. That caused — due to compression of neck and chest, positional asphyxia.” An accident reconstructionist testified “Piquette swerved in an area just shy of where the stove was. . . to hit the big rig where we know he did.” His investigation showedthe driver of the big rig “steered to the right at about the same time thata driver probably saw . . . Piquette coming from theleft, and then that would be a completely natural human reaction.” Hesaid that in order to avoid hitting the stove, given the conditions, a driver in Piquette’s position would have had to have been driving at 28 miles per hour, and the speed limit in the area was 65 miles per hour. Afterward Blake received a telephonecall from defendant “around” 5:00 or 5:15 on _ the morning of July 7, 2006. Hesaid he was coming home,andarrived at 5:30 or 6:00 a.m. Defendant said he needed help unloading some items. When she wentoutside, she saw in the truck “a lot of boxes and what looked like to be . . . a refrigerator laying down 7 on the bed with [a] box on top. Everything was boxed.” Boxes werealsopiled “to the window”inside the cab ofthe truck. Later that day, the two went to Palm Springs where defendant owned some property. He and Trivich planned on building a house on the property. On the evening of July 7, defendant telephoned Sean Doherty and asked if “it would be okay for him to store some appliancesin [his] garage.” The next day, July 8, Trivich and Doherty were in Palm Springs, where Doherty owns a home. On July 8, defendant and Doherty spoke when they were alone. Defendant told Doherty, “I’m in trouble. Something’s happened. There has been an accident.” Defendant said somebody waskilled. Doherty wastold “something had fallen off [defendant’s] truck, a stove hadfallen off the truck, and somebody had swerved,orhit it and swerved and was killed.” | Blake recalled that at some point on July 8, there was a conversation about what had happened on the 91 Freeway. Blake said defendant “suggested I don’t speak to anyone aboutthe accident until he could find a lawyer.” | Doherty said that “maybe 8:00 or 9:00” on the evening of July 8, he, Blake, Trivich and defendant were together. Defendant was attempting to hide the fact that he © had been the driver. Doherty was asked whether he heard defendant make a statementto Trivich regarding who was driving the truck. Doherty responded: “That they were — were trying to find some way to makeit look like she was driving the truck versus him.” He said he heard defendant“trying to convince” Trivich to lie and say she was driving the truck when the incident happened. | At somelater time, Doherty took “investigators from the highwaypatrol” into his garage. They looked at the various items, which included a refrigerator, a | dishwasher and a microwave. Noneofthose items had beenin his garage before he gave defendant permissionto store things there. California Highway Patrol Officer Joseph Kenneth Morrison droveto the construction. The distance from the construction site to the place where Piquette was killed is a little over 60 miles. The distance from where Laysaid he first saw the truck carrying the appliancesto the collision scene is approximately 5.6 miles. Defendant’s Testimony Defendanttestified in his own defense. He explained his involvement with Trivich with respect to Palm Springs: “J approachedher in the late part of 2005, I don’t know exactly what month it was, but basically at that time, you know,the real estate market wasat its peak, things were going good. I wasliving in Palm Springs part time. Previousto this, Sean whotestified, had mentioned that he*had purchased this house for a _ certain amountand nowhishouseis valued at this. I saw this as a good opportunity to possibly, you know, buy someproperty, build a house, sell it and, you know, hopefully makea profit from it.” He added: “because she agreed to do the financial backing,I had a deal that wasto basically oversee the project and make sure the housegot built in a timely manner and made sure everything went according to plan.” With regard to the appliances, defendantexplainedthat on July 6, 2006, he had oral surgery, and then believed that night he “left [his] house slightly after 10:00, 10:15, 10:20, somewherein that timeframe” and “went to Palm Springs.” Before getting to Palm Springs,he stopped at the Home Depot“overthereoff of the 91 and Weir CanyonI believeit is.” He added: “When I got there, I pulled into the parkinglot. Rick”) was there, he waswith another fellow. I did not recognize him. He had a truck load full of stuff. We talkedbriefly. He asked meif I was interested in the stuff, I told him I was, however, I told him I wasn’t carrying that much cash on me at that time. My intention at that time was to buy the fridge and possibly the stove depending on how ? Defendant did not provide Rick’s last name. much he was going to charge me. [§] He asked meif I was interested in the stuff and I said, yes, definitely. He asked me if there was anyway I can come up with the money. I told [him], yes, if he could give me another houror so, I can go back home,retrieve some money and meethim at a later time.” They agreed to a price of $1,500 for everything. He admitted he suspected the merchandise may have beenstolen, “almost too good to be true.” He said: “I needed the stuff for the house to be built in Palm Springs.” Defendantsaid he had some tie-downsonhis truck but the boxes were stacked on top of the tie-downsand he couldn’t get to them. He weighed his options, “jumped on the tailgate, I moved the stuff around and, you know,honestly felt at that time with notraffic or anything like that and just the weight of the items, I didn’t feel that there was a danger ofanything falling offmy truck. We were talking about a 185-pound stove and a 200-something-poundfridge.” — On cross-examination, he admitted that in 1991 he twice stole property belonging to others with the intent to permanently deprive the owners of their property. Heconfirmedhe had been to the Menifee jobsite twicepriorto this incident. Hesaid hefirst met Rick at a jobsite “in the Temecula or Menifee area.” The second time he saw Rick was in a parking lot in Temecula, when defendant was on _ his way to a restaurant. Rick took defendant to the back of his truck where there were “stacks and stacks oftile. I looked at them, and he had two different kinds. I asked him ‘how much. He gave me a price. I thought the price was décent.” Defendant said he | purchased thetiles from Rick. | The third time