Filed 5/5/14 P. v. Bustos CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B245088

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA071862)
         v.

FEDERICO BUSTOS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
D. Carter, Judge. Affirmed.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and Stacy
S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.


                                           ______________________
                                    INTRODUCTION


       Defendant Federico Bustos appeals from the judgment of conviction entered after
a jury trial. The jury found Bustos guilty of the first degree murder of Victor Tapia (Pen.
Code, § 187, subd. (a)1; count 1), committed while engaged in the commission of a
robbery and kidnapping (§ 190.2, subd. (a)(17)); the willful, deliberate, and premeditated
attempted murder of Alejandro Hernandez (§§ 187, subd. (a), 664; count 2) during which
Bustos personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally
discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (c) & (d)),
and personally inflicted great bodily injury (§ 12022.7, subd. (a)); and assault with a
semiautomatic firearm upon Hernandez (§ 245, subd. (b); count 3) during which Bustos
personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily
injury (§ 12022.7, subd. (a)).
       The jury acquitted Bustos of two counts of kidnapping to commit another crime
(§ 209, subd. (b)(1); counts 4 & 5) but found him guilty of the lesser included offense of
kidnapping (§ 207, subd. (a)). With respect to the kidnapping of Tapia (count 4), the jury
found true the allegations that Bustos personally used a firearm (§ 12022.53, subd. (b))
and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), but found
not true the allegation that Bustos personally and intentionally discharged a firearm that
caused great bodily injury or death to Tapia. With respect to the kidnapping of
Hernandez, the jury found true the allegations that Bustos personally used a firearm
(§ 12022.53, subd. (b)), personally and intentional discharged a firearm (§ 12022.53,
subd. (c)), and caused great bodily injury or death to Hernandez in doing so (§ 12022.53,
subd. (d)).




1      All further statutory references are to the Penal Code, unless otherwise noted.


                                             2
         The jury also found Bustos guilty of carjacking (§ 215, subd. (a); count 6) and
robbery (§ 211; count 82) and found true the allegations that during the commission of
these crimes Bustos personally used a firearm (§ 12022.53, subd. (b)), personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally inflicted great
bodily injury on Hernandez (§ 12022.7, subd. (a)), but found not true the allegation that
Bustos personally and intentionally discharged a firearm causing great bodily injury or
death to Tapia and Hernandez (§ 12022.53, subd. (d)).
         On count 1 the trial court sentenced Bustos to state prison for life without the
possibility of parole. On count 2 the court imposed a consecutive term of life with the
possibility of parole, plus 25 years to life pursuant to section 12022.53, subdivision (d).
Pursuant to section 654 the court stayed the sentences it imposed on counts 3, 4, 5, 6,
and 8.
         Bustos contends (1) the trial court’s exclusion of evidence that Tapia was a drug
dealer with a pending case against him and that his autopsy revealed methamphetamine
in his system violated his rights to cross-examine witnesses against him and to present a
defense; (2) the death penalty violates the Eighth Amendment because the proliferation of
special circumstances has undermined the narrowing function required by California law;
and (3) his sentence constitutes cruel and unusual punishment. Finding no merit to any of
these contentions, we affirm the judgment.


                                            FACTS


         A.     The Day Before the Crimes
         Around 5:00 p.m. on Sunday, April 2, 2006, Hernandez, who then lived in Van
Nuys with his father, went to his friend Tapia’s house. Hernandez had known Tapia for
three years. Hernandez left about an hour later after consuming two or three 12-ounce



2        The information did not contain a count 7.


                                               3
beers and went to the house of his best friend, Ruben Estrada, arriving around 6:10 p.m.
While at Estrada’s house, Hernandez assisted with a barbecue and drank more beer.
Sometime before 8:00 p.m. Hernandez either was going to or coming from his car alone
when he encountered an individual known as Chupacabra. Chupacabra, whom
Hernandez had known for about a year, gave Hernandez some methamphetamine, which
he cut into four lines and snorted. Hernandez then returned to Estrada’s house where he
stayed until 10:00 or 11:00 p.m and consumed about ten, 12-ounce beers. Hernandez
returned to his home and went to bed, but because he had taken methamphetamine he was
unable to sleep.


