Filed 6/15/15 P. v. Yim CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141404
v.
ROBERT D. YIM,                                                       (Alameda County
                                                                     Super. Ct. No. H52579)
         Defendant and Appellant.


         Robert D. Yim appeals from a judgment of conviction and sentence imposed after
a jury found him guilty of murder and multiple attempted murders, and found true certain
enhancement allegations. He contends (1) the prosecutor committed misconduct by
mentioning the victim’s family and loved ones in a question to a witness, (2) the court
deprived him of a constitutional right when it proceeded with sentencing despite his oral
request to represent himself, (3) the court erred in its imposition of full determinate terms
for two of the attempted murder convictions and corresponding enhancements, and
(4) his sentence constitutes cruel and unusual punishment. We will modify the sentence
as to the determinate terms for two of the attempted murder convictions and their related
enhancements, and affirm the judgment as so modified.

                               I. FACTS AND PROCEDURAL HISTORY
         An amended information charged Yim with one count of premeditated murder
(Pen. Code, § 187, subd. (a)—count 1)1 and three counts of premeditated attempted

1
         All statutory references hereafter are to the Penal Code.

                                                             1
murder (§§ 187, subd. (a), 664, subd. (a)—counts 2, 3, and 4). As to the murder count, it
was alleged that Yim personally and intentionally discharged a firearm and caused great
bodily injury or death (§ 12022.53, subd. (d)). As to the attempted murder counts, it was
alleged that he personally and intentionally discharged a firearm during the offenses
(§ 12022.53, subd. (c)). The matter proceeded to a jury trial.

       A. Evidence at Trial
       During the afternoon of May 3, 2010, Daveon Taylor was driving in Hayward
with three friends, including Samuel Nava III. On the way toward Nava’s home, they
saw Yim, a stranger to them, sitting on a park bench with a young woman (Veronica
Rodriguez). Yim stared at them with a mean expression on his face.
       Taylor stopped the car and asked Yim, “Is there a problem?” Yim walked toward
the car in an aggressive manner and said, “Yes, there is,” and repeatedly asked, “What
up, nigga?” At some point—either before or after Yim approached Taylor’s car—Yim
went to Rodriguez’s car and retrieved his gun.
       Afraid, Taylor quickly drove away. Concerned that Yim could follow them to
Nava’s house, Taylor headed instead for Union City, stopping at a red light in the left-
turn lane at the intersection of Mission Boulevard and Industrial Parkway. Meanwhile,
Yim and Rodriguez left the park in Rodriguez’s car and also headed toward Union City,
where Yim lived.
       At the stoplight at Industrial and Mission, Yim and Rodriguez were in the left-
turn lane two cars behind Taylor’s vehicle. Yim got out of the car. Unaware Yim was
there, Taylor made a U-turn and saw Yim on the center median. As he continued to
drive in Yim’s direction, Yim stepped into the street, pulled out his gun, and fired
several shots at Taylor’s car, shattering the front and rear windshields; one bullet struck
Nava in the back of the head and killed him.

       B. Jury Verdict
       The jury found Yim guilty of second degree murder with respect to victim Nava
(count 1). The jury also found Yim guilty of attempted murder as to the three other


                                               2
victims (counts 2 through 4), but found that the attempted murders were not committed
with premeditation. In addition, the jury found that the firearm discharge allegations
were true as to each count.

       C. Sentence
       As discussed at greater length post, on the day of sentencing Yim made an oral
request to represent himself for the purposes of pursuing a new trial motion and
sentencing. After accepting Yim’s new trial motion for filing, the court pronounced his
sentence.
       The court sentenced Yim to 127 years to life in state prison, as follows: for the
murder of Nava on count 1, 15 years to life for second degree murder and 25 years to
life for the firearm discharge enhancement (§ 12022.53, subd. (d)); plus, imposed
consecutively, on each of counts 2 through 4, a determinate term of 9 years for
attempted murder and a determinate term of 20 years for the firearm discharge
enhancement (§ 12022.53, subd. (c)).
       This appeal followed.