defendant saw Rick was when he was walking into a 24 Hour Fitness in Temecula on July 5, 2006. Rick flagged him over to his truck. When the prosecutor reminded defendant he had already said the incident at the Home Depot was the third time, defendant said, “I’m getting confuseda little bit.” Defendant went on to explain that at the time he saw Rick by the 24 Hour Fitness, Rick told him he had a fridge 10 and a stove for $500. They madea deal, even though Rick did not have the appliances with him. When the prosecutor asked him whetherornothetestified differently on direct, defendant accused the prosecutor of confusing him. Defendantsaid he and Rick agreed to meet the following evening at 11:00 p.m. in the Home Depotparkinglot in Yorba Linda. Defendant admitted to the prosecutor that his plan wasto takeall of the stolen merchandise to Palm Springs and unload it himself at Doherty’s house. He also admitted that he knew he oughtto have tied them down. Defendant then told the jury that after he made his purchases in the Home Depotparkinglot, he droveall the way to Palm Springs to Doherty’s house,arriving at about 2:00 a.m., and realized he could notlift the items by himself. So he turned around to drive to Long Beach,starting the journey“a little after” 3:00 a.m., without even unloading the smaller items that were in the cab ofthe truck, or taking the time totie anything down. Hesaid heleft the tailgate down. Defendantsaid he drove toward Blake’s house in the fast lane. He admitted he lied to Lay, gave him a false name and gave him a false contact phone number. He said helied because he “wasn’t covered funder] the insurancepolicy.” He admitted the license plates and registration for the truck he was driving were in the passenger side door, even though he told Lay he did not have them. Later he added another reason he lied was because his license had been suspended. Asthe prosecutor questioned defendant further, he testified that when he arrived at Blake’s home,he was able to unload the items himself. Blake helped him with the smaller items, but not with the larger ones. He said he useda dolly. I DISCUSSION A. Impeachment with Prior Juvenile Adjudications 11 Priorto trial, defendant moved to exclude evidenceofhis prior juvenile adjudications for burglary in 1988 and 1990, for kidnapping in 1992, and for rape in 1993, as well as his adult conviction forfailing to register as a sex offender. He asserted this evidence wasnot admissible to impeach his testimony because the failure to register as a sex offender is not a crime of moral turpitude and juvenile adjudications are not convictions. The prosecutor stated his intention to introduce evidence ofthe conduct underlying each of the juvenile adjudications, but not to introduce evidenceofthe adult conviction. The court exercised its discretion and excluded any reference to defendant’s failure to register as a sex offender, the rape adjudication that presumably gaverise to the registration requirement, or the conduct underlying the rape adjudication. It also excluded any reference to the burglaries due to potential prejudice given the importance of the burglary in the present case. The court held, however,that defendant could be asked whether he committed thefts on August 21, 1991,and November 20, 1991. When asked, defendant admitted he committed a theft on each occasion. _ Impeachmentbased uponcriminal conductis not limited to introduction of a prior felony conviction. A defendant may be impeached with past criminal conduct involving moral turpitude. (People v. Harris (2005) 37 Cal.4th 310, 337.) Admission of such evidenceis “subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations.” (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.) Thetrial court exercises broad discretion in determining the admissibility of evidence and we review the court’s ruling for an abuse of discretion. (People v. Harris, supra, 37 Cal4th at p. 337.) “‘[D]iscretion is abused only if the court exceeds the boundsofreason,all of the circumstances being considered. [Citation.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) In exercising its discretion, the trial court should take into accountfactors similar to those that must be considered when the admissibility of a prior conviction is . - 12 under consideration: “(1) whether the [conduct] reflects adversely on an individual’s honesty or veracity; (2) the nearness or remotenessin time of [the conduct]; (3) whether the conductis for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does nottestify out of fear of being prejudiced because of the impeachmentbyprior convictions. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Defendant does not contend the conductfails to reflect adversely uponhis veracity. It does. (People v. Gurule (2002) 28 Cal.4th 557, 608 [“theft crimes necessarily involve an elementof deceit”].) The third above listed factoris not an issue. Defendanttestified. The court could have permitted the prosecution to introduce evidence that defendant committed burglaries, but did not do so because of the similarity with the present alleged conduct, instead limiting impeachmentto generic thefts. The only factor at issue is remoteness. The conduct with which defendant was impeached occurred in 1991. The charged offense occurred in 2006, 15 years later. The prior conduct could be characterized as remote, but this remoteness does not automatically render such evidence inadmissible for impeachment purposes. (Cf. People v. Mendoza, supra, 78 Cal.App.4th at p. 925 [“convictions remote in time are not automatically inadmissible for impeachment purposes”].) In People v. Green, supra, 34 Cal-App.4th 165, the court found a defendant’s 20-year old prior conviction was not inadmissible due to remoteness because the defendant had not led a blamelesslife in the interim: (/d. at p. 183.) Neither has defendant. After his discharge from the California Youth Authority on the August 1991 burglary that included his rape of a woman,he suffered a felony conviction as an adult forfailing to register as a sex offender. The court considered the remoteness of the prior conductand defendant’s subsequent actions. Accordingly, we find the trial court did not err in permitting defendant to be impeached with the fact that he committed two prior thefts. Wedo notherelist defendant’s other subsequent transgressions as they were _ not made known to the court prior to the court’s ruling. 