       B.     The Crimes
       Hernandez, who worked full time as a machinist, called in sick on Monday,
April 3, 2006 because he had a hangover and had been unable to sleep. He drank two,
24-ounce beers and felt a little better.
       At 7:00 or 8:00 a.m. Tapia called Hernandez and asked Hernandez to drive him to
Riverside so he could collect some money from his cousin. Tapia did not say how much
money his cousin owed him or why his cousin owed him the money, and Hernandez did
not ask. Although Tapia had a car, he asked Hernandez to drive him because he believed
that if the police pulled him over in Riverside County they would ask him about his legal
status. Hernandez did not think Tapia had a driver’s license and believed he was not
legally in the United States. Hernandez agreed to drive Tapia, who in turn said he would
pay Hernandez $100.
       Hernandez picked up Tapia, who lived three or four minutes away. As they drove
to Riverside, Estrada called Hernandez multiple times. Hernandez answered 10 to 15 of
Estrada’s calls, and then turned his phone to silent.3 After driving for two hours and


3     According to Hernandez, Estrada had been unemployed for a year. It was not
unusual for Hernandez to receive multiple telephone calls from Estrada throughout the
day. Estrada even called Hernandez when he was at work.


                                             4
realizing they were lost, Hernandez pulled into a liquor store and parked. Tapia used his
cell phone to call his cousin and then walked into the store. Tapia returned to
Hernandez’s car where the two men waited for Tapia’s cousin to arrive.
       About 20 minutes later, a maroon Honda Accord with three Hispanic males pulled
up along the right side of Hernandez’s car. Hernandez had never seen any of the three
men before. The man in the back seat of the Honda got out of the car and said “Hi” to
Tapia. Tapia, in turn, said, “Hi Primo,” which means cousin in Spanish. Primo got into
the back seat of Hernandez’s car and starting giving Hernandez directions. Hernandez
followed and later passed the Honda. Tapia and Primo had “a friendly conversation” as if
they had not seen each other for a while. It appeared to Hernandez that Tapia and Primo
knew each other well.
       Hernandez continued to drive when he heard the sound of a gun being cocked.
Hernandez was “shocked” and turned around to see Primo pointing a semi-automatic gun
at him. Tapia was surprised as well. Primo directed Hernandez to stop, and Hernandez
pulled over to the curb. Tapia asked Primo, “What are you doing? Are you crazy?” At
Primo’s direction, Tapia moved from the front passenger seat to the rear seat behind
Hernandez. Hernandez, who was “scared,” looked into the rearview mirror and saw
Primo covering Tapia’s eyes and mouth with gray duct tape. Hernandez did not see
Primo tape the other parts of Tapia’s body but he did hear Primo unrolling tape.
       After he finished taping Tapia, Primo told Hernandez to get out of the car.
Hernandez complied, leaving his keys in the ignition. Once outside Hernandez saw the
Honda about three feet away. Bustos and another individual were inside the Honda.
Primo, who also got out of Hernandez’s car, told Hernandez to get in the back.
Hernandez got into the passenger side rear seat. Primo got into the driver’s seat of
Hernandez’s car and Bustos got into the front passenger seat. Bustos turned around and
told Hernandez to put his hands behind his back. Hernandez complied and put his hands
behind his back so that Bustos could tape them. Bustos then told Hernandez to put his
feet up. Hernandez again complied, and Bustos taped his ankles. Finally, Bustos taped



                                             5
Hernandez’s mouth and eyes.4 The car then began moving. Hernandez could hear Primo
and Bustos whispering.
       About 20 minutes later, the car stopped. Tapia and Hernandez were taken out of
the car. Hernandez was placed face down on what felt like cold cement. Hernandez
heard Tapia mumbling a few feet away. Someone frisked Hernandez and removed $300
and a cell phone from his pockets. Hernandez overheard Bustos telling the other men
that the sound system in Hernandez’s car was “nice.”5 Hernandez heard his trunk open
and also heard dismantling sounds. During this time Hernandez heard a male voice he
had not heard before. When Hernandez complained that his arms hurt, someone cut the
tape around his wrists and re-taped his wrists in the front of him. After about an hour
later, Hernandez was picked up and told to get in the car. Because he could not walk,
someone cut the tape around his ankles. Hernandez got back into what he believed was
his car and someone shut his door. He also heard someone get into the car and sit next to
him and the door close. He then heard two more doors shut. Tape still covered
Hernandez’s eyes, and he could not see anything.
       The car then started moving again at a fast speed for about two hours as if they
were traveling on the freeway. During the ride Hernandez was hot and started sweating.
As a result the tape around eyes became loose on the bottom. He tilted his head back and
was able to see a male Hispanic in the driver’s seat, who looked like the third individual
he had seen in the Honda earlier. Hernandez could not see the front passenger’s face but
was able to see that he was wearing a gray baseball cap. The cap appeared to be the same
one he saw Bustos wearing earlier. Hernandez also recognized Bustos’ voice as the voice
of the person who had given him instructions and taped him up. Hernandez was also able
to confirm that he was in his car.


