Filed 3/13/17 (unmodified opn. attached)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIRST APPELLATE DISTRICT
                                           DIVISION THREE


THE PEOPLE,
                                                     A144351
        Plaintiff and Respondent,
                                                     (Contra Costa County
v.                                                   Super. Ct. No. 51306067)

DEYANIRA CUIRIZ,                                     ORDER MODIFYING OPINION
                                                     AND DENYING REHEARING;
        Defendant and Appellant.                     NO CHANGE IN JUDGMENT



THE COURT:

It is ordered that the opinion filed herein on February 14, 2017, be modified as follows:

1. On page 4, line 4 of footnote 4, delete the word “mitigated” so that the sentence reads:
      On the attempted voluntary manslaughter count she was sentenced to 12 years
      (three-year base term plus four years for the firearm enhancement and five years
      for inflicting great bodily injury).

2. On page 10, line 21, delete the words “all counts” and insert the words “two of the
counts and the midterm on the voluntary manslaughter count” so that the sentence reads:
       The court imposed mitigated base terms on two of the counts and the midterm on
       the voluntary manslaughter count.

3. On page 12, line 15, the word “involuntary” is changed to “voluntary.”

4. On page 16, after footnote 12 on line 18, add the following sentence:
      “Upon striking the 25-year-to-life enhancement from both counts under which it
      was imposed, which we do, this sentence provides for the longest potential term of
      imprisonment in compliance with section 654.”



                                                 1
5. On page 16, in the first line of the Disposition, after the word “imposed,” insert the
words “to strike the 25-year-to-life enhancement from the sentences imposed under
counts two and three and stay the sentences imposed under counts two and three” so that
sentence reads:
       “The judgment is modified to vacate the sentence imposed, to strike the 25-year-
       to-life enhancement from the sentences imposed under counts two and three and
       stay the sentences imposed under counts two and three, and to vacate the stay with
       respect to the sentence imposed by the trial court under count one for attempted
       voluntary manslaughter, imprisonment for a term of 12 years.”


There is no change in the judgment.

The petition for rehearing is denied.




Dated:                                          _______________________ Acting P. J.




                                            2
Trial court:                            Contra Costa County Superior Court

Trial judge:                            Honorable Trevor White

Counsel for plaintiff and respondent:   Kamala D. Harris and Xavier Becerra,
                                        Attorneys General, Gerald A. Engler, Chief
                                        Assistant Attorney General, Jeffrey M.
                                        Laurence, Senior Assistant Attorney General,
                                        Donna M. Provenzano, Supervising Deputy
                                        Attorney General, and Arthur P. Beever Deputy
                                        Attorney General

Counsel defendant and appellant:        Robert H. Derham and Tiffany J. Gates




A144351


                                           3
Filed 2/14/17 (unmodified version)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIRST APPELLATE DISTRICT
                                         DIVISION THREE


THE PEOPLE,
        Plaintiff and Respondent,
                                                         A144351
v.
DEYANIRA CUIRIZ,                                         (Contra Costa County
                                                         Super. Ct. No. 51306067)
        Defendant and Appellant.


        Defendant Deyanira Cuiriz appeals a judgment sentencing her to imprisonment for
27 years to life following her conviction for attempted voluntary manslaughter, shooting
at an occupied vehicle and mayhem. She contends that she did not voluntarily and
knowingly waive her right to remain silent when she spoke to the police after having
been advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and
that the trial court erred in admitting her statements made during the police interrogation
and in refusing to excise from the evidence presented to the jury a statement by the
interrogating detective. She also contends the sentence imposed constitutes
constitutionally prohibited cruel and unusual punishment. We shall affirm the conviction
but conclude this is the rare case in which there is merit to defendant‟s constitutional
challenge to the sentence imposed.
                                            Background
        The record contains extensive testimony from numerous witnesses describing the
incident that culminated in the shooting that rendered the victim a quadriplegic. However,
a detailed recitation of the evidence is unnecessary in view of the issues raised on appeal.
        In brief, the shooting occurred after midnight on August 19, 2012, during the
course of defendant‟s 19th birthday party, outside the Richmond home where she lived