13 B. Jury Instructions Defendant arguesthe trial court erred whenit instructed the jury on aiding and abetting and on the effect of recent possession of stolen property. He also contends the court erred whenit refused his requested instruction on the escape rule. We address each argumentin turn. 1. Aiding andAbetting The court instructed the jury on aiding and abetting pursuant to CALCRIM Nos. 400 and 401. Defendant argues there was no evidencein the record to support the instructions. “Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ [Citation.] ‘That obligation includesinstructionson all of the elements of a charged offense’ [citation], and on recognized ‘defenses ...and onthe relationship of these defenses to the elements of the charged offense.’ [Citations.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) Here the evidence supported jury instructions on an alternative liability theory ofaiding and abetting. Besides defendant’s story about meeting someone named Rick and another man in Yorba Linda, defense counselalso obliquely raised the issue at trial. While cross-examining a highwaypatrol investigator, counselquestioned about the number ofpeople required to load the itemsfound at Doherty’s home, and elicited the — fact that lifting was done by morethan one person. Additionally, there was evidence law enforcement found a fingerprint outside a laundry room windowatthe burglarized residence. Todd Gorman, who locked up the residence at 7:30 or 8:00 p.m. on July 6, 2006, testified the laundry room window did not latch properly. Gorman showed a 14 highwaypatrol investigator the laundry room window because he thoughtthe burglar probably gained entry through the window.A latent fingerprint waslifted from outside the window. Defense counsel attempted to demonstrate on cross-examination ofthe investigator that the print was not defendant’s. Although objections to his questions were sustained, defendant was in a position to argue the burglar was someoneother than defendant because if the fingerprint was his, the prosecution would have introduced that evidence. Thus, there was evidence from which a jury could have inferred defendant aided and abetted another in committing the burglary. 2. Recent Possession ofStolen Property Defendant next contends “the trial court prejudicially erred and denied [him] due process of law whenit instructed the jury that theycould find [him] guilty of burglary on the basis of evidence that did not rationally support an inference that he was guilty of that crime.” The court instructed the jury: “If you conclude that the defendant knew he possessed property and you concludethat the property hadin fact been recently stolen, you may notfind the defendant committed the crime of burglary based on those facts alone. However, if you also find that supporting evidence tendsto provehis guilt, then you.mayconcludethat the evidenceis sufficient to prove he committed burglary. [{] The supporting evidence need only beslight and need not be enoughbyitself to prove guilt. You may consider how, where, and whenthe defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [9] Rememberthat you maynotfind that the defendant committed any crime unless you are convinced that each fact essential to the conclusion that the defendant committed that crime has been proved beyond a reasonable doubt.” | | An inference of guilt may be drawn from unexplainedpossession of stolen property. (Barnes v. United States (1973) 412 U.S. 837, 843.) “Possession ofrecently stolen property is so incriminating that to warrant conviction there need only be, in 15 addition to possession, slight corroboration in the form of statements or conductof the defendanttending to show his guilt. [Citations.]” (People v. McFarland (1962) 58 Cal.2d 748, 754.) “As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inferenceis sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (People v. Williams (2000) 79 Cal.App.4th 1157, 1173.) Here there was substantial corroborating evidence. Defendant worked at a constructionsite near the burglarized house. His cell phone records show he wasin the area at the time the merchandise wasdelivered to the residence andat the time of the burglary. The night the appliances were stolen, he called Trivich and told her he “got somereally big things for the kitchen.” There was also evidence from which an inference could be drawn that he was in a hurry to get home with the stolen itemsin that he did not take the time to secure them on his truck. Plus, he testified he “neededthe stuff for the house to be built in Palm Springs.” Defendant testfied he met with Rick in Temecula onJuly 5,at approximately 4:15 p.m., and arranged to buy a refrigerator and stove from Rick. They agreed upon a price of $500. This purported meeting took place before the burglary. There is no evidence Rick ever workedonat the burglarized house or knew ofthe appliances andfixturesit contained. | | Wenotethelast paragraph ofthe instruction cautions the jury to “[rjemember that you may notfind that the defendant committed any crime unless you _ are convinced that each fact essential to the conclusion that the defendant committed that crime has been proved beyond a reasonable doubt.” Nothing in this record implicates | _ defendant’s constitutional rights, lessened the prosecution’s burden or permitted an inference of guilt without a rational basis. The trial court did not err whenit instructed the jury on recent possession of stolen property. 16 3. Denial ofRequest to Instruct the Jury That a Burglary is Complete When the Perpetrator Reaches a Place ofTemporary Safety The court instructed the jury that defendant was charged with murder under the felony-murderrule based uponhis alleged commission of a burglary, and that the felony-murderrule requires “the act causing the death and the burglary were part of one continuoustransaction.” (CALCRIM No. 540C; see Pen. Code, § 189.) The court then” gave a modified version of CALCRIM No. 549, defining acontinuoustransaction: “In order for the People to prove that the defendantis guilty of murder under a theory of felony murder, the People must prove that the burglary and the act causing the death were part of one continuoustransaction. The continuoustransaction may occur overa period of time in more than onelocation. [{] In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [{] 1. Whether the felony andthe fatal act occurred at the same place;[{]] 2. The time period, if any, between the felony and the fatal act; [{] 3. Whether the fatal act was committed for the purpose of aiding the commissionofthe felony or escape after the felony; [{] 4. Whetherthe fatal act occurred after the felony but while the perpetrator continued to exercise control over the person who wasthetargetofthe felony; [{]J 5. Whetherthe fatal act occurred while the perpetrator was fleeing the scene of the felony or otherwise trying to prevent discovery or reporting of the crime; [{] 6. Whether the felony was the direct cause of the death; [[] AND [{] 7. Whether the death was a natural and probable consequence ofthe felony. [{] It is not required thatthe People prove any one- of these factors or any particular combination of these factors. The factors are given to assist you in deciding whetherthe fatal act and the felony were part of one continuous transaction.” 