4      Bustos placed the tape over Hernandez’s eyes but not around his head.
5      Hernandez’s car was equipped with a seven-inch front dash monitor, an equalizer,
XM satellite radio, a DVD player, and two headrest monitors. He also had two amplifiers
and a big speaker box in the trunk. He valued his equipment at $3,500 to $4,000.


                                             6
       After about two hours, Hernandez noticed that the road had become “bumpy.”
The car hit a pothole or something and then stopped. Unbeknownst to Hernandez, the
men had driven him and Tapia to an isolated area of Sierra Madre. Hernandez heard the
two men in the front talking, followed by the sound of “a walkie-talkie type of a thing.”
Hernandez then heard someone say, “It’s clear.” He then heard the front doors open and
“two guns cock,” followed by shooting. A bullet struck Hernandez under his nose, and
he lost consciousness.
       Hernandez later regained consciousness but had no idea how much time had
passed. When he removed the tape from his eyes, he saw Tapia “slumped over” with
blood on his head. Tapia was not moving or making any sounds. Hernandez told Tapia
that he was going to get help and that he would be back. Hernandez managed to unlock
and open the car door. Outside he saw a hill, a mountain, and a dirt road. No one was
around. Hernandez started down the hill and removed the tape from his mouth. It was
getting dark when he encountered a group of men and screamed for help. Someone
called for help, and an ambulance arrived and took him to the hospital.
       Hernandez had two surgeries and remained in the hospital for three weeks.
Hernandez was shot between his nose and upper lip, in the chin, neck, finger, and left
arm, and sustained lasting injuries. Tapia died from two gunshots to the head, each of
which was independently fatal. One bullet went completely through his head; the
medical examiner removed the other bullet from his head.


       C.     The Investigation of the Crimes
       Law enforcement personnel found inside Hernandez’s car five containers
containing a white powdery substance resembling a controlled substance in a dark plastic
bag. Each container was wrapped with duct tape. Hernandez did not recognize the
containers and had no idea why anyone would put them in his car. Hernandez never saw
Tapia with the containers. A criminalist subsequently analyzed the contents of the
containers and determined that they contained no controlled substances but instead
contained “bunk,” an innocuous substance made to resemble a controlled substance.

                                             7
       While Hernandez was in the hospital, he communicated by writing notes because
his jaw had been wired shut. Police found a handwritten note that Hernandez had
discarded in the trash can of his hospital room. The note stated, “I don’t want the cops to
know the truth. What’s up? I afraid that they know where I live because I had my
license and they had my keys.” Hernandez explained that at the time he wrote this note,
he was “afraid of saying anything” because he had seen the faces of his assailants. He
feared “retaliation because they had my keys to my house and my driver’s license,
basically all the information they need.”
       Bustos’ fingerprints matched latent fingerprints found on the left rear interior door
handle of Hernandez’s car. DNA evidence collected from the left rear interior door grip
and the front passenger seatbelt in Hernandez’s car identified Bustos as a possible
contributor. DNA evidence collected from a glove and nail clippers recovered from the
car matched Bustos as a “major contributor.” Hernandez’s blood was found on the glove.
A sock found in Hernandez’s car contained Tapia’s blood and Bustos’ DNA. DNA from
Tapia and Bustos were also present on duct tape found in the car.
       A bullet removed from the headrest of the left rear passenger seat of Hernandez’s
car where the police found Tapia and a bullet recovered from Tapia’s body were both
fired from a 9-millimeter Luger caliber pistol. A bullet removed from Hernandez’s body,
as well as a bullet recovered from the right rear passenger seat of his car where he was
sitting, and shell casings recovered from Hernandez’s car, matched a pistol recovered
from a car driven by Bustos on April 9, 2006 after a Riverside Police Officer attempted to
effect a traffic stop. Bustos fled from the scene leaving the pistol on the driver’s seat.
       More than a year after the shooting, Hernandez identified Bustos in a photographic
lineup as the person who entered his car and bound him with duct tape. He was not,
however, 100 percent sure of his identification. The police arrested Bustos on
December 27, 2007.