                                     II. DISCUSSION
       We address each of Yim’s contentions in turn.

       A. Prosecutorial Misconduct
       Yim contends the prosecutor committed misconduct by appealing to the
passions of the jury in his phrasing of a question.

              1. Facts
       At the end of the prosecutor’s direct examination of Rodriguez, the following
exchange occurred:
       “[PROSECUTOR]: Is what you told us today the truth as far as you best
remember it today?
       “[RODRIGUEZ]: Yes.
       “[PROSECUTOR]: And you see a courtroom full of people?
       “[RODRIGUEZ]: Yes.


                                              3
       “[PROSECUTOR]: At this point, that is the victim’s family and loved ones.
I would ask that you tell them who was the person responsible for killing their son
and loved one, Samuel Nava the III?” (Italics added.)
       “[DEFENSE COUNSEL]: I object to the form.
       “THE COURT: Sustained.
       “[DEFENSE COUNSEL]: I ask there be an admonishment. This is
ridiculous.
       “[PROSECUTOR]: No further questions.” Defense counsel then proceeded
with his cross-examination of the witness; the court did not respond to defense
counsel’s request to admonish the jury.

              2. Law
       A prosecutor’s conduct violates the Fourteenth Amendment to the United States
Constitution when it renders the trial fundamentally unfair—that is, it “infects the trial
with such unfairness as to make the conviction a denial of due process.” (People v.
Jackson (2014) 58 Cal.4th 724, 762 (Jackson).) Even if the conduct does not render the
trial fundamentally unfair, it may constitute prosecutorial misconduct under state law if it
involves the use of deceptive or reprehensible methods to attempt to persuade the court or
the jury. (Ibid.)
       Prosecutorial misconduct may include engaging in inflammatory rhetoric that
diverts the jury’s attention from its proper role or invites an irrational subjective
response. (People v. Redd (2010) 48 Cal.4th 691, 742.) More specifically, a prosecutor
may not appeal to sympathy for the victim and his family as a basis for finding guilt.
(People v. Vance (2010) 188 Cal.App.4th 1182, 1192-1193 (Vance).) Where the
misconduct claim is based on the prosecutor’s comments to the jury, “ ‘ “ ‘the question
is whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion. [Citation.]’ ” ’ ” (Jackson, supra,
58 Cal.4th at p. 762.)




                                               4
              3. Analysis
       While the prosecutor’s phrasing of his question was better suited for a television
drama than a court of law, it did not render the trial fundamentally unfair or involve the
use of deceptive or reprehensible methods to persuade the jury.
       In the first place, the prosecutor’s question was not a direct appeal for sympathy
for the deceased victim or his family. The prosecutor was basically asking Rodriguez,
“Who shot Mr. Nava?”—a relevant issue in the case. Although he asked Rodriguez to
tell this to Nava’s “family and loved ones” rather than to the jury, it could not have been
shocking or inflammatory for the jury to learn that the victim had loved ones or even that
they were in the courtroom. Moreover, the reporter’s transcript suggests that the context
of the question was the prosecutor’s chiding of Rodriguez for failing to tell the police
immediately after she learned that Yim had killed Nava, not stirring up sympathy for the
victim and his family. In this context, it is unlikely the jury was roused to passion out of
sympathy for Nava or his family—any more than it had already been by the admissible
testimony recounting Yim’s actions.
       In this regard, the prosecutor’s question was far different than the incident in
Vance, in which the prosecutor told the jury in closing argument to “walk in [the
victim’s] shoes” and relive what the victim experienced. (Vance, supra, 188 Cal.App.4th
at pp. 1193-1194.) It was also far different than the situations in the cases Yim cites, all
of which involve exhortations in closing argument rather than the phrasing of a single
question during an examination: United States v. Koon (9th Cir. 1994) 34 F.3d 1416,
1443-1446, revd. in part on other grounds sub nom. Koon v. United States (1996) 518
U.S. 81 [references in closing argument to the “horror and outrage” evoked “from Paris
to Tokyo” when defendants were acquitted by another jury]; People v. Stansbury (1993)
4 Cal.4th 1017, 1056-1057 (Stansbury) [closing argument urging jury to imagine victim’s
feelings and how she might have begged or cried]; People v. Pensinger (1991) 52 Cal.3d
1210, 1250 (Pensinger) [asking jury to imagine that the victim’s murder during the
commission of a sexual assault had been perpetrated on one of their own children];
People v. Simington (1993) 19 Cal.App.4th 1374, 1378-1379 (Simington) [asking jurors


