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People v. Jordan

California Court of Appeals, Fourth District, First Division

March 16, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
SHAQUILLE KASIYA JORDAN et al., Defendants and Appellants.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of San Diego County, No. SCD234048 Kerry Wells, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Shaquille Kasiya Jordan.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Seandell Lee Jones.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant Rashon Jay Abernathy.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IRION, J.

Based on a robbery and killing that occurred on May 11, 2011, when each of the defendants was 17 years old, Rashon Jay Abernathy, Seandell Lee Dupree Jones and Shaquille Kasiya Jordan (collectively, defendants) were found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189);[1] two counts of robbery (§ 211); shooting at an occupied motor vehicle (§ 246); and unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). Based on a different incident on May 5, 2011, the jury also found Abernathy guilty of an additional count of robbery (§ 211). The jury made true findings that Abernathy personally used a firearm during the robberies, the murder and the shooting at an occupied vehicle. (§ 12022.53, subds. (b), (d).)

The trial court sentenced Jones and Jordan each to a prison term of 25 years to life and sentenced Abernathy to a prison term of 50 years to life.

On appeal, all three defendants contend that (1) the trial court prejudicially erred in failing to instruct that, for the purposes of the felony-murder rule, the jury must find that the target felony (robbery) ended at the point defendants

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reached a place of temporary safety, known as "the escape rule"; (2) the sentences imposed by the trial court are unconstitutional under either the federal or state Constitution because they constitute cruel and unusual punishment; and (3) at sentencing, the trial court incorrectly calculated defendants' presentence custody credits. Jones and Abernathy further contend insufficient evidence supports their convictions for unlawfully taking or driving a vehicle, and Jones contends the abstract of judgment does not accurately reflect that his five-year sentence for shooting at an occupied vehicle in count 4 was stayed by the trial court pursuant to section 654.

We conclude that (1) although the trial court erred in failing to instruct with the escape rule for felony murder, the error was not prejudicial; (2) sufficient evidence supports Abernathy's and Jones's convictions for unlawfully taking or driving a vehicle; (3) there is no merit to defendants' contention that their sentences constitute cruel and unusual punishment; (4) Abernathy's and Jordan's judgments should be modified to award an additional day of presentence custody credit; and (5) a clerical error in Jones's abstract of judgment must be corrected to reflect that the sentence on count 4 is stayed pursuant to section 654. Accordingly, we modify the judgment as to Abernathy and Jordan to award an additional day of presentence custody credit, and we order that the abstract of judgment be corrected as to Jones to accurately reflect that his sentence on count 4 is stayed. In all other respects, the judgments are affirmed.

I

FACTUAL AND PROCEDURAL BACKGROUND

In May 2011, Abernathy placed an advertisement on Craigslist claiming that he had a MacBook Pro computer to sell for $900. After Abernathy communicated with a potential buyer, Erick Castillo, by exchanging text messages, Abernathy met with Castillo at a recreation center on May 5, 2011. Abernathy brought along a friend for the transaction, but the other two defendants were not involved. When Castillo took out $600 in cash to pay for the computer, Abernathy's friend grabbed the money and ran away with Abernathy. Castillo chased them, and as Castillo came closer, Abernathy pulled out a gun and pointed it at Castillo, stating "I'm going to fucking kill you." Castillo gave up the chase and called 911.

A second robbery occurred on May 11, 2011, and involved Abernathy, Jones and Jordan. Using the same Craigslist advertisement, Abernathy arranged to meet with 18-year-old Garrett Berki in front of a school around 9:15 p.m. Berki brought his girlfriend, Alejandra Faudoa, along in the car for the transaction. After waiting in front of the school for a few minutes, Berki

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got a call from Abernathy stating that the meeting place had changed to an apartment complex in the neighborhood. Berki drove to the new location, where Abernathy and Jones were waiting outside. Abernathy insisted that Berki show him the money before handing over the computer. During the discussion, Jones either showed Berki a gun or pointed it at him, stating that Abernathy would count the money. Berki handed over the money, and Abernathy demanded that Berki and Faudoa give him their cell phones. Abernathy and Jones then ran away through the apartment complex with a total of $640 and the two cell phones.