                                                1
with her parents. Although there was conflicting evidence as to what precipitated the
incident, it is undisputed that a confrontation occurred between defendant‟s father (who
like others had been drinking at the party) and the victim Oscar Barcenas and his friend
Miguel Magdaleno. The father and others were outside in front of the house when
Barcenas and Magdaleno drove by in a truck and (for disputed reasons) exited the truck
and engaged in a physical confrontation with defendant‟s father. Defendant emerged
from the house, observed the two men hitting and pushing her father and, according to
defendant, pushed her when she attempted to separate the men. Defendant testified that
she saw her father on the floor with “his face full of blood,” she was scared, she said, and
yelled at the two men to leave and they threatened to return, telling her they were gang
members. Defendant was handed a gun by her boyfriend1 and approached the truck to
which Barcenas and Magdaleno had retreated preparing to leave, and fired one shot into
the cab of the truck, piercing Barcenas‟s spinal cord.
       About a half hour after police responded to the scene, defendant approached an
officer and, as the officer testified without objection, acknowledged that she had shot the
victim. As the officer was handcuffing her, she explained that “she was defending her
father and that‟s why she shot the subject in the vehicle.” At trial she testified that as she
was standing next to the driver‟s side of the truck, Barcenas “was coming outside of the
truck towards me.” She continued, “He looked like he just turned around from looking in
his center console. When I turned around, he was already coming out. I was scared.” She
said she shot “[b]ecause I seen him come out the car and I thought he had something, he
was gonna do something to me. I was already scared because he was saying that he‟s in a
gang, and that‟s really scary to me.”
       Over defendant‟s objection, the recording of her interrogation by two detectives at
the police station that began at 6:50 that morning was played for the jury. At one point
during the questioning, defendant stated that when Barcenas and Magdaleno returned to


1
  Defendant originally told the police that she went inside the house for the gun but at
trial testified that she had lied in order to protect her boyfriend.


                                               2
the truck “and they‟re like, „Oh I‟m so sorry, I‟m so sorry,‟ I was like, „What the fuck do
you mean you‟re sorry?‟. . . [¶] . . . [¶] . . . I was like „What the hell?‟ I was like, „How
are you gonna say you‟re sorry after you come and beat someone‟s dad not knowing what
the fuck is going on?‟ I was like, „Fuck that.‟ And then they were just like, man. They
were just saying some of this ignorant stuff. They got on my nerves. And then I just shot
the dude. I was like what the hell? Like „cause he was gonna — he was, like, he was
gonna come back outside so I was scared. I was like, „What the hell?‟ I just shot him
cause he was gonna come back and argue with me.” Later in the interrogation: “like
we‟re at the point where I was — where I grabbed — where my hand started shaking.
„Cause like I got mad. Like I got mad and I knew like, I never did nothing to anyone
before. But like they were being really ignorant. Like . . . [¶] . . . I don‟t know why
people. And I usually talk about . . . people being ignorant. But my anger got to me.
[¶] . . . [¶] Like in desperation and I didn‟t want them to come back outside and keep
doing stuff.” When asked why she shot the victim, defendant answered: “Because I was
mad. Like I was telling you I was [upset] (unintelligible) he was saying sorry. And the
more he said sorry the more he got me mad. „Cause like it doesn‟t make sense for you to
come hit somebody and say you‟re sorry and I don‟t know what you‟re doing. I knew he
was like threatening me, and everything. So I was like, „What the hell are you talking
about.‟ That‟s when he was gonna come outside, so I‟m guessing he was gonna do
something to me. So I just shot him. Like I didn‟t want anything to happen to me.”
       Towards the end of the interrogation, defendant volunteered, “It was easily self
defense. That‟s what I chose to do.” This prompted additional questions and then the
following exchange:
       “Q. So you decided to take it into your own hands?
       “A. I blacked out, like honestly my temper is . . .
       “Q. Hey wait, and real quick, just so you understand . . .
       “A. Yeah . . .
       “Q. This blacking out thing is a bunch of garbage. You tell me you black out, but
       you‟ve already told me everything in detail.


                                               3
         “A. No, no, I know in detail. (Crosstalk) In between, my mind at the point, I
         wasn‟t thinking you know?
         “Q. Cause you were so pissed off.
         “A. Ya.
         “Q. Ok, that‟s not self defense. Who told you getting pissed off, grabbing a gun,
         and shooting someone is self defense? Who told you that?”
         In an amended information, defendant was charged with attempted murder (Pen.
Code, §§ 187, 664),2 shooting at an occupied vehicle (§ 246), aggravated mayhem
(§ 205), and mayhem (§ 203). On each charge the amended information alleged that
defendant had personally and intentionally discharged a firearm causing great bodily
injury (§ 12022.53, subd. (d)). As to the attempted murder and shooting at an occupied
vehicle charges, the amended information alleged that defendant had personally inflicted
great bodily injury (§ 12022.7, subd. (b)). The jury found defendant not guilty of
attempted murder but guilty of the lesser offense of attempted voluntary manslaughter, of
shooting at an occupied vehicle and of mayhem.3 The court sentenced defendant to prison
for a term of 27 years to life: the mitigated term of two years on the mayhem conviction
plus 25 years to life for the firearm enhancement. Sentence on the other charges was
imposed and stayed under section 654.4 Defendant has timely appealed.