                                              5
in closing argument to place themselves in the position of the victim of a knife assault];
People v. Talle (1952) 111 Cal.App.2d 650, 673-675 [attacking defense counsel and
witnesses, calling defendant a despicable beast, urging that he was guilty because he
refused to testify, making statements that were not supported by the evidence, and
asserting that both the prosecutor and God knew the defendant was guilty].)
       Furthermore, other circumstances greatly minimized any potential impact of the
prosecutor’s question. The prosecutor’s mention of the victim’s family and loved ones
was a brief and isolated incident in the trial. (People v. Medina (1995) 11 Cal.4th 694,
759-760 [no reasonable probability that prosecutor’s brief and isolated comment, urging
the jury to do justice for the victim, could have influenced jury’s guilt determination];
Stansbury, supra, 4 Cal.4th at p. 1057 [asking jury to imagine what the victim must
have been thinking was not prejudicial because it was a single reference in a lengthy
argument, and the jury deliberated for four days].) Since the court sustained defense
counsel’s objection, the jury could reasonably have understood that the question was
improper. (See Pensinger, supra, 52 Cal.3d at pp. 1250-1251.) And this was driven
home by defense counsel’s gratuitous comment, “This is ridiculous.” Moreover, the
court ultimately instructed the jury not to allow sympathy to influence its decision, and
to ignore any question to which the court had sustained an objection. We must presume
the jury followed those instructions.
       Under the circumstances, there was no reasonable likelihood that the jury
construed or applied the prosecutor’s question in an objectionable manner. Nor is it
reasonably probable that Yim would have obtained a different verdict in the absence of
the prosecutor’s question. (Simington, supra, 19 Cal.App.4th at p. 1379.)2


2
        Although the court sustained defense counsel’s objection, it did not admonish the
jury in response to counsel’s request. Yim’s opening brief in this appeal notes the
absence of the admonition, but does not contend the court’s failure to admonish
constituted error in itself. Respondent nonetheless addressed the issue in the
respondent’s brief, urging that Yim forfeited any such claim because he had not pressed
the court for the admonition after asking for it. Whether or not the claim is forfeited, the
absence of an admonition does not constitute prejudicial error under the circumstances,

                                              6
       B. Self-Representation
       Yim contends the court deprived him of his constitutional right to self-
representation under Faretta v. California (1975) 422 U.S. 806 (Faretta) because it
allowed him to file a new trial motion he had drafted, but then did not allow him to
argue it or represent himself at sentencing. He seeks a remand so he can litigate his
new trial motion and represent himself at a new sentencing hearing.
              1. Facts
       On the day of sentencing, Yim filed a written motion for substitution of counsel
under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the outset of the closed
Marsden proceeding, the court asked if Yim understood the nature and purpose of the
motion. Yim replied: “Yes. My wish was to go in pro per because I have a new trial
motion and [defense counsel] didn’t want to do it.” Later Yim stated: “I have a new
trial motion and I wish to present what I have on this. Just look at it at least.” The court
denied the Marsden motion, finding it was untimely and Yim had been adequately
represented by defense counsel. Yim told the court, “Pardon me, I wanted to go pro per,
I didn’t want to—” The court responded, “We’ll do that on the record.”
       Back on the record in open court, the following ensued:
       “THE COURT: Mr. Yim, you have indicated—I have denied your Marsden
motion. You have indicated you wanted to represent yourself; is that correct?
       “THE DEFENDANT: Yes.
       “THE COURT: What I am going to do is apparently you’ve written up your own
motion for a new trial and whatever; is that correct?
       “THE DEFENDANT: Yes, that’s correct.
       “THE COURT: And are you ready to submit it?
       “THE DEFENDANT: Yes.


particularly in light of the context of the prosecutor’s language, the court’s sustaining of
the objection, and the court’s instructions to the jury. There is no showing that an
admonition would have made any difference. That said, an admonition would have been
better practice, even though counsel did not press for it.