                                              8
                                       DISCUSSION


       A.     The Trial Court Did Not Abuse Its Discretion or Violate Bustos’
              Constitutional Rights by Excluding Evidence of Tapia’s Drug Usage and
              Pending Drug Charges
       Bustos contends that the “trial court erred by prohibiting the defense from offering
evidence that victim Tapia was a drug dealer with a pending case against him and that
methamphetamine was found in his system at the time of the autopsy in violation of
[Bustos’] rights to cross-examine the witnesses against him and to present a defense.”
Bustos has not established a violation of his constitutional rights.


              1.        Relevant Background
       Bustos’ theory of defense was that Hernandez knowingly drove Tapia to Riverside
to engage in a methamphetamine drug transaction. They took the drugs, which they had
hidden in the speakers in Hernandez’s trunk, into an apartment in Riverside, where
something went terribly wrong. Individuals other than Bustos taped Hernandez and
Tapia inside the apartment and then drove them to Sierra Madre and shot them because of
the failed drug deal.
       Prior to trial, and in an effort to establish his theory of defense, Bustos filed a
motion asking the court to allow him to introduce evidence that Tapia had been arrested
and had a pending case against him for sale of methamphetamine. At the hearing on the
motion, counsel for Bustos argued that the evidence was relevant “to strengthen the
defense position that the crimes alleged against defendant Bustos were committed by
persons other than defendant Bustos as the result of a drug deal gone bad” and to impeach
Hernandez’s credibility as “an admitted friend of” Tapia. When the trial court asked if
counsel for Bustos was attempting to establish third-party culpability, counsel said he
was not. Counsel suggested, among other things, that Tapia was a drug dealer (based on
Hernandez’s testimony at the preliminary hearing that Tapia sold drugs from his house),
that Hernandez was directly or indirectly involved in the sale of methamphetamine, and

                                               9
that Hernandez was lying when he denied he was involved in drug sales. Counsel for
Bustos argued that Hernandez knew he was driving Tapia to Riverside to participate in a
drug deal, that Tapia’s pending case strengthened Bustos’ position, and that the electronic
equipment Hernandez installed in his car was the fruit of his drug activities. Finally,
counsel for Bustos emphasized that Hernandez, in his preliminary hearing testimony,
stated that he had $300 in cash on his person and had received a $600 cell phone bill.
         The trial court denied Bustos’ motion to admit evidence of Tapia’s arrest and
pending case for sale of methamphetamine, finding “that there is insufficient probative
value . . . in presenting this evidence to the jury for several reasons.” First, the court
noted, “as defense counsel concedes, the entire argument of presenting this information is
based on the fact that the allegation is true. . . . And if the allegation is true then,
therefore, all of these things follow including the theory that . . . the killing was actually a
drug deal gone bad and, therefore, it was another person who committed this act. So that
is the No. 1 reason why this information doesn’t have any probative value because we
just don’t know if it’s true.” Second, the court stated that if it “were to engage in some
type of evidentiary hearing or allowing evidence in as to its truthfulness, then under
[Evidence Code section] 352 that would be a huge consumption of time. It would have a
trial within a trial and it would also be fundamentally unfair to present evidence against a
witness who is not here to defend themselves [sic], basically, is what it would be, even
though Mr. Tapia is not a witness here in this case.” Third, the court noted that “this is
not impeachment evidence. Mr. Tapia is not a witness. I think it would be a different
circumstance if Mr. Tapia’s statement were coming in. I think the court would have to
evaluate whether or not prior bad acts would be used as impeachment against a statement
by Mr. Tapia. But as it stands right now I don’t have any statements by Mr. Tapia that
are coming in.” The prosecutor confirmed that there would be no such statements by
Tapia.
         The court also stated that the fact that Hernandez had nice stereo equipment in his
car did not logically imply that he had used drug money to purchase the equipment
because, as a matter of common knowledge, people spend a lot of money on their cars.

