People v. Garcia

7 Cal.App.5th 941

213 Cal.Rptr.3d 217

The PEOPLE, Plaintiff and Respondent,

v.Andrew Edward GARCIA, Defendant and Appellant.

E059452

Court of Appeal, Fourth District, Division 2, California.

Filed January 24, 2017

Christopher A. Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

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 Penal Code section 12022.7¹ is unauthorized and should be stayed. This reduces his sentence to 32 years to life. Defendant also contends his overall sentence constitutes cruel and unusual punishment because the sentencing court did not comply with the requirements in Miller v. Alabama (2012) 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller ) and People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 (Caballero ) that it consider his youth and consequent reduced culpability and impose a sentence reflecting these considerations. While we recognize that considerations of defendant's youth did not, and by statute could not, play a major part in determining his sentence, the sentence passes constitutional muster because he "shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing" pursuant to section 3051. We affirm, with directions that the trial court determine whether defendant was afforded an adequate opportunity to make a record that complies with the requirements set forth in People v. Franklin (2016) 63 Cal.4th 261, 283–284, 202 Cal.Rptr.3d 496, 370 P.3d 1053.

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 truck, the male lifted up his shirt, pulled a gun out of his waistband and pointed it at her. The male told her to give him her purse. When Ms. Mendiola tried to close the truck door, the male told the female to hold it open.

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 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 Welfare and Institutions Code, section 707, subdivision (d)(2)(B), because he was at least 14 years old and personally used a firearm during the commission or attempted commission of a felony.

On July 15, 2011, the jury found defendant guilty as charged of attempted first degree murder (§§ 664 & 187, subd. (a)) and robbery (§ 211). The jury found true allegations as to the attempted murder that defendant personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a) ). The court ordered the Probation Department to interview defendant and prepare a report for use at sentencing.

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 the 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 ten 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 sending to jail for his whole life." Defendant expressed reluctance to pay restitution to the victim, saying "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."

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 section 654.

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 Welfare and Institutions Code section 1732, which prohibits CYA commitments for certain serious crimes where the sentence exceeds 25 years. The court then commented, "While it would be appropriate and correct for Mr. Garcia to be housed in an age-appropriate facility, committing him to the juvenile detention does not appear to be an option that the court has." In the course of imposing the 35-years-to-life sentence the court at several points correctly described its lack of statutory authority to use personal information about defendant to...