According to Abernathy, he got to the scene of the May 11 robbery after being picked up from home in a Honda driven by Jordan, in which Jones was a passenger. Jordan parked near the apartment complex and dropped off Abernathy and Jones so that they could commit the robbery. After the robbery Abernathy and Jones ran back to the Honda, and the three defendants decided to go to a nearby house where Jones's and Jordan's girlfriends lived. According to Abernathy, they stayed at the house for a few minutes but then were asked to leave, so they started driving toward a shopping mall.

Meanwhile, after being robbed, Berki and Faudoa sat in their car for a few minutes before deciding that Berki would drive to the police station to report the robbery. When Berki had driven one or two blocks from the scene of the robbery, he noticed Jordan, Jones and Abernathy in the Honda driving toward him. Berki and Faudoa decided to follow the Honda so that they could get the license plate number. Berki followed the Honda in and out of a parking lot and then through the streets and onto a freeway. Berki was driving close behind the Honda to try to see the license plate, and he was also driving in a manner that he hoped might attract the attention of the police, such as pulling directly in front of the Honda and putting on his brakes.

The Honda exited the freeway while Berki's car was in front of it, but Berki managed to drive over the freeway shoulder and down the off ramp, following the Honda into a residential neighborhood. Both cars ended up on a dead-end street. Berki stopped his car at an angle before the end of the cul-de-sac while the Honda turned around at the end of the cul-de-sac and drove up next to Berki's car. Abernathy pointed a gun out of a backseat window of the Honda and fired one shot into Berki's car. Berki was shot in the left chest and was pronounced dead at the hospital a short time later.

Defendants drove a few blocks away, crashed the Honda and fled into the backyards of the residential neighborhood, where police located them by use of infrared helicopter cameras and K-9 units. After being arrested, Jones, Jordan and Abernathy were taken to the police station, where they made numerous statements connecting themselves to the crimes in a recorded jail

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cell conversation. Further, it was discovered that the Honda in which defendants were riding had been stolen a few hours before the second robbery, either on the night of May 10 or the morning of May 11, 2011.

Based on the events of May 11, 2011, Abernathy, Jones and Jordan were each charged with first degree murder (§§ 187, subd. (a), 189), two counts of robbery (§ 211), shooting at an occupied motor vehicle (§ 246); and unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). Based on the May 5, 2011 robbery, Abernathy was charged with an additional count of robbery (§ 211). The information also included gang allegations for each count as to each defendant (§ 186.22, subd. (b)(1)), and allegations as to each count (except the count for unlawfully taking or driving a vehicle) that a principal personally used a firearm in committing the crimes (§ 12022.53, subds. (b), (d), (e)(1)).

When Abernathy testified at trial, he admitted to committing both robberies and to shooting Berki, but he contended that the shooting was an accident caused by an inadvertent discharge of the gun. Abernathy also testified that he did not know that Jordan was driving a stolen vehicle until Jordan informed him of that fact when he got back into the Honda after the second robbery. Jordan and Jones did not testify at trial.

The jury found defendants guilty on all counts but did not make a true finding on the gang allegations and found the firearm allegations to be true only as to Abernathy.

The trial court sentenced Jones and Jordan to prison for 25 years to life and sentenced Abernathy to prison for 50 years to life.

II

DISCUSSION

A., B.[*]

C. Defendants' Challenges to Their Sentences as Cruel and Unusual Punishment

As we have described, each of the defendants was 17 years old when committing the crimes at issue. Based on that fact, defendants contend that the trial court violated the prohibition on cruel and unusual punishment in the Eighth Amendment to the United States Constitution by sentencing them to

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indeterminate life terms in prison (50 years to life for Abernathy and 25 years to life for Jones and Jordan). Further, Jones and Jordan contend that because they were not shooters during the murder, and in light of their age at the time of the crime, their sentences are disproportionate to their crimes and therefore constitute cruel and unusual punishment in violation of the federal and state Constitutions.

We apply a de novo standard of review to these issues. (People v. Em (2009) 171 Cal.App.4th 964, 971 [90 Cal.Rptr.3d 264] (Em) [" 'Whether a punishment is cruel or unusual is a question of law for the appellate court....' "].)