17 The court denied defendant’s requestto instruct the jury with CALCRIM No. 3261, which defines the escape rule. That instruction providesin pertinentpart: “[The crime ofburglary . . . continues until the perpetrator[s] (has/have) reacheda place of temporary safety. The perpetrator[s] (has/have) reached a place of temporarysafety if (he/she/they) (has/have) successfully escaped from the scene[,] and (is/are) no longer being chased[, and (has/have) unchallenged possession ofthe property].]” The court refused this instruction per the Bench Notes following CALCRIM No. 3261. “This instruction should not be given in a felony-murdercase to explain the required temporal connection betweenthe felony and the killing.” (Cal. Crim. Jury Instns. (2011) Bench Notes to CALCRIM No.3261, p. 990.) The Bench Note is based upon the Supreme Court’s decision in Cavitt, supra, 33 Cal.4th 187. | The felony-murderrule is contained in Penal Codesection 189, and states in pertinent part: “All murder... which is committed in the perpetration of. . . burglary ... is murderofthe first degree.” “‘“The purpose of the felony-murderrule is to deter _ felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” [Citation.] The Legislature has said in effect that this deterrent purpose outweighs the normallegislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whetherthe killing was with or without malice, deliberate or accidental, and calibrating our treatmentofthe person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgmentofthe Legislature, he is nolongerentitled to such fine judicial calibration, but will be deemed guilty offirst degree murderfor any homicide committed in the course thereof.’ [Citation.] Policy concernsregarding the inclusion of burglary in the first degree felony-murderstatute remain within the Legislature’s domain, | and do not authorize this court to limit the plain language of the statute.” (Peoplev. Farley (2009) 46 Cal.4th 1053, 1121.) “The mental state required is simply the specific intent to commit the underlying felony;neitherintentto kill, deliberation, premeditation, 18 nor malice aforethought is needed. [Citations.]” (People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823,fn. 1.) Whenthe felony-murderrule is invoked by the prosecution, the issue of whether the homicide occurred “in the perpetration of” the underlying felony often arises. “First degree felony murder does not require a strict causal relation between the felony and the killing. The only nexusrequired is that both are part of one continuous transaction. [Citations.]” (People v. Johnson (1992) 5 Cal.App.4th 552, 561.) The continuoustransaction doctrine was adopted “‘for the protection of the community andits residents.’” (Cavitt, supra, 33 Cal.4th at p. 207.) The Cavitt court recognized that the continuous-transaction doctrine and the escape rule. are “two related, but distinct, doctrines.” (Cavitt, supra, 33 Cal.4th at p. 208.) In Cavitt, Cavitt and Williams plotted with Cavitt’s girlfriend McKnightto burglarize the McKnightresidence, tie up McKnight’s stepmother, Betty, and steal Betty’s jewelry. Once they were inside, Cavitt and Williams put a sheet over Betty’s head, bound her wrists and ankles, and beat her. They tied up McKnightandleft her at the scene to make it look as if she, too, was a victim. Cavitt and Williams then left the scene. Betty died of asphyxiation. The defendants’trial position was that McKnight intentionally killed her stepmother after they left the scene and had reached a place of temporary safety. (/d. pp. 193, 206.) Unlikethe present case, the jury in Williams’strial wasnot only instructed on the continuoustransaction-rule, but was also given an escape/temporary safety instruction. Williams’s contention on appeal was that thetrial court erred whenit addedto the temporary safety instruction a paragraphstating perpetrators have not reached a place of temporary safety if the victim ofthe burglary remains in the control of any of the perpetrators. He argued the law does notrequire all perpetrators to reach a place of temporary safety before the burglary is deemed completed. (/d. at p. 208.) 19 The court held that whereas the “‘escape rule’ defines the duration of the underlying felony, in the context of certain ancillary consequencesofthe felony”! . . . [t]he continuous-transaction doctrine, . . . defines the duration offelony-murderliability which may extend beyond the termination ofthefelony itself, provided the felony and the act resulting in death constitute one continuoustransaction. (Cavitt, supra, 33 Cal.4th at p. 208, seconditalics added.) In rejecting Williams’s argument, the court stated it “would ‘have beensufficient to have instructed the Williams jury on the continuous-transaction doctrine alone.” (lbid.) The genesis of a “continuous transaction” requirement in a felony-murder context is found in People v. Miller (1898) 121 Cal. 343. There, Miller tricked Mrs. Burns’s sister into bringing Nellie Ryan, his former housekeeper, to Mrs. Burns’s house. When Ryan arrived and discovered Miller was inside, she turned andleft. Miller descended thestairs, exited the house, and immediately began shooting at Ryan, who ran acrossthestreet and entered the Child residence. Miller attempted to pursue Ryan and hadhis hand on the door handle of the Child residence when James Child “took hold of . Miller.” Miller immediately turned.and shot Childs. (/d. at p. 345.) The court rejected Miller’s contention that the trial court erred in instructing the jury regarding burglary, noting that section Penal Code 189 applied to killings “‘committed in the perpetration, or attempt to perpetrate .. . burglary’” and entry with the intent to kill Ryan wouldsuffice. (id. at pp. 346-347.) The court concluded “[t]he attempt to kill Nellie Ryan andthe shooting of Childs were part of one continuoustransaction.” (/d. at p. 345.) > These ancillary consequences include determining whether the defendant. inflicted great bodily injury in the course of a robbery (People v. Carroll (1970) 1 Cal.3d 581, 584-585[injury inflicted on a robbery victim after property asported but before robber reached place of temporary safety]), whether a kidnapping was for the purpose of committing a robbery (People v. Laursen (1972) 8 Cal.3d 192, 199-200 [kidnapping during escape may constitute kidnapping to commit a robbery]). and whetherafirearm was used during the crime (People v. Fierro (1991) 1 Cal.4th 173, 225-226[firearm used _ in escapeconstitutes use during commission of the robbery]). 