                                               10
With respect to the $600 cell phone bill, the court stated, “I don’t find a $600 phone bill
excessive. I have two teenage kids and knowing how phones are used and all of the
different charges that are put out there now, it’s very easy to come up with a $600 phone
bill. And all Mr. Hernandez has to do is not pay for one month and he is looking at a
huge phone bill.”
       After the trial court denied Bustos’ motion, the People made a motion to exclude
evidence that Tapia had methamphetamine in his system at the time of his death. The
prosecutor argued that the cause of Tapia’s death was not an issue and therefore his
toxicology results were irrelevant and an impermissible type of character evidence.
Counsel for Bustos opposed the motion, explaining that he was not seeking to introduce
Tapia’s toxicology results for the purpose of attacking Tapia’s character. Rather, counsel
for Bustos sought to introduce such evidence “to strengthen . . . the defense position that
the crimes alleged against Federico Bustos were committed by persons other than Mr.
Bustos as a result of a drug deal gone bad.” Counsel for Bustos argued that Tapia’s
toxicology results were relevant to prove that Tapia used and sold drugs and “to impeach
the credibility of Mr. Hernandez who . . . admitted at [the] preliminary hearing that he
uses drugs.”
       The trial court did not think there was “a close enough nexus for one to say
[Tapia] had drugs in his system, therefore, this was a drug deal gone bad.” The court
therefore excluded Tapia’s toxicology results on relevancy grounds. The court further
noted that even if the evidence had some limited relevance the court would exclude the
evidence pursuant to Evidence Code section 352 because of the undue consumption of
time and substantial danger of confusing the jury. “I am going to say this. If there is
additional evidence regarding the drug deal, then I will reconsider whether or not that has
some relevance. But right now the sort of theory of drug deal gone bad is so tenuous that
I don’t see how there is a connection.”
       Despite the trial court’s ruling, counsel for Bustos asked Hernandez a series of
questions, which Hernandez answered in the negative, designed to convey the defense
theory of the case to the jury. Bustos’ theory was that on April 2, 2006, the day before

                                             11
the crimes, while at Tapia’s residence, Hernandez and Tapia agreed to engage in a drug
transaction the following day in Riverside. After drinking beer and ingesting
methamphetamine, Hernandez told Estrada about the drug deal that Hernandez and Tapia
had planned for the next day. While Hernandez and Tapia were en route to Riverside the
following day, Estrada called Hernandez numerous times on his cell phone because
Estrada did not want Hernandez to go through with the drug deal. After meeting Tapia at
the liquor store, Hernandez and Tapia followed the maroon Honda from the parking lot to
an apartment in Riverside. They then removed a quantity of methamphetamine from the
speakers in the trunk and took the drugs to the apartment complex. Hernandez and Tapia
were duct-taped inside the complex, not on a public street in broad daylight. In addition,
Hernandez purchased the stereo and electronics equipment in his car with money he
made from selling methamphetamine. Chupacabra, who Hernandez claimed gave him
methamphetamine on April 2, 2006, was a figment of his imagination.


              2.     Applicable Law and Analysis
       “Of course, only relevant evidence is admissible (Evid.Code, § 350), and
relevance is defined as ‘having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action’ (id., § 210).” (People v.
Jones (2013) 57 Cal.4th 899, 947.) “This definition includes evidence ‘relevant to the
credibility of a witness.’ [Citation.]” (People v. Contreras (2013) 58 Cal.4th 123, 152.)
“Conversely, a matter is ‘collateral’ if it has no logical bearing on any material, disputed
issue. [Citation.] A fact may bear on the credibility of a witness and still be collateral to
the case. [Citations.]” (Ibid.) “The trial court has broad discretion to determine the
relevance of evidence [citation], and we will not disturb the court’s exercise of that
discretion unless it acted in an arbitrary, capricious or patently absurd manner [citation].”
(Jones, supra, at p. 947.)
       The trial court also has discretion to exclude relevant evidence “if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of

                                             12
confusing the issues, or of misleading the jury.” (Evid. Code, § 352; People v. Edwards
(2013) 57 Cal.4th 658, 713; People v. Maciel (2013) 57 Cal.4th 482, 527.) As with
relevancy rulings, we review the trial court’s rulings under Evidence Code section 352
for an abuse of discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181; People v.
Ghebretensae (2013) 222 Cal.App.4th 741, 754.)
       Here, the trial court acted well within its broad discretion in ruling that the
evidence regarding Tapia’s pending case for sale of methamphetamine, as well as the
evidence that he had methamphetamine in his system at the time of his death, was
irrelevant. This evidence had no tendency in reason to prove that Tapia and Hernandez
drove to Riverside for the purpose of engaging in a drug deal, that they were shot because
of a “drug deal gone bad,” or that Bustos was not one of the shooters. Any such
inferences Bustos may have attempted to draw from such evidence would have been
speculative at best and thus irrelevant. (See People v. Gonzales (2012) 54 Cal.4th 1234,
1260 [speculative inferences are irrelevant]; People v. Morrison (2004) 34 Cal.4th 698,
711 [“[e]vidence is irrelevant . . . if it leads only to speculative inferences”]; People v.
Yeoman (2003) 31 Cal.4th 93, 141 [“the law does not require the admission of evidence
made relevant only by speculative hypothesis”].)
       Even if the evidence had some marginal relevance, the trial court also acted well
within its broad discretion in excluding the evidence under Evidence Code section 352.
The trial court was justified in concluding that whatever limited probative value the
evidence might have had was substantially outweighed by the accompanying undue
consumption of time, and by the substantial danger of confusing the issues and
misleading the jury that conducting a trial on the pending drug charge against Tapia
would have created. (See People v. Hamilton (2009) 45 Cal.4th 863, 930 [trial court did
not abuse its discretion under Evidence code section 352 by excluding evidence that
“would have required ‘a mini-trial’” and “was of limited probative value”]; People v.
Brown (2003) 31 Cal.4th 518, 544-545 [trial court did not abuse its discretion under
Evidence Code section 352 by excluding evidence of a prosecution witness’ pending
charges]; People v. Jones (2003) 30 Cal.4th 1084, 1108-1109 [trial court did not abuse its