1. Abernathy's Sentence

As the trial court described at sentencing, based on the crimes for which Abernathy was convicted, the longest sentence that the trial court could impose on Abernathy (if it selected midterm sentences for the determinate terms), was 83 years to life. Further, based on a mandatory 25-year-to-life sentence for the first degree murder conviction (§ 190, subd. (a)), plus a mandatory 25-year-to-life sentence for the firearm enhancement (§ 12022.53, subd. (d)), the shortest sentence that the trial court could impose on Abernathy was 50 years to life, even if all the sentences for the other counts were run concurrently or stayed. Abernathy argued to the trial court that a sentence of 50 years to life would be a mandatory de facto life sentence without parole, given his actuarial life expectancy of 64.6 years as a Black male born in 1993, in that he would not be eligible for release from prison (taking into account his credits) until the age of 67 at the earliest.

The trial court acknowledged that given Abernathy's life expectancy, "an argument could be made" that the required minimum sentence of 50 years to life was a de facto life sentence without parole. The trial court therefore proceeded to apply the approach required by the controlling United States Supreme Court case law, Miller v. Alabama (2012) 567 U.S. ___[183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), which explains how the Eighth Amendment's prohibition on cruel and unusual punishment applies to a defendant who, like Abernathy, committed a homicide before the age of 18. Applying the approach required by Miller, the trial court concluded that based on the circumstances of Abernathy's case, including the age and maturity level at which Abernathy committed the murder, Abernathy's family and social background, and the details of the crime, a sentence of 50 years to life did not constitute cruel and unusual punishment, and it accordingly imposed that sentence.[8]

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a. Applicable Case Law

We begin our analysis with a focus on the United States Supreme Court's case law applying the Eighth Amendment to the sentencing of juveniles.

The applicable line of cases begins with Roper v. Simmons (2005) 543 U.S. 551, 575 [161 L.Ed.2d 1, 125 S.Ct. 1183] (Roper), which held that it is cruel and unusual punishment to impose the death penalty on a defendant who committed a capital crime when under the age of 18.

Next, Graham v. Florida (2010) 560 U.S. 48, 74 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), decided that it is cruel and unusual punishment to sentence a defendant who committed a crime as a juvenile to life in prison without parole for a nonhomicide offense. Under Graham, "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime" but must "give defendants... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Id. at p. 75.)

Finally, Miller considered the issue of whether the Eighth Amendment proscribes a mandatory life sentence without parole for a defendant convicted of a homicide for a killing that occurred prior to the defendant's 18th birthday. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. 2455].) Miller disapproved mandatory life sentences without parole for juvenile homicide offenders, holding that a sentencing court must be given the discretion to consider the juvenile offender's age and youthful characteristics before deciding whether to impose a sentence of life without parole for a homicide conviction. (Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2475].)

In the course of explaining why a mandatory life without parole sentence is unconstitutional when applied to a juvenile homicide offender, Miller set forth the factors that a sentencing court must consider before imposing such a sentence: "Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him - and from which he cannot usually extricate himself - no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth - for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory punishment disregards

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the possibility of rehabilitation even when the circumstances most suggest it." (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].) As Miller explained, "given all we have said in Roper, Graham, and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between 'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.] Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at p.___[132 S.Ct. at p. 2469].)

Our Supreme Court recently examined Miller in People v. Gutierrez (2014) 58 Cal.4th 1354 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez), stating that "[u]nder Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court's discretion is properly exercised in accordance with Miller."[9] (58 Cal.4th at p. 1379.) As Gutierrez explained, in a homicide case involving a juvenile offender "the trial court must consider all relevant evidence bearing on the 'distinctive attributes of youth' discussed in Miller and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' [Citation.] To be sure, not every factor will necessarily be relevant in every case.... But Miller 'require[s] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' " (Id. at p. 1390.)

One more recent decision by the California Supreme Court is pertinent here. In People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero), our Supreme Court considered the constitutionality of a sentence of 110 years to life imposed on a defendant who was a juvenile when he committed the nonhomicide crimes that gave rise to his

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sentence. Caballero concluded that for the purpose of a constitutional analysis, the sentence should be treated as a de facto life sentence without parole since there would be no opportunity for the defendant to be released from prison during his lifetime.[10] (55 Cal.4th at p. 268.)

b. Abernathy's Sentence Is Constitutional Under Miller

With the above case law in mind, we turn to Abernathy's challenge to his sentence. Abernathy contends that given his life expectancy, the sentence of 50 years to life - which is the minimum sentence statutorily authorized for his crimes - is a de facto mandatory life sentence without parole. Abernathy accordingly contends that Miller applies to his sentence, as it does to all juvenile homicide offenders who are subject to mandatory life sentences without parole. According to Abernathy, the trial court was thus required at sentencing to exercise its discretion to consider whether, given the factors set forth in Miller, it should impose a sentence of less than 50 years to life.

