People v. De Jesús Nuñez

• Decision Date: 20 July 2011
• Docket Number: No. G042873.,G042873.
• Citation: 11 Cal. Daily Op. Serv. 5685,125 Cal.Rptr.3d 616,195 Cal.App.4th 414
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio DE JESÚS NUÑEZ, Defendant and Appellant.

125 Cal.Rptr.3d 616

11 Cal. Daily Op. Serv. 5685

2011 Daily Journal D.A.R. 6678Review GrantedPreviously published at: 195 Cal.App.4th 414

The PEOPLE, Plaintiff and Respondent,

v.Antonio DE JESÚS NUÑEZ, Defendant and Appellant.

No. G042873.

Court of Appeal, Fourth District, Division 3, California.

May 10, 2011.

Review Granted July 20, 2011.

Background: Juvenile defendant was convicted following jury trial in the Superior Court, Orange County, No. 01ZF0021,William R. Froeberg, J., of kidnapping for ransom and was sentenced to life in prison without parole (LWOP). Defendant appealed, and the Court of Appeal, 2004 WL 2943644,Ikola, J., affirmed. Defendant filed petition for habeas corpus, alleging sentence was unconstitutional. The Court of Appeal, 173 Cal.App.4th 709, 93 Cal.Rptr.3d 242, granted the petition. The trial court at resentencing imposed five consecutive indeterminate life terms for the kidnapping and other non-homicide offenses, plus five consecutive 20–year enhancements for gun use, which resulted in the possibility of parole after 175 years in prison. Defendant appealed.

Holdings: The Court of Appeal, Aronson, J., held that:

(1) sentence which precluded any possibility of parole for 175 years constituted cruel and unusual punishment, and

(2) imposition of consecutive sentences for defendant's primary convictions constituted cruel and unusual punishment.

Reversed with directions.

Equal Justice Initiative, Bryan A. Stevenson, Aaryn M. Urell; and Jack M. Earley, Irvine, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristine Gutierrez and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARONSON, J.

In an earlier habeas petition in this matter, we concluded imposing a sentence of life in prison without the possibility of parole (LWOP) on a 14–year–old defendant convicted of aggravated kidnapping violated the Eighth Amendment and Article I, section 17 of the California Constitution. (In re Nuñez (2009) 173 Cal.App.4th 709, 729–730, 93 Cal.Rptr.3d 242 (Nuñez ) [noting “perverse distinction” in sentencing scheme providing for LWOP for juveniles under age 16 who commit aggravated kidnapping, but 25 years to life if they murdered their victims with special circumstances].) Accordingly, we directed the trial court to conduct a new sentencing hearing for Nuñez consistent with our opinion. The trial court at resentencing imposed five consecutive indeterminate life terms for Nuñez's kidnapping and other nonhomicide offenses, plus five consecutive 20–year enhancements for his gun use. By not imposing an LWOP term, the trial court technically granted Nuñez the possibility of parole—albeit after 175 years.

Here, we explain again that juveniles who commit nonhomicide offenses do not share identical culpability with adult offenders who receive LWOP sentences for the same offenses. ( Nuñez, supra, 173 Cal.App.4th at p. 726, 93 Cal.Rptr.3d 242 [“Age ... matters” and “Youth is generallyrelevant to culpability”].) The United States Supreme Court recently determined the immature and potentially malleable nature of juveniles precludes a judgment at the outset that a nonhomicide juvenile offender will never be fit to reenter society. ( Graham v. Florida (2010) ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825( Graham ).) Graham invalidated a de facto sentence of life without the possibility of parole as a sentencing option for juveniles who do not kill. ( Id. at p. 2030.) As a practical matter, the consecutive life sentences the trial court imposed here denied Nuñez any possibility of receiving a parole hearing. We perceive no sound basis to distinguish Graham's reasoning where a term of years beyond the juvenile's life expectancy is tantamount to an LWOP term.

In reaching this conclusion, we agree with People v. Mendez (2010) 188 Cal.App.4th 47, 114 Cal.Rptr.3d 870( Mendez ) [84–year sentence for 16 year old's nonhomicide offenses violates Eighth Amendment], and we disagree with People v. Ramirez (2011) 193 Cal.App.4th 613, 123 Cal.Rptr.3d 155( Ramirez ), which upheld a minimum 120–year prison sentence for a juvenile convicted of three attempted homicides.¹ We part company with Ramirez because a term of years—no less than an actual LWOP sentence—violates constitutional standards when it predetermines juvenile nonhomicide offenders are irredeemable. We disagree with Ramirez that a sentence for a term of years exceeding the life expectancy of a juvenile, but without the LWOP label, passes constitutional muster based on a theoretical, but illusory parole date. Consequently, we reverse Nuñez's sentence and remand for another sentencing hearing consistent with this opinion.

