People v. GarciaPeople v. Garcia
THE PEOPLE, Plaintiff and Respondent, v. ANDREW EDWARD GARCIA, Defendant and Appellant.
Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
RAMIREZ, P. J.—Defendant is serving 35 years to life after a jury convicted him as an adult of attempted murder and other charges for robbing and shooting a woman in the face when he was 15 years old. In this appeal, defendant argues, the People concede, and we agree, that a three-year enhancement for great bodily harm under
FACTS AND PROCEDURE
At about 9:00 p.m. on January 27, 2011, Maria Mendiola went to one of the hair salons she owned, and at which she cut hair, to pick up the mail after closing. She saw a male and female, whom she described as “kids,” standing outside the salon hugging. Ms. Mendiola picked up her mail from the mailbox and noticed the two approaching her as she returned to her parked truck, got in and started the engine. As the two got closer, the male told Ms. Mendiola that he knew her, or that she knew him.2 As she got into her
The male repeatedly yelled at Ms. Mendiola to give him her money, her cell phone, and the keys to her truck. Defendant said “Get off the truck. Give me the keys. Give me your purse. Give me the keys. Get off, get off.” Ms. Mendiola testified at trial that “I just thought he was going to kill me.” When she told the male she did not have any money, he took her cell phone from her hand and kept yelling at her to get out of the truck. Ms. Mendiola told the male that she was not going to give him anything. He said, “I‘m going to shoot you. I‘m going to shoot you.” Ms. Mendiola said, “Well, shoot me.” The male then asked the female, “Do I shoot her?” And the female said, “Yes.” The male turned to Ms. Mendiola and shot her in the face, just as she threw her head back. Ms. Mendiola heard the shot as a loud noise. The bullet entered inside her mouth, struck her upper teeth, went through her cheek and lodged near her upper jaw. She testified at trial that the gunshot made a “big noise. But I didn‘t feel like—I didn‘t think he shot me ‘cause I was still, like, awake.”
The two youths fled on foot. Ms. Mendiola followed them in her truck for about three minutes until they ran behind a building. While driving, Ms. Mendiola had been using her hand to wipe from her mouth what she thought was a large amount of saliva. However, she stopped when she realized she was bleeding from inside her mouth and all over her clothes. Ms. Mendiola saw so much of her own blood that she thought she would pass out. She also felt that she had a broken tooth. Ms. Mendiola stopped a passing van and told the driver she had been shot. She pointed out the direction in which the two youths had run and asked the driver to call police. She then drove to meet her husband, who was supposed to be at the nearby home of an acquaintance. Her husband arrived about five minutes later. The people at the home called police and an ambulance. The ambulance took her to the emergency room. Doctors removed fragments of a small-caliber bullet from her cheek. Ms. Mendiola lost several teeth from her upper jaw. At the time of trial the pain in her cheek had become a permanent numbness and she was still experiencing pain in her teeth. She later identified defendant from a series of photographs as the male who shot her. Defendant‘s fingerprints were found on the driver‘s side door of Ms. Mendiola‘s truck, just under the mirror.
In a complaint filed February 16, 2011, and an information filed March 15, 2011, the People charged defendant as an adult under
In a telephone interview, defendant told the probation officer that he used marijuana daily, drank alcohol every other week, and occasionally used cocaine and Ecstasy. Defendant‘s parents were divorced when he was eight years old, after which they provided defendant with counseling. Defendant did not get along well with his mother, with whom he initially lived. He described their relationship as “on and off” because he did not like to follow her rules. Defendant wanted to go to parties but she would not let him because of his age. Defendant dated adult women, and he was “embarrassed” that his mother would insist he leave open his bedroom door when he brought them home. Defendant described his relationship with his father as always good because his father understood the “boy thing.” However, defendant had to leave his father‘s home at the request of father‘s previous girlfriend. Defendant then moved in with his grandmother, but moved back in with his father just prior to his arrest.
As to defendant‘s criminal history, he was twice arrested for drug possession and once returned home by police after he ran away. His single adjudicated offense was for arson, for lighting a tree on fire at a middle school, for which he received probation. In addition, since the attempted murder defendant had participated in three fights while in juvenile hall.
Regarding sentencing, defendant expressed the hope that he would receive a low sentence, such as 10 years, and wished to serve it in a fire camp. He mentioned several times that he wanted to finish the “dog program” at juvenile hall.