                                              13
discretion under Evidence Code section 352 by excluding evidence that was “not
particularly probative” and “would have required evidence of the details of an otherwise
unrelated crime”]; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1154 [“the trial
court was well within its discretion to prevent a minitrial on [the defendant law
enforcement agency’s] administrative decisions regarding its Taser policy, when the issue
was defendant’s conduct at the time he shot” the victim]. The trial court was justifiably
concerned that a mini-trial on Tapia’s drug charges would have distracted the jurors from
the issue in the case of whether Bustos and his accomplices had shot Hernandez and
Tapia.
         The trial court also acted well within its discretion in excluding evidence of
Tapia’s toxicology results under Evidence Code section 352. The trial court properly
determined that introduction of evidence showing that Tapia had methamphetamine in his
system when he died would also consume too much time and pose a substantial danger of
confusing the jury. The evidence would have invited the jury to speculate about whether
Tapia and Hernandez had engaged in criminal activity, which, in any event, would not
have been a defense to the execution of Tapia and the attempted execution of Hernandez.
         Finally, “not every restriction on a defendant’s cross-examination rises to a
constitutional violation. [Citation.]” (People v. Singleton (2010) 182 Cal.App.4th 1, 18.)
The right to confront and cross-examine adverse witnesses “is not absolute . . . ‘and may,
in appropriate cases, bow to accommodate other legitimate interests in the criminal trial
process.’ [Citation.]” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138-1139.)
Because the trial court did not abuse its discretion in its evidentiary rulings, there was no
violation of Bustos’ constitutional right to cross-examine Hernandez and present a
defense. (See People v. McNeal (2009) 46 Cal.4th 1183, 1203 [“‘As a general matter, the
“[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a
defendant’s right to present a defense”’”]; People v. Cunningham (2001) 25 Cal.4th 926,
999 [“[a]lthough the complete exclusion of evidence intended to establish an accused’s
defense may impair his or her right to due process of law, the exclusion of defense



                                               14
evidence on a minor or subsidiary point does not interfere with that constitutional
right”].)


       B.     The Trial Court Did Not Impose an Unconstitutional Death Penalty
              Sentence on Bustos
       “A defendant convicted of first degree murder with at least one special
circumstance found true will be sentenced to either death or life imprisonment without
the possibility of parole. [Citation.] One of these special circumstances is the felony-
murder special circumstance . . . .” (People v. Estrada (1995) 11 Cal.4th 568, 571-572;
see § 190.2, subd. (a).) Bustos contends the “California death penalty law violates the
Eighth Amendment of the United States Constitution because the proliferation of special
circumstances has undermined the narrowing function required of California law.”
Because the People did not seek, and Bustos did not receive, the death penalty in this
case, Bustos does not have standing to challenge the constitutionality of the death penalty
statute. (See Bradway v. Cate (9th Cir. 2009) 588 F.3d 990, 991 [defendant “recognizes
that he lacks standing for an Eighth Amendment death penalty challenge because he was
not sentenced to death”]; Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907 [“[t]he
government correctly argues that [the defendant] lacks standing to [challenge the death
penalty] because he was not sentenced to death”]; see also In re Perdue (2013) 221
Cal.App.4th 1070, 1077 [“‘“[t]he rule is well established . . . that one will not be heard to
attack a statute on . . . grounds that are not shown to be applicable to himself and that a
court will not consider . . . the question of constitutionality with reference to hypothetical
situations”’”].)
       Bustos acknowledges that the People did not seek the death penalty in this case
and that the trial court sentenced him to life without the possibility of parole. He argues,
however, that because his sentence “was enhanced by a special-circumstance finding, he
is permitted to argue as a matter of statutory construction that the special circumstance
violates the Eighth Amendment if applied in a death penalty case, since the construction
of the special circumstance in his case must be consistent with its construction in a capital