IFACTUAL AND PROCEDURAL BACKGROUND

Nuñez, at age 14 and in a period of less than 36 hours in April 2001, committed several serious and violent offenses that posed such a grave danger to others “it is fortuitous ... no one died or was injured as a result of [his] conduct.” ( Nuñez, supra, 173 Cal.App.4th at p. 726, 93 Cal.Rptr.3d 242.) We detailed these kidnapping and four attempted murder offenses in our prior opinion. ( Id. at pp. 716–719, 93 Cal.Rptr.3d 242.) In summary, Nuñez and at least one much older compatriot armed themselves with an AK–47 and other guns, surprised a two-vehicle convoy of illegal immigrants, surrounded and fired their weapons at one of the vehicles as it sped away, and kidnapped the driver of the other vehicle, Delfino Moreno. Nuñez fired a handgun at the departing van, held the gun to Moreno's head while he and a partner forced Moreno into a waiting vehicle, and kept a gun pointed at Moreno while holding him hostage overnight.

The next day, the kidnappers' ransom demands went awry and, in a lengthy chase along Long Beach surface streets and Southern California freeways, Nuñez fired the AK–47 from the front passenger seat in two volleys, discharging three to six shots and then eight to 10 shots at officers pursuing in several vehicles, including a marked car with its overhead lights and siren activated. The chase ended with Nuñez's vehicle exiting the freeway and crashing to a halt, where he was apprehended after fleeing on foot. Investigators later found bullet holes in the front hood, the right door frame, the right side-view mirror, the roof, the front push bar, and the overhead lights of the pursuing officers' vehicles, and inside one police car in the rifle rack between the driver's and passenger's seats. One shot had struck within a foot of one officer's head and another within four to six inches of a different officer. Moreno had been handcuffed and sitting in the back seat of Nuñez's vehicle during the chase, and one of Nuñez's gunshots blew out the back window above Moreno's head.

Nuñez testified Moreno hatched the alleged kidnapping as a ruse to extort a ransom from his smuggling operation cohorts. Nuñez claimed he was not part of the initial abduction, but met Moreno that night at a party, where Nuñez accepted Moreno's invitation to join the scheme. During the ensuing chase, Nuñez fired his weapon the first time at two unmarked vans because he was “scared ... that they're following us” and the second time because he feared the pursuers, who he believed were “narcos” in the smuggling underworld, were “gonna try and do something to us.” Moreno had ordered him to fire. The initial loud report of his gun caused a ringing in his ears, the violent recoil of the weapon stunned him and blurred his eyesight, and the shattered rear window also obstructed his vision. He claimed he did not hear the police sirens or see any police cars until just before his vehicle crashed.

During deliberations, the jury sent a note asking whether the kidnapping charge applied if Nuñez was absent during the abduction, but after the trial court cited the relevant instructions, the jury convicted Nuñez of kidnapping for ransom, four counts of attempted murder, evading police, and street terrorism, and found gang and firearm enhancements true on each count.

The trial court imposed an LWOP term on the aggravated kidnapping conviction and lengthy sentences on the other counts, but Nuñez did not raise a constitutional challenge in his initial appeal. We affirmed his conviction in an unpublished opinion. (People v. Nunez (Dec. 21, 2004, G032462, 2004 WL 2943644) [nonpub. opn.].) New counsel subsequently filed a habeas petition on Nuñez's behalf in the California Supreme Court, which issued an order to show cause in this court on the question whether imposing an LWOP term on the kidnapping count violated the Eighth Amendment and article I, section 17 of the California Constitution.

Nuñez's unrebutted habeas showing established he responded positively to juvenile camp staff in an earlier commitment for a burglary offense and that, at the time of the present offenses, he still suffered posttraumatic stress disorder from being shot on his bicycle a year and a half earlier—when he witnessed his brother's slaying by a gangmember. The perpetrator shot Nuñez's 14–year–old brother Jose in the head and killed him when Jose ran to Nuñez's aid after Nuñez was shot. A defense expert opined in a habeas declaration that “ ‘Nuñez's mental functioning and behavior was diminished beyond that typical of 14–year–old children by mental illness, namely post-traumatic stress disorder and major depression, as well as adverse developmental factors including early alcohol and drug use, neglect and abuse, and possible cognitive defects.’ ” ( Nuñez, supra, 173 Cal.App.4th at p. 722, 93 Cal.Rptr.3d 242, first italics added.)

Following remittitur after our decision in Nuñez, the trial court conducted a new sentencing hearing. The trial court struck the LWOP sentence on the kidnapping count, and imposed an indeterminate life sentence instead, plus a consecutive 20–year term on a firearm enhancement (...