Defendant told the probation officer that “I still see myself not guilty, even though to everyone else I am guilty.” Defendant denied committing the offense and stated he did not think he should be in jail. He said that on the night of the offense he went out to eat with some friends, then went to his father‘s house and then his grandmother‘s house. Defendant was upset because he could no longer play football. He said he was mad at his girlfriend because her testimony had caused him to be incarcerated and to “have to deal with these politics.” Defendant talked about his family and said regarding the victim, Ms. Mendiola, “I feel like she took me away from my family.” He also stated “I‘m not mad but I think she should have thought who she was
On December 23, 2011, the trial court sentenced defendant to 35 years to life as follows: seven years to life for the attempted murder, plus a consecutive term of 25 years to life for the intentional discharge of a firearm enhancement, plus a consecutive term of three years for the great bodily injury enhancement. The court stayed the sentence for robbery pursuant to
Before imposing the sentence, the court heard supporting statements from defendant‘s mother and from two of his freshman-year special education teachers. The court also heard a request from defense counsel that defendant be sentenced to the California Youth Authority (CYA) in accordance with the positive amenability determination by the Department of Juvenile Justice. In response to this defense counsel request, the court cited to
This appeal followed.
DISCUSSION
1. The Three-year Enhancement Under Section 12022.7 Must Be Stayed
Defendant argues the trial court imposed an unauthorized sentence when it imposed a consecutive three-year enhancement to the attempted murder conviction under
2. Defendant‘s Non-life Sentence Is Not Cruel and Unusual—He Has a Reasonable Chance for Release Well Within His Expected Lifetime
Defendant argues the 32-year-to-life sentence violates his right to be free of cruel and unusual punishment guaranteed by the Eighth Amendment to the federal Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.“) and article I, section 17 of the California Constitution (“Cruel or unusual punishment may not be inflicted or excessive fines imposed.“).
Specifically, defendant argues that both the United States Supreme Court and the California Supreme Court have in recent years emphasized that juvenile offenders have special protection under the Eighth Amendment and are “less deserving of the most severe punishments” (Graham v. Florida (2010) 560 U.S. 48, 68 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham)) because they ” ‘cannot with reliability be classified among the worst offenders.’ [Citation]” (Ibid.). Defendant points to Roper v. Simmons (2005) 543 U.S. 551, 569 [161 L.Ed.2d 1, 125 S.Ct. 1183] (Roper) for its description of the three main reasons for this special protection and reduced culpability: (1) lack of maturity; (2) susceptibility to negative influences, including peer pressure; and (3) the fact that a youth‘s personality and character traits are still forming and are capable of change for the better. (Id. at pp. 569-570.)
We agree with the People that the cases upon which defendant relies involve sentences that are far harsher than his 32 years to life. The youthful defendant in Roper was sentenced to death. In both Graham and Miller the sentence was a life term without the possibility of parole. In Caballero, the term was 110 years to life, which the court found to be the functional equivalent of a life sentence without the possibility of parole. Each of these cases, which held that the challenged sentence was cruel and unusual when applied to a defendant charged as an adult who committed his or her crime while a minor, is relevant to the general discussion of the reasons for treating youthful offenders differently from adult offenders. However, none compels the result that defendant seeks here—a reduction of his sentence below the imposed 32 years to life. Here are the reasons why.
First, defendant‘s sentence is on its face neither an actual nor an effective life sentence without the possibility of parole. After 32 years, defendant will
Second, even for sentences that are actual or effective life sentences, which defendant‘s emphatically is not, the recently enacted
This analysis is consistent with the recent California Supreme Court decision in People v. Franklin, supra, 63 Cal.4th 261. In addition, the Franklin court recognized that, in order to fulfill the requirements of sections 3051 and 4801, the defendant must be “afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing” at the time of sentencing. (Franklin, at pp. 283-284).
3. Not Cruel or Unusual Under State Constitution
We also conclude that the 32-year-to-life sentence is not cruel or unusual under the California Constitution.
Whether a punishment is cruel or unusual in violation of the California Constitution under the legal principles set forth in Lynch and Dillon, “presents a question of law subject to independent review; it is ‘not a discretionary decision to which the appellate court must defer.’ [Citation.]” (People v. Felix (2003) 108 Cal.App.4th 994, 1000 [134 Cal.Rptr.2d 351] (Felix)). The reduction of a sentence based on the determination it is cruel or unusual under the California Constitution “is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.’ [Citation.]” (Felix, at p. 1000). Furthermore, such a reduction ” ‘must be viewed as representing an exception rather than
“‘Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” [Citation.]’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 569 [59 Cal.Rptr.3d 876]).
