(Super. Ct. No. 08F04720)
The opinion of the court was delivered by: Hull , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the early morning hours of June 7, 2008, 17-year-old Frank Abella (defendant) and an acquaintance, James Washington, killed a mentally and physically handicapped man as he sat outside a 7-Eleven store sipping coffee. Tried separately as an adult, defendant was convicted of murder (Pen. Code, § 187, subd. (a); further undesignated section references are to the Penal Code), robbery (§ 211), and torture (§ 206). The jury also found defendant used a deadly weapon in connection with the murder and torture (§ 12022, subd. (b)(1)) and the murder occurred during the commission of the robbery (§ 190.2, subd. (a)(17)(A)). Defendant was sentenced on the murder under section 190.5, subdivision (b), to life without the possibility of parole (LWOP), while sentence on the other offenses was stayed with the exception of a one-year enhancement.
After sentence was imposed in this matter, the United States Supreme Court issued its decision in Miller v. Alabama (2012) ___ U.S. ___ [183 L.Ed.2d 407] (Miller), holding that a mandatory LWOP sentence for a minor who commits murder amounts to cruel and unusual punishment.
Defendant appeals, contending: (1) there is insufficient evidence to support the robbery conviction or the finding that the killing occurred during the commission of a robbery; (2) there is insufficient evidence to support the torture conviction; and (3) the LWOP sentence amounts to cruel and unusual punishment in light of defendant's age, personal characteristics, and limited participation in the murder, and under Miller.
We reject defendant's first two contentions. On the third, we conclude the LWOP sentence is not disproportional to the offense or the offender and any possible error by the trial court in applying a presumption for LWOP under section 190.5, subdivision (b), was harmless.
During the early morning hours of June 7, 2008, defendant and Washington were hanging out together at an apartment complex in Rancho Cordova where defendant's mother lived. At the time, Washington was dating defendant's sister, E.G, who was also present. Defendant was several weeks shy of his 18th birthday.
At approximately 2:40 a.m., defendant and Washington walked to a nearby 7-Eleven store. The events that occurred thereafter were captured in large part on surveillance cameras mounted at the 7-Eleven and at an adjacent check-cashing store.
At approximately 2:50 a.m., defendant and Washington left the 7-Eleven and approached 50-year-old William Deer, who was sitting on a curb outside the check-cashing store drinking coffee he had just purchased at the 7-Eleven. Deer was both mentally and physically handicapped due to a motorcycle accident more than 20 years earlier.
Earlier that evening, Deer's mother had dropped him off at a bus stop in Sacramento so he could visit friends in Rancho Cordova. At the time, Deer wore a fanny pack around his waist in which he carried various personal items, including a cell phone charger, a toothbrush, cigarettes, and money. He also carried with him a cell phone. Deer was wearing the fanny pack in the 7-Eleven approximately 30 minutes before he was approached by defendant and Washington.
What transpired during defendant's initial encounter with Deer is not altogether clear. However, what is clear is that, at some point, defendant and Washington beat, kicked and stomped on Deer and then ran from the scene.
Approximately 30 minutes later, Washington returned to the area with E.G. By that time, Washington had changed his shirt. They approached Deer, who was still lying where defendant and Washington left him. E.G. could see that Deer was hurt but he was still alive. Washington and E.G. departed.
Seven minutes later, defendant and Washington returned to where they had left Deer. Less than a minute later, they again ran from the scene.
Defendant and Washington returned a third time approximately 30 minutes later, this time with a BB gun. They shot Deer 19 times in the face and abdomen and then fled the scene.
Police were eventually dispatched to the 7-Eleven and found Deer still alive. They did not find a fanny pack or cell phone in the area; nor did they find any identification for the victim. Deer was taken to the hospital, where he later died. The cause of death was determined to be multiple blunt force head injuries plus multiple BB pellet injuries.
Five days later, defendant and Washington were arrested. They were charged with murder, robbery and torture and were tried separately. Defendant was ultimately ...