                                              7
       “THE COURT: Give it to the deputy. I’ll have Mr. Clerk file it for the record.
Record should reflect the Court has read and considered the probation reports, as well as
the attachments. I’m ready to proceed on with sentencing.”
       The court then stated that it agreed with the prosecutor’s sentencing
recommendation and asked the prosecutor if he had any witnesses to present. After
members of Nava’s family completed their statements, Yim addressed the court and
essentially claimed he was protecting himself when he shot at Taylor’s car. The court
then asked defense counsel if the matter was submitted, and counsel replied,
“Submitted.” No one mentioned the motion for new trial or the motion to proceed in
propria persona. The court then pronounced sentence.
       The reporter’s transcript does not show that the court expressly ruled on Yim’s
new trial motion or his oral Faretta motion. The clerk’s docket and minutes sheet states
that the motions were denied.

              2. Law
       A defendant has a constitutional right to proceed in propria persona upon a timely
request. (Faretta, supra, 422 U.S. at p. 835.) To invoke this constitutional right, the
defendant must assert it unequivocally. (People v. Jenkins (2000) 22 Cal.4th 900, 959
(Jenkins); People v. Skaggs (1996) 44 Cal.App.4th 1, 5 (Skaggs).) If a timely and
unequivocal motion has been made, the court “ ‘must permit a defendant to represent
himself upon ascertaining that he has voluntarily and intelligently elected to do so,
irrespective of how unwise such a choice might appear to be.’ ” (People v. Dent (2003)
30 Cal.4th 213, 217.)
       If a motion for self-representation is untimely, however, self-representation is not
a matter of right but subject to the court’s discretion. (Jenkins, supra, 22 Cal.4th at
p. 959; People v. Windham (1977) 19 Cal.3d 121, 129 (Windham).) In exercising this
discretion, the court “should consider factors such as ‘ “the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute counsel, the
reasons for the request, the length and stage of the proceedings, and the disruption or



                                              8
delay which might reasonably be expected to follow the granting of such a motion.” ’ ”
(Jenkins, at p. 959; People v. Clark (1992) 3 Cal.4th 41, 98-99 (Clark).)
         A motion for self-representation at trial must be brought a reasonable time before
trial, and is untimely if raised after the trial begins. (Jenkins, supra, 22 Cal.4th at p. 959;
Windham, supra, 19 Cal.3d at p. 129.) A motion for self-representation at sentencing,
however, may be timely if brought a reasonable time before sentencing. (People v.
Miller (2007) 153 Cal.App.4th 1015, 1023-1024 (Miller); accord People v. Doolin (2009)
45 Cal.4th 390, 455 & fn. 39 (Doolin) [request for self-representation made after penalty
phase verdict, on day of sentencing, after unsuccessful Marsden motion, was untimely
and subject to trial court’s discretion; Miller distinguished].)

                3. Analysis
         The threshold question is whether the court’s response to Yim’s Faretta motion
should be characterized as a failure to rule, an implied but retracted grant of the
motion, or an implied denial. The parties offer us differing views. We summarize
each of these possible interpretations, none of which leads to a conclusion of reversible
error.

                       a. No Ruling: Forfeiture
         Respondent contends the court did not rule on the motion for a new trial or on the
Faretta motion to proceed in propria persona, since no express ruling is recorded in the
reporter’s transcript. When a court does not rule on a motion, the movant usually must
press for a ruling or risk waiving, forfeiting, or abandoning the issue for purposes of
appeal. (People v. Braxton (2004) 34 Cal.4th 798, 813-814 [new trial motion]; Skaggs,
supra, 44 Cal.App.4th at pp. 7-8 [Faretta motion].) Respondent argues that Yim waived
any claim of error as to his motions for a new trial and self-representation, since he did
not press for a ruling but stood mute as the court imposed sentence and dealt directly with
his attorney.
         If respondent is correct that the court did not rule on the motions, Yim has failed
to establish error. We nonetheless proceed with the analysis.