In Lynch, supra, 8 Cal.3d 410, the California Supreme Court identified three analytical techniques a court must use to determine whether a punishment is disproportionate to the crime: (1) the court considers the nature of the offense and the offender “with particular regard to the degree of danger both present to society“; (2) the punishment imposed with the punishments for more serious crimes in the same jurisdiction; and (3) the court compares the punishment imposed with punishments for the same crimes in different jurisdictions. (Id. at pp. 425-427; see Dillon, supra, 34 Cal.3d at pp. 479-482). A punishment need not be disproportionate under all three techniques to violate the California Constitution. (Dillon, at p. 487, fn. 38). In his briefing, defendant addresses only the nature of the offense and the offender.
In assessing proportionality, courts must examine “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ [Citation.]” (Dillon, supra, 34 Cal.3d at p. 479). Factors surrounding the nature of the offense include the defendant‘s motive, the way the crime was committed, the extent of the defendant‘s involvement, the manner in which the crime was committed, and the consequences of his acts. (Id. at p. 479; Felix, supra, 108 Cal.App.4th at p. 1000; People v. Wallace (2008) 44 Cal.4th 1032, 1099 [81 Cal.Rptr.3d 651, 189 P.3d 911]). Factors regarding the nature of the offender include his “age, prior criminality, personal characteristics, and state of mind.” (Dillon, at p. 479; see Felix, at p. 1000). “[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant‘s individual culpability.” (Dillon, at p. 480).
Here, the sentence was not cruel or unusual in light of the nature of the charged offense. Defendant shot the victim in the head at very close range.
In Felix, supra, 108 Cal.App.4th at page 1000, the defendant threatened but did not shoot the victim with a firearm to commit a carjacking. The defendant unsuccessfully argued that the imposition of the
Nor are we persuaded that the sentence is grossly disproportionate to defendant‘s individual culpability based on his personal characteristics. Here, defendant had turned 15 years old just 12 days before committing the offense, which could be a positive in defendant‘s favor. However, although defendant did not have a long history of criminal activity at that point, he showed serious signs of rebelliousness and unwillingness to abide by the law, or by rules at home. Defendant had already been on juvenile probation for arson, been arrested twice for drug possession, had been brought home by the police at age 14 after running away from home, and had begun using drugs at a young age. Defendant indicated his relationship with his mother was “on and off” because she would not let him go out to parties and established rules in her home about him having adult women over. More important in terms of culpability, the probation officer noted in the probation report that defendant showed no remorse, stressed how the shooting had impacted him and his family, and expressed anger at the victim rather than sorrow at the injury he had caused her. Regarding the victim, defendant told the probation officer, “I‘m not mad but I think she should have thought who she was sending to jail for his whole life.” Defendant was angry about the possibility of paying restitution to the victim, commenting “I would be especially mad. I heard that her family is a drug family, so them taking money from my family, I‘d be more than mad.” Defendant also blamed his girlfriend for testifying against him. Defendant‘s complete failure to take responsibility for having committed
Defendant does not contend his sentence is disproportionate to the punishments for more serious crimes in the same jurisdiction or to punishments for the same crimes in different jurisdictions, so we will not address those considerations in the Lynch analysis.
Notwithstanding defendant‘s youth, the fact remains he personally used a loaded firearm at close range to commit the attempted murder, and it is only by chance that he did not kill the victim. The total sentence of 32 years to life was not grossly disproportionate to defendant‘s crimes, regardless of his age. Defendant was the direct perpetrator; he had the intent to kill, for a fairly trivial reason; and he used a firearm. “Life sentences pass constitutional muster [even] for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill. [Citations.] . . . [T]he Legislature has determined that a significant increase in punishment is necessary and appropriate to protect citizens and deter violent crime. [Citations.]” (People v. Em (2009) 171 Cal.App.4th 964, 972–973 [90 Cal.Rptr.3d 264]). We cannot say the California Constitution compels the reduction of this sentence.
DISPOSITION
The judgment is modified to stay execution of the three-year enhancement imposed pursuant to
Miller, J., and Codrington, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied April 19, 2017, S240437.