20 Thirty-two years later, our Supreme Court decided People v. Boss (1930) 210 Cal. 245. In that case, Boss and Davis robbed employeesofa store. (/d. at p. 247.) The defendantsleft the store and wentinto the street when an employeealighted from the store and gave chaseacrossthe street and toward an alley, where Boss turned, shot, and killed the employee. (/d. at pp. 247-248.) The defendants contended the felony-murder rule did not apply becausethe killing took place after the robbery had been committed. (id. at p. 250.) In rejecting that argument, the court noted a court in a sister state with a similar felony-murder statute had held that “where the enterprise is one continuousact including carrying away of property, a murder committed by oneofthe defendants in flight 800 feet distant from the place of robbery in order to avoid apprehension is murder in the first degree.” (/d. p. 252.) The court noted the existence of burglary cases holding the crimeis complete upon entry, but concluded such a rule “was adopted to make punishmentofthis class of crime more certain. It was not intendedto relieve the wrongdoer from any . . . consequences ofhis act by placinga limitation uponthe res gestae whichis unreasonable or unnatural.” (People v. Boss, supra, 210 Cal. at pp. 252-253.) Courtsin sister states similar felony-murderstatutes have held the rule applies to a killing committed during the res gestae of the felony. In addressing its felony-murderrule, the Kansas Supreme Court held “[t]he felony-murder rule applies when the victim’s death occurs within the res gestae of the underlying felony. [Citation.] Res gestae has been defined as those acts done before, during,or after the happening ofthe principal occurrence whenthoseacts are so closely connected with the principal occurrence as to form,in reality, a part of the occurrence. [{Citation.]” (State v. Jackson (Kan. 2005) 124 P.3d 460, 463; see also Bellcourtv. State (Minn. 1986) 390 N.W.2d 269, 274 [res gestae requires killing and felony be part of one ~ continuous transaction]; Parker v. State (Fla. 1994) 641 So.2d 369, 376 [felony-murder 21 eeerule applies in “‘the absence of some definitive break in the chain of circumstances beginning with the felony and ending with the killing’”’].) | Language used by the courts may haveled to confusion regarding the proper application of the two related, but distinct doctrines: “[BJecause flight following a felony has also been considered as part of the sametransaction (People v. Fuller (1978) 86 Cal-App.3d 618, 623, quoting People v. Salas (1972) 7 Cal.3d 812, 822), it has generally been held that a felony continues for purposes of the felony-murder rule ‘until the criminal has reached a place of temporary safety.” (People v. Bigelow (1984) 37 Cal.3d 731, 753.)” (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) In People v. Boss, supra, 210 Cal. 245, where the court spoke of one continuousact, the court also stated the robbery had not been completed because the defendants had “not wontheir way even momentarily to a place of temporary safety.” (id. at p. 250.) Even after Cavitt, the Supreme Court has used “temporary safety” language in connection with the felony- murder rule. “A robbery is not complete until the perpetrator reaches a place of temporary safety [citation] ....” (People v. Young (2005) 34 Cal.4th 1149, 1177,fn. omitted.) | However,as stated above, the temporary safety doctrine doesnot define felony-murderliability. (Cavitt, supra, 33 Cal.4th at p. 208.) The Cavitt court foundthat limiting the felony-murderrule to only those killings that occur prior to the felon reaching a place oftemporary safety would lead to absurd and unintended results. (Jd. at pp. 199-200.) Reconciling Cavitt with cases that have discussed temporary safety as a component of the felony-murder tule, leadsusto the following conclusion: for purposes of the felony-murderrule, a robbery or burglary continues, at a minimum, until the . perpetrator reaches a place oftemporary safety. That is to say a killing, even an . . accidental killing, committed while the perpetrator is in flight and prior to reaching a _ place of temporary safety, may befairly said to be part of one continuous transaction with 22 the underlying felony. But reaching a place of temporary safety does not, in andofitself, terminate felony-murderliability so long as the felony and the killing are part of one continuoustransaction. The defense’s requested instruction, to the extent it would be understood by the jurors as setting the point at which felony-murderliability terminates — which undoubtedly was the very reason it was requested — is an incorrect statement of the law and wasproperly refused by the trial court. (Cavitt, supra,.33 Cal.4th at p. 208.) Defendant concedesthetrial court did not otherwise have a sua sponte duty to clarify the meaning of the term “continuous transaction.” (/d. at pp. 203-204.) C. Sufficiency ofthe Evidence Defendant contends the evidence does not support his conviction for first degree murder underthe felony-murderrule because (1) the evidence wasinsufficient to prove he committed the burglary, and (2) the evidence did not prove the burglary and the death were part of one continuous course of conduct. We disagree. 