                                               9
                     b. Implied Grant of Motion: No Prejudicial Error
       Yim, by contrast, maintains that the court granted his request for self-
representation, but then improperly precluded him from exercising it. He bases his
conclusion on the fact that, when he requested to “go pro per” at the end of the
Marsden proceeding, the court replied, “We’ll do that on the record.” On the record in
open court, the judge confirmed that Yim wanted to represent himself (and Yim
replied, “Yes”), and the court allowed him to file his motion for a new trial. With that,
Yim asserts, the court granted the Faretta motion. But then, having granted the
motion, the court proceeded to violate Yim’s right to represent himself by not ruling on
the new trial motion or giving Yim the opportunity to personally litigate it, and by
addressing Yim’s attorney, not Yim, on sentencing matters.
       Yim’s argument is unpersuasive. In the first place, we cannot agree with his
interpretation of the record. The court told Yim to give his written motion “to the
deputy” and the court would “have Mr. Clerk file it for the record.” (Italics added.)
This language suggests the court was allowing Yim’s motion to be filed merely for the
purpose of preserving the record, not because it was granting Yim the right to represent
himself. Indeed, this language, coupled with the fact that the court also said it was
ready to proceed with sentencing, did not discuss Yim’s new trial motion, and
continued to acknowledge Yim’s attorney rather than Yim, gives rise to a clear
inference that the court effectively denied Yim’s Faretta motion. (And in fact, the
clerk’s docket and minutes states that the motion was denied.)
       Furthermore, even if Yim’s interpretation of the record was correct and the court
had granted the Faretta motion, Yim fails to show prejudicial error. The record
indicates no possibility that Yim would have received a more favorable outcome if he
had been allowed to argue his new trial motion. The new trial motion was based on the
alleged ineffectiveness of his trial attorney, which the court had already rejected after
hearing from Yim during the Marsden proceedings; Yim does not challenge this ruling
or explain why the new trial motion might have been granted if Yim had argued it. Nor
does the record indicate any possibility he would have received a more favorable


                                             10
outcome if he had represented himself at sentencing. Yim was given the opportunity to
speak at the sentencing hearing, but he merely stated that he shot at Taylor’s car to
defend himself. In short, there is no probability that self-representation would have
resulted in a new trial, a more lenient sentence, or any other outcome more favorable
than what he obtained, so the error Yim alleges was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson); see People v. Rogers (1995) 37 Cal.App.4th 1053,
1058 [erroneous denial of untimely Faretta motion is reviewed under Watson harmless
error test]; People v. Rivers (1993) 20 Cal.App.4th 1040, 1050-1051 (Rivers) [same].)
(And, to the extent the sentence was erroneous, we modify it anyway, as discussed
post.)

                      c. Implied Denial of Motion: No Abuse of Discretion
         A third view of the record—to which we have already alluded—is that the court
implicitly denied the Faretta motion (and new trial motion), since the court proceeded
with the sentencing and continued to recognize Yim’s defense counsel as his attorney.
Yim does not establish that the denial of the motions was erroneous.
         As mentioned, if a Faretta motion is untimely, self-representation is no longer a
matter of right but is subject to the court’s discretion. (Jenkins, supra, 22 Cal.4th at
p. 959.) Here, Yim’s motion was untimely because it was brought on the very day of
sentencing. (See Doolin, supra, 45 Cal.4th at pp. 454, 455 & fn. 39 [motion brought on
day of sentencing, after unsuccessful Marsden motion, was untimely]; Miller, supra, 153
Cal.App.4th at p. 1024 [motion brought after new trial motion and months before
sentencing hearing was timely because it was brought “within a reasonable time” before
sentencing].)
         Where a Faretta motion is untimely, the court “ ‘should consider factors such as
the “quality of counsel’s representation of the defendant, the defendant’s prior proclivity
to substitute counsel, the reasons for the request, the length and stage of the proceedings,
and the disruption or delay which might reasonably be expected to follow the granting of
such a motion.” ’ ” (Clark, supra, 3 Cal.4th at pp. 98-99.)