                                              15
case.” To the extent Bustos is making a constitutional challenge to the felony murder
special circumstance pursuant to which he received a sentence of life without the
possibility of parole, the California Supreme Court has repeatedly rejected such a
challenge. (See People v. Enraca (2012) 53 Cal.4th 735, 769 [“the felony-murder special
circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the pool of
those eligible for death”]; People v. Williams (2010) 49 Cal.4th 405, 469 [the number of
special circumstances in section 190.2 “is not so high as to fail to perform the
constitutionally required narrowing function; . . . and the felony-murder special
circumstance is not invalid for failing to narrow meaningfully the class of persons
eligible for the death penalty”]; People v. Pollock (2004) 32 Cal.4th 1153, 1195 [“[t]his
court has consistently rejected the claim that the statutory special circumstances,
including the felony-murder special circumstance, do not adequately narrow the class of
persons subject to the death penalty”].)


       C.     Bustos’ Sentence Is Not Cruel and Unusual Punishment
       Bustos contends that his sentence of life imprisonment without the possibility of
parole on count 1, as well as the consecutive life term plus 25 years to life imposed on
count 2, constitutes cruel and unusual punishment under the federal and state
constitutions. He has forfeited this contention, however, by failing in the trial court to
object on this ground. (See People v. Burgener (2003) 29 Cal.4th 833, 886 [defendant
forfeited cruel and unusual punishment claim “by failing to articulate an objection on
federal constitutional grounds” in the trial court]; People v. Jackson (1996) 13 Cal.4th
1164, 1231, fn. 17 [claims of constitutional error based on federal and state constitutions
are waived in the absence of a constitutional objection in the trial court]; People v.
Johnson (2013) 221 Cal.App.4th 623, 636 [“[a]ppellant forfeited the cruel and unusual
punishment issue by not asserting it in the trial court”].)
       Even if Bustos had not forfeited his constitutional argument, it would fail on the
merits. The Eighth Amendment to the United States Constitution proscribes the infliction
of “cruel and unusual punishments.” Under this constitutional provision “the courts

                                              16
examine whether a punishment is grossly disproportionate to the crime. We consider all
the circumstances of the case, beginning with the gravity of the offense and the severity
of the sentence. [Citation.] In the rare case where this threshold comparison raises an
inference of gross disproportionality, the court then compares the defendant’s sentence
with those received by others in both the same state and other states. If this comparative
analysis confirms the initial belief that the sentence is grossly disproportionate, then it is
cruel and unusual. [Citation.]” (People v. Murray (2012) 203 Cal.App.4th 277, 284-285,
fn. omitted, citing Graham v. Florida (2010) 560 U.S. 48, 59-60 [130 S.Ct. 2011, 176
L.Ed.2d 825].)
       Article I, section 17 of the California Constitution prohibits the imposition of
“[c]ruel or unusual punishment.” “‘To determine whether a sentence is cruel or unusual
. . . as applied to a particular defendant, a reviewing court must examine the
circumstances of the offense, including its motive, the extent of the defendant’s
involvement in the crime, the manner in which the crime was committed, and the
consequences of the defendant’s acts. The court must also consider the personal
characteristics of the defendant, including age, prior criminality, and mental capabilities.
[Citation.] If the court concludes that the penalty imposed is “grossly disproportionate to
the defendant’s individual culpability” [citation], or, stated another way, that the
punishment “‘“shocks the conscience and offends fundamental notions of human
dignity”’” [citation], the court must invalidate the sentence as unconstitutional.’
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1231; accord People v. Rountree
(2013) 56 Cal.4th 823, 860; People v. Dillon (1983) 34 Cal.3d 441, 486-489.) “Under
the California Constitution, a sentence is cruel or unusual if it is so disproportionate to the
crime committed that it shocks the conscience and offends fundamental notions of human
dignity. Our review under this test includes an examination of the nature of the crime
and the character of the defendant, and comparisons of the penalties in this state for more
serious crimes and those imposed in other states for the same crime. [Citations.]”
(People v. Murray, supra, 203 Cal.App.4th at p. 285; see People v. Vallejo (2013) 214
Cal.App.4th 1033, 1045.)