In evaluating this argument, the first issue is whether Miller applies to sentences that are not literally sentences of life without parole, but that - because of the length of time before the defendant will have an opportunity for release - are de facto life sentences without parole. As we have explained, that issue is currently before our Supreme Court. (See fn. 10, ante.) As the issue is unsettled, we take the same approach as the trial court and assume for the sake our analysis, without deciding, that Miller applies to de facto life sentences without parole. We will also assume, without deciding, that given Abernathy's life expectancy, a minimum statutorily authorized sentence of 50 years to life is a mandatory de facto life sentence, and that therefore, as Abernathy contends, Miller applies here.

Having assumed for the purposes of our analysis that Miller applies, the next issue is whether the trial court complied with Miller in how it conducted Abernathy's sentencing. As we have noted, Miller requires that when faced with a sentencing scheme that requires a mandatory life sentence without parole for a juvenile homicide offender, the sentencing court must nevertheless exercise its discretion to determine whether it should impose the mandatory sentence in light of factors relating to the defendant's youth. Miller directs the sentencing court to take into account the defendant's

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“immaturity, impetuosity, and failure to appreciate risks and consequences"; the defendant's "family and home environment"; "the circumstances of the homicide offense, including the extent of [the defendant's] participation in the conduct and the way familial and peer pressures may have affected him"; the possibility that "incompetencies associated with youth" resulted in the defendant being charged with a greater offense than if he had been a more sophisticated participant in the criminal justice system; and "the possibility of rehabilitation." (Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2468].) As our Supreme Court explained in Gutierrez, "not every factor will necessarily be relevant in every case, " but the sentencing court must " 'take into account how children are different.' " (Gutierrez, supra, 58 Cal.4th at p. 1390.)

Based on the trial court's extensive comments at sentencing, we conclude it complied with Miller's requirements in sentencing Abernathy. As an initial matter, we note that the trial court expressly explained at the outset of its discussion that it was assuming for the sake of its sentencing decision that Miller applied, and it would accordingly conduct the analysis required by Miller. As the trial court explained, "I believe that it is appropriate for this court, in analyzing the cruel and unusual aspect of this sentence, to look at the individual factors of this defendant and this crime and make that analysis at this point." Further, the trial court prefaced its analysis by accurately summarizing the main point of Miller. "What I take from Miller... is that youth matters in making a sentencing decision. It must be allowed to factor into the equation of a sentence even in a homicide." The trial court then went on to analyze whether, based on the considerations in Miller, it should impose a sentence of less than 50 years to life. Specifically, the trial court pointed out the following factors: (1) Abernathy's age at the time of the murder was 17½, making him "not particularly young, " and thus more mature than many other juvenile offenders; (2) the nature of Abernathy's crimes was not childlike or youthful, in that the crimes were sophisticated and carried out as part of a scheme planned by Abernathy; (3) Abernathy had already committed the same type of armed robbery days earlier, showing that he understood the nature of what he was doing and did not merely act impulsively; (4) as Abernathy described during his testimony, he had a positive emotional reaction to intimidating and terrifying Castillo in the first robbery, which revealed something "very negative" about Abernathy's character; (5) Abernathy's motive for the crimes was not "youthful, " and instead was "pure greed" not based on any financial need; (6) Abernathy's family and social background was not a mitigating factor impacting his decision to commit a crime as a juvenile, as he was not particularly disadvantaged or abused, was raised in a supportive and financially stable family, had friends who were not criminals, and had no substance abuse or mental health issues; (7) at the age of 17½ and at his maturity level as shown by the evidence, Abernathy was fully capable of understanding the risk of threatening people with loaded

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guns; and (8) according to Abernathy's comments to his codefendants in the jail cell on the night of the murder, he felt no remorse. Based on all of these considerations, the trial court concluded, "I do believe that there are some circumstances where 50 to life would be so disproportionate to the conduct involved or given the mitigating circumstances of a juvenile involved that it would be unconstitutional..., but this is not one of them."