                                              11
       These factors support a denial of Yim’s Faretta motion. The court had already
considered the quality of counsel’s representation—and found it adequate—in denying
Yim’s Marsden motion. Yim had previously sought to substitute counsel, as indicated
by his Marsden motion. The reasons for his request were ineffective assistance of
counsel, which, as discussed ante, the court had already rejected, and a desire to bring a
new trial motion that, as discussed ante, was not shown to have any merit. And while
Yim argues that he had not sought a continuance or other delay of the proceedings, he
was attempting to proceed with a motion for a new trial, which would have taken at
least some time to adjudicate, particularly since he brought neither the new trial motion
nor the Faretta motion until the date for sentencing. Under the circumstances, the
implied denial of Yim’s Faretta motion was not an abuse of discretion. (Doolin, supra,
45 Cal.4th at p. 455 & fn. 39; see Windham, supra, 19 Cal.3d at p. 129, fn. 6 [no rule
that trial court must state reasons for denying Faretta motion on nonconstitutional
grounds].)
       Moreover, for the reasons stated ante, any error in prohibiting Yim from
representing himself was harmless, since there is no showing that Yim would have
obtained a better result if he had represented himself. (Rivers, supra, 20 Cal.App.4th at
pp. 1047-1053 [trial court’s summary denial of an untimely Faretta request, without
any indication that court actually considered and exercised its discretion, was
erroneous; but error was harmless under Watson because defendant, representing
himself, would not have achieved a more favorable result].)3


3
        We also note respondent’s argument that Yim’s request for self-representation was
not unequivocal. (See People v. Boyce (2014) 59 Cal.4th 672, 703 [“[t]he Faretta right is
forfeited unless the defendant ‘ “articulately and unmistakably” ’ demands to proceed in
propria persona”].) Yim did say he wanted to go “pro per” during the Marsden
proceedings and later confirmed his desire in open court. However, in his handwritten
new trial motion that he filed with the court, he did not seek to represent himself, but
requested appointment of new counsel. When Yim had the opportunity to speak during
the sentencing hearing, he did not say anything about the new trial motion or any basis
for representing himself. And when the court asked his attorney if the matter was
submitted, counsel stated “Submitted” without any objection or other comment from

                                            12
         In sum, there was no prejudicial error in the implied denial of Yim’s Faretta
motion. And, as discussed ante, there is no indication or persuasive argument that the
new trial motion was denied improperly either.
         Under any reasonable interpretation of the record, Yim fails to establish reversible
error.

         C. Sentencing on Counts 3 and 4
         In addition to the indeterminate term imposed for the murder of Nava, the trial
court imposed full, consecutive determinate terms for attempted murder and the
associated firearm discharge enhancement—in other words, 9 years plus 20 years—for
each of counts 2, 3, and 4, so that Yim’s determinate term was 87 years and his total
term was 127 years to life.
         Yim contends the sentence violates sections 1170 and 1170.1, as well as rule
4.451 of the California Rules of Court.4 Specifically, while it was lawful to impose the
full determinate upper term of 9 years for the attempted murder and 20 years for the
enhancement on count 2, it should have imposed only one-third that much—3 years for
the attempted murder and 6 years 8 months on the enhancement—for counts 3 and 4.
Respondent agrees in principle but notes that the sentence for attempted murder on
counts 3 and 4 should be one-third of the 7-year midterm, not one-third of the 9-year
upper term. (See § 664, subd. (a) [punishment for attempted murder is 5, 7 or 9 years];
1170.1 [sentence on subordinate counts should be one-third the middle term (and one-
third the term of an enhancement corresponding to those counts)]; People v. Moody

