People v. Martinez

• Decision Date: 29 November 1999
• Docket Number: No. B126166.,B126166.
• Citation: 76 Cal.App.4th 489,90 Cal.Rptr.2d 517
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan M. MARTINEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

90 Cal.Rptr.2d 517

76 Cal.App.4th 489

The PEOPLE, Plaintiff and Respondent, v. Juan M. MARTINEZ, Defendant and Appellant.

No. B126166.

Court of Appeal, Second District, Division 4.

November 29, 1999.

Certified for Partial Publication^*

Review Denied February 23, 2000.

Valerie G. Wass, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

A jury convicted appellant Juan M. Martinez of attempted murder and found pursuant to Penal Code section 12022.53, subdivision (d)¹ that appellant personally and intentionally discharged a firearm causing great bodily injury. The court sentenced appellant to a base term of 5 years for attempted murder plus an enhancement of 25 years to life as required by section 12022.53.

Angered at a store owner who forced appellant out of his store, appellant returned with a .22 caliber rifle and shot the owner, who suffered great bodily injury in the stomach. On appeal appellant contends the trial court erred in admitting certain evidence despite a pretrial discovery violation, the evidence is insufficient to show that appellant intended to kill, and imposition of the 25-year-to-life enhancement pursuant to section 12022.53 is cruel or unusual punishment. Finding no merit to these contentions, we affirm the judgment.

FACTS

The victim, Francisco Perez, owned a furniture store in partnership with Maria Navarette. Appellant had been Ms. Navarette's boyfriend for about eight months. Appellant had been in the store regularly because of her, and there had been problems with his breaking things. On the afternoon of February 22, 1998, appellant was in the store and Ms. Navarette asked appellant to leave. Appellant refused to leave. Mr. Perez also told appellant to leave, because it appeared appellant was assaulting Ms. Navarette. When appellant again refused to leave, Mr. Perez grabbed appellant by the shoulder and pushed him out the door.

Appellant said "bad words" to Mr. Perez and said he was going to come back and kill him. Appellant left and obtained a .22 caliber rifle which he loaded. About 30 to 45 minutes later, appellant returned to the store and entered, holding the rifle pointed in Mr. Perez's direction, and said he was going to kill him. Mr. Perez picked up a telephone from a desk in order to call 911, but appellant fired a shot which hit the desk phone and caused Mr. Perez to drop the receiver.

Mr. Perez then moved in a direction which put Ms. Navarette, who was seated at the desk, between appellant and him. Appellant told Ms. Navarette to move. Mr. Perez dove toward the floor, and appellant shot him. The bullet went through Mr. Perez's leg and entered his stomach. When Mr. Perez stood back up, appellant ran out of the store. Mr. Perez was hospitalized 13 days and had 3 surgeries as a result of the shooting.

Appellant was arrested at home and led police to the rifle, which he admitted shooting at Mr. Perez. Appellant told the police he was angry at Mr. Perez, with whom he had "problems" before, because Mr. Perez slapped him, embarrassed him in front of his girlfriend, and "treated him like a kid" in throwing him out of the store. Appellant told the police he obtained the rifle from an acquaintance after telling him he was going to shoot a person who disrespected him in front of his girlfriend. They loaded the gun, then appellant returned to the store to kill Mr. Perez. Appellant admitted he shot the telephone then shot Mr. Perez in the stomach. Appellant said he would have shot Mr. Perez more times if Ms. Navarette had not been in the way.

Appellant presented no defense testimony but his counsel cross-examined the prosecution witnesses as to whether appellant had threatened to "get" or "shoot" Mr. Perez as distinguished from "kill" him.

DISCOVERY^**

SUFFICIENCY OF EVIDENCE^***

CRUEL OR UNUSUAL PUNISHMENT

The trial court imposed a low term of 5 years for attempted murder (§§ 187, subd. (a), 664, subd. (a)) plus an enhancement of 25 years to life, pursuant to section 12022.53. Section 12022.53, also known as the "10-20-life" law, was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of designated felonies. The Legislature found "that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime." (Stats.1997, ch. 503, § 1.) Among the designated felonies is appellant's crime, attempted murder. (§ 12022.53, subds. (a)(1) [murder], (a)(18) ["[a]ny attempt to commit a crime listed in this subdivision"].)

The statute provides increasing prison terms (10 years, 20 years, and 25 years to life) for increasingly serious circumstances of firearm use. Under subdivision (b), if the defendant "personally used a firearm" (which can mean merely displaying an unloaded or inoperable firearm, People v. Masbruch (1996) 13 Cal.4th 1001, 1006-1007, 55 Cal.Rptr.2d 760, 920 P.2d 705), the mandatory additional consecutive punishment is 10 years. Under subdivision (c), if the defendant "intentionally and personally discharged a firearm," the mandatory additional consecutive punishment is 20 years. Under subdivision (d), applicable to appellant, if the defendant "intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice," the mandatory additional consecutive punishment is 25 years to life. The punishment is not subject to being stricken or reduced in the trial court's discretion. Subdivision (h) provides, "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."

Appellant contends that section 12022.53, either on its face or as applied to him, constitutes cruel or unusual punishment under either the United States or California Constitutions. (U.S. Const., Eighth Amend.; Cal. Const., art. I, § 17.)⁴ In Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, a majority of the court held that a state mandatory sentence of life without possibility of parole for possession of substantial amounts of cocaine did not constitute cruel and unusual punishment under the federal Constitution. Two justices were of the view that in cases not involving the death penalty, the Eighth Amendment provides for no judicial review whether the length of a legislatively mandated sentence is excessively disproportionate to the crime (id. at pp. 962-994, 111 S.Ct. 2680); the three concurring justices agreed that the length of a legislatively mandated sentence could be held unconstitutional, but only in cases of "extreme sentences that are `grossly disproportionate' to the crime.'" (Id. at pp. 997-1001, 111 S.Ct. 2680; see People v. Weddle (1991) 1 Cal.App.4th 1190, 1193-1195, 2 Cal.Rptr.2d 714 and accompanying footnotes.) Under the California Constitution, a sentence may be cruel or unusual 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." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921.) The main technique of analysis under California law is to consider the nature both of the offense and of the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.) The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant's individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697; People v. Weddle, supra, 1 Cal.App.4th at pp. 1197-1198 & fn. 8, 2 Cal.Rptr.2d 714.)

The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. (Harmelin v. Michigan, supra, 501 U.S. at p. 998, 111 S.Ct. 2680 (cone. op. of Kennedy, J.); Peopie v. Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. (People v. Weddle, supra, 1 Cal. App.4th at pp. 1196-1197, 2 Cal.Rptr.2d 714; People v. Mora (1995) 39 Cal.App.4th 607, 615-616, 46 Cal.Rptr.2d 99.) This is not such a case.

Appellant, focusing only on subdivision (d), contends "[t]he statute is constitutionally defective because it does not recognize significant gradations of culpability depending on the severity of the current offense, and does not take into consideration mitigating factors." This is not a fair description of the statute. Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies.⁵ The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25...