In light of the fact that the trial court undertook a substantive and meaningful analysis of whether, in light of Abernathy's age at the time of the murder and other related factors, it should impose a sentence of less than 50 years to life, we conclude that the trial court fully complied with the requirements of Miller. Therefore, there is no merit to Abernathy's contention that the trial court sentenced him to 50 years to life in prison in violation of the Eighth Amendment's prohibition on cruel and unusual punishment.[11]

2. Jones's and Jordan's Sentences

The trial court sentenced both Jones and Jordan to prison for 25 years to life. As they did in the trial court, Jordan and Jones contend that a sentence of 25 years to life constitutes cruel and unusual punishment under both the federal and state Constitutions.

a. Federal Constitutional Argument Based on Graham and Miller

Jordan's and Jones's main federal constitutional argument is based on the same Eighth Amendment case law we have discussed above, as set forth in Roper, Graham and Miller. Jordan and Jones contend that the standards in case law governing life sentences without parole for juvenile offenders

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established in Graham and Miller should be extended to cases, such as theirs, in which they (1) are "exposed" to a life sentence, and (2) neither "killed nor intended to kill." As we will explain, we reject this argument.

The first problem with Jones and Jordan's argument, is that neither Jones nor Jordan was sentenced to a life term without parole.[12] As they correctly describe the situation, they have merely been "exposed" to the possibility of a lifetime in prison because the parole board may decide not to release them after they become eligible for release in 25 years.[13] Our Supreme Court was very clear in Graham and Miller that the Eighth Amendment issues it was discussing arose only in the context of juvenile offenders who were sentenced to life in prison without the possibility of parole. As Graham explained, "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime[, ]" but "must... give defendants... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Graham, supra, 560 U.S. at p. 75, italics added.) Like Graham, Miller also applies only to "lifetime incarceration without possibility of parole." (Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2475], italics added.)

Because Jones and Jordan were each sentenced to a term of 25 years to life, it is possible that they will be paroled from prison while they are in their 40s, far before they are at the end of their life expectancies. Accordingly, Jones and Jordan have not been sentenced to de facto prison terms of life without parole, and neither Graham nor Miller applies. Under similar circumstances, our colleagues in People v. Perez (2013) 214 Cal.App.4th 49 [154 Cal.Rptr.3d 114] (Perez) rejected the defendant's argument that a term of 30 years to life, for a nonhomicide crime committed at the age of 16, was cruel and unusual punishment under the Eighth Amendment. As Perez explained, because the defendant was eligible for release from prison at age 47, "by no stretch of the imagination can [the] case be called a 'functional' or 'de facto' [life without parole sentence], and therefore neither Miller, Graham, nor Caballero apply." (214 Cal.App.4th at p. 58.)

We further reject Jordan and Jones's contention that their sentences should be determined to be cruel and unusual punishment under Miller and Graham because they are juvenile offenders who purportedly "neither killed nor

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intended to kill." As the basis for this argument, Jordan and Jones point out that although they were convicted of first degree murder, neither of them shot at Berki and there was no evidence that they knew Abernathy was going to do so.

We need not decide whether, for the purposes of an Eighth Amendment analysis, a juvenile offender convicted of first degree murder under a felony-murder theory but who did not personally kill anyone should be treated as having committed a homicide crime or a nonhomicide crime.[14] Under either approach, Jordan's and Jones's sentences do not violate the Eighth Amendment as clarified in Miller and Graham. If Jones and Jordan committed a homicide crime, then Miller applies, and the Eighth Amendment bars a mandatory term of life in prison without parole. (Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2475].) If Jones and Jordan committed a nonhomicide crime, then Graham and Caballero apply, and the Eighth Amendment bars a de facto sentence of life in prison without parole (Graham, supra, 560 U.S. at p. 74; Caballero, supra, 55 Cal.4th at p. 268). But, as we have explained, Jones and Jordan did not receive either a mandatory or a discretionary life sentence without the possibility of parole. Instead, they are eligible for release from prison when they are in their 40s. Therefore, the sentences do not constitute cruel and unusual punishment regardless of whether Jones and Jordan committed a homicide crime or a nonhomicide crime by participating in a felony murder, and regardless of whether Graham or Miller applies.

b. Disproportionate Sentences

As a second federal constitutional argument, Jordan and Jones contend that, regardless of the holdings in Miller and Graham, their sentences are unconstitutional under the Eighth Amendment because they offend principles of proportionality that are applicable to all defendants, not just juvenile offenders.