1. Standard ofReview £0666Whenthe sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whetherit contains substantial evidence — i.e., evidence that is credible and ofsolid value — from which rationaltrier of fact could have found the defendant guilty beyond a reasonable doubt.” [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “On appeal, we must view the evidencein the light most favorable to the People and must presume in support of the judgment the existenceof every factthetrier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Perez (2010) 50 Cal.4th 222, 229.) Reversal for insufficient evidence “is unwarranted unless it appears 23 ‘that upon no hypothesis whateveris there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) 2. The Burglary “Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. [Citations.] Whetheror not the particular burglary was dangerous to humanlife is of no legal import. [Citation.]” (People v. Fuller (1978) 86 Cal.App.3d 618, 623.) Although defendant wasnot charged with burglary, his murder conviction is based upon the felony-murder rule andthe felony that triggered the rule in this case was a burglary. Defendant argues that other than the fact he was in possession of property stolen during the burglary, there is little other evidence “to support the element of entry with the intent to steal.” However, as we pointed out above in discussing the instruction on the inference permissible from possession ofrecently stolen property,little more is needed to support a conviction. Here there was substantial corroborating evidence. Defendant workedat a construction site near the site where the items were located before the burglary. His cell phone records show he wasin the area at the time the merchandise was delivered to the residence and again aroundthe time of the burglary. The night the appliances were stolen, he called Trivich and told her he “got somereally big things for the kitchen.” There wasalso evidence from which an inference could be drawn that he was in a hurry to get away with the stolen items in that he did not take the time to secure them on his truck, even though he hadties in the truck. Additionally, defendantdid not have license plates on his truck that night. The plates were inside the passenger compartment. A jury could reasonably infer defendant made an attempt to.conceal identification of his truck by driving without the plates on his truck. Plus, he testified he “needed the stuff for the house to be built in Palm Springs.” The evidence was more than _ 24 sufficient to support the jury’s determination the loot in defendant’s truck was from a burglary he committed.* 3. Continuous Transaction The burglary took place in Riverside County. The death occurred in Orange County on the 91 Freeway, about 60 miles from the burglary. The incidentthat claimed Piquette’s life was caused by stolen stove falling from the back of defendant’s truck into the lanes oftraffic. At the time of Piquette’s death, the burglary had yet to be discovered. In support of his argument that the evidence does not demonstrate the death and the burglary were part of one continuoustransaction,he asserts that (1) at 1:00 a.m. he told Trivich he had acquired large kitchen appliances and the cell phone records indicate he wastraveling west to east (toward Paim Springs) at the time; (2) the death occurred four hours later, when defendant was travelling in the opposite direction, away from Palm Springs; and (3) defendant had reached a place of temporary safety and lingered there before getting on the 91 Freeway andheading back to Long Beach. He contends these facts demonstrate he (1) already hadthe loot whenhe spoke with Trivich four hours before Piquette’s death; (2) he then drove to Palm Springs with the loot; and, (3) and remained in Palm Springs for some time before bringing the loot back toward Long Beach andarriving in Orange County where the collision occurred. He argues that as a result, there is no evidence to support a conclusion the “the death occurred during efforts to escape the burglary orthat the accidentresulted from an attempt to conceal the * Defendant argues evidence that “merely raises a strong suspicion ofthe -defendant’s guilt is not sufficient to support a conviction.” That is true enough, but the cases he relies upon are inapposite. In reversing the conviction in People v. Briggs (1967) 255 Cal.App.2d 497, the court pointed out the importance ofthe fact that “[njothing from the burglary . . . was foundin the possession of defendant.” (Id.atp. 501.) Andin People v. Rascon (1954) 128 Cal.App.2d 118, the court noted that there wasno evidence whetheranyofthe stolen property had been found. (/d.at p. 122.) Defendant, on the other hand, possessed all the loot from the burglary. -25 property which was openly on display in the bed of the pickup truck.” “In light of the deferential standard of review that applies to this sufficiency of evidence claim, we mustreject his interpretation of the evidence.” (People v. Smith (2005) 37 Cal.4th 733, 744.) The jury could have reasonably concluded defendantleft his residence in Long Beachintending to drive to Menifee to steal the appliances andthat he madethe telephonecall to Trivich for gas money because he would need gasto drive the appliances from Long Beach, where he would get the money from Trivich,to the project in Palm Springs. The cell phone records demonstrate he was driving west to east at the time of the telephone calls. That fact, however, does not mean he was headed to Palm Springs. Menifee is south of the 91 Freeway, off of Interstate 215. Driving from Long Beach, defendant would have taken the 91 Freewayeast to Interstate 215 south. The July 7, 4:30 a.m. cell phone record show his phone was pinging cell phone tower between Interstate 215 and the 91 Freeway. The jury could have concluded he wasonhis way back from Menifee at that time and rejected defendant’s testimony that he went to Palm Springs that morning, just as it rejected his testimony that he bought the stolen property at a Home Depotand did not commit the burglary. Defendant, in an apparent rush to flee the scene of theburglary, loaded up his pickup truck with the loot and left the tailgate down. He did not tie down the refrigerator, stove, and other appliances although he hadties in the truck. He then fled ~ the scene and while he was on his way back to Long Beachto unloadthe loot, the stove fell off the backofhis truck and Piquette died as a result. The homicide occurred while defendant was in immediate flight from the burglary to the location where he would unload the loot. The burglary and the homicide were part of a continuoustransaction. “Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgmentofthe Legislature, he is no longer entitledto such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.” [Citation.]” (People v. Farley, supra, 46 Cal.4th at p. 1121.) 