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       With respect to count 1, the felony murder of Tapia, Bustos “submits that his
sentence of life without the possibility of parole was grossly disproportionate to his crime
and violated the Eighth Amendment to the United States Constitution and the prohibition
against cruel or unusual punishment under article I, section 17 of the California
Constitution.” In support of this contention Bustos relies on Miller v. Alabama (2012)
567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] and Enmund v. Florida (1982) 458 U.S.
782 [102 S.Ct. 3368, 73 L.Ed.2d 1140]. Neither of these cases aids Bustos.
       In Miller v. Alabama, supra, 567 U.S. ___ [132 S.Ct. 2455] the United States
Supreme Court held that a mandatory sentence of life without the possibility of parole
imposed on a 14-year-old juvenile offender was cruel and unusual. The Supreme Court
stated “that the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” (Id. at p. ___ [132 S.Ct. at
p. 2469].) Bustos, however, was 25 or 26 years old at the time he committed his
offenses. Because he was an adult, Miller does not apply. (See People v. Abundio (2013)
221 Cal.App.4th 1211, 1220-1221 [sentence of life without the possibility of parole plus
one year is not cruel and or unusual under Miller and other cases involving juveniles
because the defendant was 18, and therefore an adult, when he committed felony
murder]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [because society
recognizes that a child becomes an adult at the age of 18, the sentencing rationale
applicable to juveniles did not apply to a defendant who was 18 years and five months
old at the time of his offenses].)
       In Enmund v. Florida, supra, 458 U.S. 782 the United States Supreme Court held
that the Eighth Amendment does not “permit[] imposition of the death penalty on one
such as Enmund who aids and abets a felony[, a robbery,] in the course of which a
murder is committed by others but who does not himself kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed.” (Id. at p. 797.) Enmund is
very distinguishable. First, Bustos was not sentenced to death. Second, Bustos intended
to kill Hernandez and Tapia and employed lethal force in carrying out his criminal
enterprise. Bustos and his accomplice drove Hernandez and Tapia, who were bound and

                                             18
blindfolded with tape, from Riverside to a remote area in Sierra Madre where they
simultaneously fired multiple rounds at their captives. The evidence showed that Bustos
shot Hernandez, while his accomplice shot Tapia, execution style. Both victims
sustained multiple gunshots to their heads and bodies. The evidence of intent to kill was
overwhelming. We reject Bustos’ assertion that “he has been unfairly signaled out from
other equally or less culpable defendants who will at least have some chance of parole in
their lifetime.” Bustos’ punishment was neither excessive nor unnecessary, and it does
not shock the conscience or offend fundamental notions of human dignity.
       Bustos also challenges the constitutionality of his sentence imposed on count 2,
the attempted murder of Hernandez, and argues that he should serve it concurrently rather
than consecutively. He argues that it is “cruel and unusual because it will be impossible
for [him] to even begin to serve that sentence as he will never be eligible for parole on
count 1.” He further argues that “[a] sentence that is impossible to even begin serving
serves no other purpose than to cause a defendant to lose hope. No legitimate societal
goal is served by imposing such a sentence . . . .” There is no merit to this argument.
Bustos will be in prison for the remainder of his life for the murder of Tapia. The fact
that Bustos, for all practical purposes, will not be able to serve separately the sentence
imposed for the attempted murder of Hernandez does not render his sentence cruel or
unusual or mandate that he serve the sentence concurrently. (See People v. Haller (2009)
174 Cal.App.4th 1080, 1089-1090 [sentence that is too long to be served does not violate
prohibition on cruel and unusual punishment]; People v. Byrd (2001) 89 Cal.App.4th
1373, 1377, 1383 [fact that defendant, who was sentenced to state prison for a
determinate term of 115 years plus an indeterminate term of 444 years to life, cannot
serve his sentence during his lifetime does not mean that his sentence is cruel and unusual
punishment]; People v. Ayon (1996) 46 Cal.App.4th 385, 399 [sentence of 240 years to
life, which is the equivalent of a life sentence without the possibility of parole, was not
cruel or unusual], disapproved on another ground in People v. Deloza (1998) 18 Cal.4th
585, 600, fn. 10.) Bustos’ sentence is severe, but so was his crime. (See People v.



                                             19
Szadziewicz (2008) 161 Cal.App.4th 823, 846 [“extremely serious crimes . . . deserve
severe punishment”].)


                                    DISPOSITION


      The judgment is affirmed.



                                                SEGAL, J.*


We concur:



             WOODS, Acting P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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