As our Supreme Court has explained, "the Eighth Amendment contains a 'narrow proportionality principle, ' that 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme

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sentences that are "grossly disproportionate" to the crime.' " (Graham, supra, 560 U.S. at pp. 59-60, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 997, 1000-1001 [115 L.Ed.2d 836, 111 S.Ct. 2680] (cone. opn. of Kennedy, J.).) In "determining whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, " "[a] court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold comparison... leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate, ' the sentence is cruel and unusual." (Graham, supra, 560 U.S. at p. 60.) "The gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77 [155 L.Ed.2d 144, 123 S.Ct. 1166].) Jones and Jordan argue that because they were convicted under a felony-murder theory and did not directly participate in killing Berki, a comparison of the gravity of their offenses with the severity of their sentences leads to the conclusion that a prison sentence of 25 years to life is grossly disproportionate to their crimes.

In a similar argument, Jones and Jordan also rely on case law developed under the California Constitution prohibiting disproportionate sentences. Article I, section 17 of the California Constitution prohibits the infliction of "[c]ruel or unusual punishment." A sentence will not be allowed to stand under the California Constitution "if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085 [26 Cal.Rptr.3d 365], quoting In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921] (Lynch) and citing People v. Dillon (1983) 34 Cal.3d 441, 478 [194 Cal.Rptr. 390, 668 P.2d 697] (Dillon).)

Under California law, a defendant attacking a sentence as cruel or unusual "must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and the defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions." (In re Nunez (2009) 173 Cal.App.4th 709, 725 [93 Cal.Rptr.3d 242].) The defendant "need not establish all three factors-one may be sufficient [citation], but the [defendant] nevertheless must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability [citation]. As a result, '[f]indings of disproportionality have occurred with exquisite rarity in the case law.' " (Ibid.) Although California case law sets forth three factors to consider in conducting a proportionality analysis, "[t]he sole test remains... whether the punishment 'shocks the conscience and offends fundamental notions of human dignity.' " (Dillon,

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supra, 34 Cal.3d at p. 487, fn. 38.) "Successful challenges based on the traditional Lynch-Dillon line are extremely rare." (Perez, supra, 214 Cal.App.4th at p. 60.)

Jones and Jordan do not argue that a prison sentence of 25 years to life for first degree murder is disproportionate to (1) the punishment for more serious offenses, or (2) the punishment for first degree murder in other jurisdictions. Instead, Jordan and Jones limit their argument to the first factor described in the case law, i.e., whether their sentence is grossly disproportionate to the nature of the offense and their personal backgrounds. As this issue overlaps with the central issue posed by the federal proportionality analysis, i.e., whether the sentence is grossly disproportionate to the gravity of the offense (Graham, supra, 560 U.S. at p. 60), we consider both the federal and state constitutional proportionality challenges together. In conducting our analysis, "[w]e examine both the seriousness of the crime in the abstract and 'the totality of the circumstances surrounding the commission of the offense..., including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' " (Em, supra, 171 Cal.App.4th at p. 972.)

Turning to the nature of the crime, felony murder committed during a robbery is a serious and dangerous crime. As our Supreme Court has observed, "when it is viewed in the abstract robbery-murder presents a very high level of such danger, second only to deliberate and premeditated murder with malice aforethought." (Dillon, supra, 34 Cal.3d at p. 479.) Jones and Jordan argue, however, that in the unique circumstances of this case, a 25-year-to-life sentence for felony murder is disproportionate to the gravity of the crime because they were not the shooters, they had minimal or nonexistent criminal history prior to this case, [15] and they were juveniles when they committed the instant offenses. As we will explain, we reject these arguments, and conclude that a sentence of 25 years to life was not grossly disproportionate to Jones's and Jordan's crime of felony murder.