26 Here, the act that caused the homicide — thefailure to tie down the load of stolen loot — occurred at the scene of the burglary, not 60 miles later when part of the unsecured load fell off the back of defendant’s truck as he drove to where he could unload andhide the loot. Accordingly, we find sufficient evidence to support the murder conviction. D. Due Process Defendant argues that use of the felony-murderrule on the facts of this case denied him due process of law and rendered his trial fundamentally unfair. He argues that because he was not escaping or being pursued by anyoneatthe time ofthe killing, the felony-murder rule should not apply and the only conduct being deterred by application of the rule “wasa lack of care in securing the load in the bed ofthe truck.” Having found the evidence supports the conviction, we find no due process violation. As stated above, the purpose of the felony-murderrule is.to prevent accidental or negligent killings in the perpetration of certain felonies, including burglary, by holding felons strictly responsible for killings them commit. “‘The Legislature has said in effect that this deterrent purpose outweighs the normallegislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatmentof the person accordingly. Once a person perpetratesor attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicialcalibration, but will be deemedguilty of first degree murder for any homicide committed in the course thereof.’ [Citation.] Policy concemsregarding the inclusion of burglary in the first degree felony-murder statute remain within the Legislature’s domain, and do not authorizethis court to limit the plain language of the ‘ statute.” (People v. Farley, supra, 46 Cal.4th at p. 1121.) . This is not a case where the homicide occurred because defendant committed some minortraffic violation 60 miles from the location where he ‘hadearlier 27 committed a burglary and which only coincidentally connected the homicide and burglary together. Piquette’s death was caused by defendant’s negligent act committed while he was actively engaged in committing the burglary.’ Had he usedthe ties he had in the truck and/or closed the tailgate on his truck, rather than leaving the scene in a rush to avoid detection, the homicide would not have occurred. To that end, the purpose of the felony-murder rule — to deter accidental or negligent killings is met and application of the felony-murderrule did not deny defendant due process. E. Cruel and Unusual Punishment Defendant’s last argument is that his punishmentconstitutes a violation of the state and federal constitutional prohibitions upon cruel and unusual punishment. The Attomey General counters defendant waived this argumentbyfailing toraise the issue in the trial court. The Eighth Amendmentto the United States Constitution declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishmentsinflicted.” The cruel and unusual punishment clause is made applicable to the states through the due process clause of the Fourteenth Amendment (Robinson v. State ofCalifornia (1962) 370 U.S. 660, 666-667) and “to sentences for terms of years.” (Lockyer v. Andrade (2003) 538 U.S. 63, 72.) “Embodiedin the Constitution’s ban on cruel and unusual punishmentis the ‘precept ofjustice that punishmentfor a crime should be graduated and proportionedto [the] offense.’ [Citation.]” (Graham v. Florida (2010) __ U.S. _, [130 S.Ct. 2011, 2021].) The high court has held that “three factors may be relevant to a determination of whether a sentence is so disproportionate thatit ° Burglaries, may be more appropriate. Considering the amountofitems stolen and loadedinto his truck, including a refrigerator, stove, fixtures, and the kitchen sink, defendant would have had to have made multiple entries into the house,all with the intentto steal. . 28 violates the Eighth Amendment: ‘(i) the gravity of the offense and the harshnessof 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 (2003) 538 U.S. 11, 22.) In connection with the Eighth Amendment argument, defendant argues only that his sentence is grossly disproportionate with his offense as to be prohibited. We do not find a sentence of 25 years to life for a first degree murder under the felony-murder rule to be grossly disproportionate under the Eight Amendment. Article I, section 17, of the California Constitution proscribes “{c]ruel or unusual punishment.” A prison sentence runs afoulof article I, section17,if it 1s “so disproportionate to the crimefor whichit is inflicted that itshocks the conscience and offends fundamental notions of human dignity.” (Un re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In his brief, defendant points out two of the techniques courts use in deciding whether or not a punishment complies with the requirements set forth in Lynch. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Courts have examined the nature of the offense and/orthe nature of the offender with particular regard to the degree of danger both present to society and compared the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction. (bid.) “[C]ourts mustalso view ‘the nature of the offender’ in the concrete rather than the abstract: although the Legislature can define the offense in general terms, each offenderis necessarily an individual. Our opinion in Lynch, for example, concludes by observing that the punishment in question not only fails to fit the crime, ‘it does notfit the criminal.’ (8 Cal.3d at p. 437.) 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 29 age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) In Dillon, the defendant was convicted of first degree felony-murder, and the court found the punishmentfor first degree murder to be cruel and unusual. (People v. Dillon, supra, 34 Cal.3d at pp. 450, 489.) But Dillon involved a 17-year-old high eonschool student who functioned “‘like a much youngerchild,’” and “‘pulled the trigger so many times because [he] was so scared.’” (/d. at pp. 451, 483.) Not so in the instant matter where defendantis an adult who, from the totality of circumstancesin the record before us, appears to have carefully planned his felony. Plus, his significant criminal record indicates he poses a continuing andserious threat to public safety. The probation report prepared by the Orange County Probation Department is almost one-inch thick. It showsthis is not a case of a troubled youth who went temporarily off course and led an exemplary life until the instant crime. Defendant was born in 1976. A petition alleging that when he was 11 years