Yim. (See Skaggs, supra, 44 Cal.App.4th at pp. 5-6 [defendant’s mere statement during
Marsden hearing that “I’d like to go pro per if I could” was not sufficiently unequivocal
to constitute a Faretta motion].)
4
       Rule 4.451, subdivision (a) provides in part: “When a defendant is sentenced
under section 1170 and the sentence is to run consecutively to a sentence imposed under
section 1168(b) in the same or another proceeding, the judgment must specify the
determinate term imposed under section 1170 computed without reference to the
indeterminate sentence, must order that the determinate term be served consecutively to
the sentence under section 1168(b), and must identify the proceedings in which the
indeterminate sentence was imposed.”

                                              13
(2002) 96 Cal.App.4th 987, 994 [term for firearm use enhancement on a subordinate
count is one-third the term]; see generally People v. Neely (2009) 176 Cal.App.4th 787,
797-798 [explaining sentencing procedure for determinate and indeterminate terms].)
       We agree with respondent, and we will modify the sentence accordingly.
Specifically, as to each of counts 3 and 4, Yim’s sentence shall be 2 years 4 months for
the attempted murder and 6 years 8 months for the enhancement. This results in a total
sentence of 87 years to life, rather than 127 years to life.

       D. Cruel and Unusual Punishment
       Yim contends that, even if the sentence is modified to reduce the two subordinate
terms, it is still excessive under the Eighth Amendment to the United States Constitution
and Article I, section 17 of the California Constitution, in that it constitutes cruel or
unusual punishment. (See In re Alva (2004) 33 Cal.4th 254, 291.)
       Yim does not contend the sentence is disproportionate to his culpability or to the
nature of his crimes, or is greater than that imposed on similarly situated offenders.
Instead, he contends the sentence is just too long because there is “no way he can
possibly hope to complete the sentence.” He relies on Justice Mosk’s concurring opinion
in People v. Deloza (1998) 18 Cal.4th 585 (Deloza), which opined that a sentence of 111
years is “impossible for a human being to serve, and [is] therefore [unconstitutional].”
(Id. at p. 600.)
       Yim’s argument is unavailing. First, he did not raise the argument in the trial
court, and he does not establish that he can raise it now. (People v. Norman (2003)
109 Cal.App.4th 221, 229 [cruel and unusual punishment contention is waived if not
raised in trial court]; People v. Kelley (1997) 52 Cal.App.4th 568, 583 [same].)
Second, he does not provide any instance of a court adopting the rationale of Justice
Mosk’s concurring opinion in Deloza. To the contrary, courts have disagreed with his
view, and it is not the law. (People v. Haller (2009) 174 Cal.App.4th 1080, 1094;
People v. Byrd (2001) 89 Cal.App.4th 1373, 1383; see People v. Sullivan (2007) 151
Cal.App.4th 524, 572.)



                                              14
       Yim also argues that an Eighth Amendment analysis requires comparison of his
sentence with “sentences imposed on other criminals in the same jurisdiction.” (Citing
Solem v. Helm (1983) 463 U.S. 277, 292.) He argues that his sentence is essentially life
without the possibility of parole, which may be imposed for a murder only if the jury also
finds one or more special circumstances. (§ 190.2, subd. (a).) This, he maintains,
indicates his sentence is excessive, because his sentence is basically the sentence that
would be imposed for a more serious crime. (See Solem v. Helm, at p. 291.) However,
Yim overlooks the fact that his sentence is not only for murdering Nava, but also for the
attempted murder of three other victims, as well as the associated enhancements. He fails
to establish that his sentence is unconstitutionally cruel or unusual.

                                    III. DISPOSITION
       We modify the judgment only as to the sentence imposed with respect to counts 3
and 4, such that, as to each of those counts, appellant shall receive a sentence of 2 years
4 months for the attempted murder and 6 years 8 months for the corresponding
enhancement. As so modified, the judgment is affirmed.




                                                  NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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