First, although Jones and Jordan did not personally shoot Berki, they were nevertheless convicted of felony murder based on their willing participation in an armed robbery. "Life sentences pass constitutional muster for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill." (Em, supra, 171 Cal.App.4th at pp. 972-973.) Indeed, in Em, the court rejected a similar disproportionality

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argument, affirming a sentence of 50 years to life for a defendant convicted of felony murder for a murder that occurred when he was 15 years old. The defendant in Em was not the shooter, but he was a participant in an armed robbery, during which his companion shot the person they were trying to rob. (Id. at pp. 967-968.) Em explained that "[although defendant did not shoot the gun himself, the robbery and murder took place with his culpable involvement. Defendant's participation in the crime was demonstrably not 'passive....' " (Id. at p. 975.) As here, the facts in Em supported the conclusion that the "[d]efendant committed this crime, not because he was in the wrong place at the wrong time, but because he has a complete disregard for the rule of law and lack of respect for human life." (Id. at p. 976.)

Similar to Em, other cases have rejected arguments by juvenile offenders that a sentence for first degree murder violates the proportionality principle of the California Constitution even though the defendant was not the person who committed the killing, when the defendant knowingly participated in a serious crime that led to the murder. (People v. Gonzales (2001) 87 Cal.App.4th 1, 7, 16 [104 Cal.Rptr.2d 247] [rejecting a proportionality challenge to 50-year-to-life sentences imposed on juvenile offenders for first degree murder, when the defendants were not shooters but participated in an armed attack]; People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 [67 Cal.Rptr.2d 126] [affirming a 26-year-to-life sentence for a 14-year-old gang member convicted of felony murder occurring when his companion shot someone during a robbery].)

Next, a focus on Jones's and Jordan's personal characteristics also results in the conclusion that the sentence is not grossly disproportionate. As case law directs, we inquire "whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.)

As the trial court pointed out, both Jordan and Jones were culpable participants in the events leading up to the murder. Jones threatened Berki with a firearm during the robbery and demanded money. Jordan was the getaway driver in a car that he had stolen. Defendants' comments to each other in the jail cell after they were arrested showed no remorse and provided no indication that this was an exceptional circumstance where either Jordan or Jones unknowingly participated in, or were pressured to take part in, criminal activity. On the contrary, even though there was evidence at trial that Abernathy may not have been a gang member, it is undisputed that both Jordan and Jones were active members of criminal street gangs. In addition, Jones had a criminal history of escalating seriousness, which included taking part in a violent gang assault. Therefore, we do not perceive this as a

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situation where defendants' personal characteristics and role in the commission of the crimes make a sentence of 25 years to life in prison a grossly disproportionate punishment for the crime of first degree murder.

Jones and Jordan argue that this case is like Dillon, supra, 34 Cal.3d 441, in which our Supreme Court concluded that a juvenile offender convicted of felony murder should have his punishment reduced to the applicable sentence for second degree murder based on principles of proportionality under the California Constitution. (Dillon, at p. 489.) In Dillon, the court explained that the defendant was 17 years old during the crime and had shot the victim nine times in a panic during an unsophisticated attempt to steal from a marijuana farm. (Id. at p. 452.) Concluding that the indeterminate life term for first degree murder was a disproportionate sentence because of the defendant's immaturity and the nature of his crime, Dillon explained, "at the time of the events herein defendant was an unusually immature youth. He had had no prior trouble with the law, and... was not the prototype of a hardened criminal who poses a grave threat to society.... [W]ith hindsight his response might appear unreasonable; but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate." (Id. at p. 488.)

Because of the sophisticated nature of the robbery that Jordan and Jones participated in here, the absence of any evidence that they were particularly immature or that they failed to appreciate the risk of violence in committing an armed robbery, as well as the fact that Jordan and Jones were members of criminal street gangs, this is simply not a case like Dillon where the felony murder was the result of the actions of an immature youth who did not foresee the risks inherent in his behavior. As has long been acknowledged, "Dillon's application of a proportionality analysis to reduce a first degree felony-murder conviction must be viewed as representing an exception rather than a general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014 [204 Cal.Rptr. 271].)

We agree with the trial court that, unlike Dillon, this is not a case "that is so unusual and mitigating, either the crime or the defendants, that the statutory mandated sentence by the Legislature is unconstitutional." Therefore, we reject Jordan's and Jones's argument that their sentences are grossly disproportionate under either the federal or state Constitutions.

D., E.[*]

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DISPOSITION

As to Abernathy and Jordan, we direct the trial court to amend the abstract of judgment to award an additional day of presentence custody credit. As to Jones, we direct the trial court to amend the abstract of judgment to reflect that Jones's sentence on count 4 is stayed pursuant to section 654. The trial court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

Huffman, Acting P. J., and Haller, J., concurred.


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