old, a girl teased him and he “produced a knife and stabbed her leg,” was sustained. The report continues that when he was 13, “a man apprehended the defendantafter he attemptedto steal a bicycle. The incident was reported to the police and officers searched the defendant. He had a bank card that was.taken during a residential burglary the previous day. Healso violated his probation by failing to report as directed and by staying away from home overnight without permission.” Also when he was 13, a petition alleging burglary of three residences was sustained. Includedin the loot taken was a gun and ammunition. ‘When defendant was 14 years old, two petitions were sustained. In one, he violated probation. The other was another residential burglary during which another gun and ammunition werestolen. ; Anotherpetition was sustained when defendant was 15. The report states he “threw his mother on the ground, straddled and attempted to choke her. He also 30 punchedholes in the walls of their home, threatened to ‘bash’ his mother’s head with a baseball bat and held a knife near her face while movingit in a stabbing motion.” Still while he was 15 years old, another petition was sustained. The report reads: “Accordingto the police report, the defendant and a companion approached a man who wasparking his car. The defendant held a .12-gauge shotgun against the man’s head and told himto leave the car. He and his companion forced the maninto the car trunk, and then drove the car for a mile before releasing the man. The car was discovered approximately two hours later and it was crashed into a curb with the engine running. Police found the defendant and three companions in a van. The defendant had shotgun shells in his possession, and the gun waslocated in a nearby trash can.” While he wasstill 15, defendant was sentenced to 33 years and eight monthsin the California Youth Authority. The report states “the defendantentered a woman’s residence while she bathed. He struck her face, knocked her on the floor and placed a pillow over her head. Hetore off her panties, and then threatenedto kill her if she looked at him. He unsuccessfully attempted intercourse, asked for her purse and pretendedto leave her residence. He returned a few minutes Jater, raped and threatened to kill her again. The victim required 100 stitches and plastic surgery to treat her facial — injuries.” The police reported that defendant admitted he raped the woman, andthat he stated he was “angry and wanted to hurt someone.’ . Defendant was released from CYA several months prior to his 25th birthday and sent to a halfway house where he remained for 15 months. At age 26, he was convicted of violating Penal Code section 290 when he movedand did notregister as a Sex offender. | "When defendant was 28, he was convicted of violating Vehicle Code section 231 52, subdivisions (a) and (b), driving under the influence. He was convicted of | the same thing when he was 29 andservedtimeinjail. With regard to that incident, the report reads: “Accordingto the police report, officers were dispatched to the scene of a 31 hit-and-run collision. Dispatch advised that a white pickup truck struck some bushes near the guard shack at the Crystal Cove Promenade andthe driver was last seen running in a westbound direction. The driver was described as being very intoxicated.” A few weeks later, defendant was arrested again for driving under the influence while traveling from Laguna Beach to Palm Springs. The Department of Motor Vehicles records show defendant’s bail was forfeited in 2002. He hadhisjail sentences suspended twice the same year. In 2004 and 2005, he wasjailed again. His driver’s license was revoked in 2004, 2005, and suspended again “effective April 27, 2006 for DUI or Drugs.” The probation report states: “There were two accidents reflected on his driving record where he was declared the party found most at fault.” Records from the Orange Countyjail show defendant had a “major violation for mutual combat.” The prosecutor’s report to the probation department describes defendantas “a truly dangerous individual.” He noted that defendant was “only able to remain free of new law violations for less than 18 months when he willfully failed to register as a sex offender pursuant to Penal Codesection 290. The violation for failure to register takes on a more ominous significance when coupled with the allegations from an acquaintance from Long Beach whoindicated that [defendant] put something into her drink during a social night out with friends in a bar and had subsequently raped her.” When the court sentenced defendant, the judge stated: “In relation to the sentencing issue, the court would note that the pages ofthe sentencing report are chilling in terms of your record. I recognize that .. . your father was in state prison. You’re not unique to this court in terms of defendants who’ve had a parent in state prison. [{] It’s clear to this court, you’re an extremely dangerousindividual.” In viewing defendantin the concrete, rather than in the abstract, we find no merit in defendant’s argument and concludethat in this case, the punishmentfits the crime and the defendant. He wasnot subjected to cruel nor unusual punishment. 32 I DISPOSITION The judgmentis affirmed. MOORE,ACTINGP.J. WE CONCUR: FYBEL,J. IKOLA,J. 33 DECLARATION OF SERVICE BY MAIL I, SHARON M.JONES,declare that I am over 18 years of age, and not a party to the within cause; my business address is P. O. Box 1663, Ventura, California 93002. I served a copy of the attached APPELLANT’S PETITION FOR REVIEWonthe following by placing the same in an envelope addressed as follows: Office of the Attorney General Clerk of the Court of Appeal P. O. Box 85266 Fourth Appellate District San Diego, CA 92186-5266 Division Three P. O. Box 22055 Appellate Defenders, Inc. Santa Ana, CA 92702 555 W. BeechSt., Suite 300 San Diego, CA 92101 Office of the District Attorney 401 Civic Center Dr. West Santa Ana CA 92701 Superior Court Clerk 700 Civic Center Dr. West Santa Ana, CA 92701-4079 ‘Cole AllenWilkins G27938 P. O. Box 5002 Calipatria, CA 92233-5002 | Joseph T.-Vodnoy, Esq. 316 W. SecondSt., Suite 1200 Los Angeles, CA 90012 Each said envelope was then, on February 16, 2011, sealed and deposited in the United States mail at Ventura, California, with postage thereon fully prepaid. I declare, under penalty ofperjury underthe laws ofthe State of California, that the foregoing is true and correct. Executed on February 16, 2011, at Ventura, California.