2
    All statutory references are to the Penal Code unless otherwise indicated.
3
  The aggravated mayhem charge was dismissed on the prosecutor‟s motion after the jury
reported that it could not agree on that charge.
4
  Defendant was sentenced to 28 years to life on the conviction for shooting at an
occupied vehicle (mitigated three-year base term plus 25 years to life for the firearm
enhancement). On the attempted voluntary manslaughter count she was sentenced to
12 years (mitigated three-year base term plus four years for the firearm enhancement and
five years for inflicting great bodily injury). These sentences were stayed pursuant to
section 654.

                                               4
                                         Discussion

1. The recording of defendant’s interrogation was properly admitted.

       Defendant first challenges the admissibility of her recorded statements on which
the prosecution relied in disputing her claim of self defense. The interrogation in which
these statements were made took place in the police station some six to seven hours after
the shooting. Defendant had been taken to the station from the scene and apparently had
been dozing in the interrogation room before the detectives arrived. At the outset one of
the detectives advised defendant of each of her rights specified in the standard Miranda
warning, asking her whether she understood that right and as to each right defendant
responded that she did. Without explicitly asking defendant whether she waived those
rights the detectives proceeded with the questioning and defendant unhesitantly
answered. Defendant‟s in limine motion to exclude her statements made during the
interrogation on multiple grounds, including that the implicit waiver of her Miranda
rights was not made voluntarily and knowingly, was denied5 and a recording of the
interrogation was subsequently played to the jury.
       On appeal, defendant renews her contention that the recording should not have
been admitted because she did not voluntarily and knowingly waive her Miranda rights.
The recording was not admissible unless defendant‟s waiver was voluntary and knowing.
(People v. Duff (2014) 58 Cal.4th 527, 551.) “In reviewing the trial court's denial of a
suppression motion on Miranda and involuntariness grounds, „ “ „we accept the trial
court's resolution of disputed facts and inferences, and its evaluations of credibility, if
supported by substantial evidence. We independently determine from the undisputed
facts and the facts properly found by the trial court whether the challenged statement was
illegally obtained.‟ ” ‟ [Citations.] Where, as was the case here, an interview is recorded,


5
  The court did not rule on the motion before the start of trial because the prosecutor
indicated he did not intend to introduce the recording. The prosecutor subsequently
indicated he did wish to introduce the recording, at which point the court conducted a
hearing under Evidence Code section 402 and denied the motion.


                                               5
the facts surrounding the admission or confession are undisputed and we may apply
independent review.” (Ibid.)
       In arguing that defendant‟s waiver was not voluntary and knowing, defendant
points to the facts that she “was barely 19 years old at the time of the interrogation,” she
had “no prior experience with law enforcement or the criminal justice system,” she “was
emotionally distraught throughout the entire interview and may have been suffering from
shock,” and it is “at best uncertain whether [she] slept or had anything to eat or drink in
the five and a half hours between the time that she was arrested (at approximately 1:30
a.m.) and the time that the interrogation began (at approximately 7:00 a.m.).” However,
despite the characteristics of youth that courts have recognized in the numerous cased
cited by defendant, defendant had graduated from high school and was an adult and
employed at the time of the shooting. Waivers from much younger persons have been
upheld. (E.g., People v. Nelson (2012) 53 Cal.4th 367, 375; People v. Lewis (2001) 26
Cal.4th 334, 384; In re Joseph H. (2015) 237 Cal.App.4th 517, 533.) At the section 402
hearing, one of the interrogating detectives testified that at the time defendant appeared to
be coherent, not “in pain or anything like it,” was not defiant, did not appear hungry and
when asked responded she would like some water that was provided her, and appeared to
understand all the questions that were put to her. After watching the video recording of
the interrogation, the trial court concluded defendant‟s statement “was knowingly,
intelligently, and voluntarily made” and that not “anything that I have in front of me even
approaches [the] level” of a constitutional violation. This court has also watched the
video recording and in the exercise of our independent judgment reaches the same
conclusion. Defendant gave no indication that she did not understand the Miranda rights
that were read to her, and that she said she understood. Although soft-spoken, she appears
to have been fully awake and alert. At no point did defendant indicate any reluctance to
answer the detectives‟ questions. The record contains no evidence that she did not waive
her rights knowingly and voluntarily. There was no error in admitting the recording of
her interrogation.



                                              6
2. The court did not err in failing to excise the detective’s statements from the recording.

       Defendant contends that even if the recording of the interrogation was properly
admitted, the court erred in failing to excise the detective‟s statements near the
conclusion of the interview that the shooting was “not self defense. Who told you getting
pissed off, grabbing a gun, and shooting someone is self defense? Who told you that?”
The issue was raised by the court at the end of the section 402 hearing, leading to an
extended discussion with counsel concerning how the defense might properly respond.
During the exchange defendant‟s attorney indicated that she preferred the remarks to be
stricken. However, the court suggested instructing the jury that the statement was not to
be considered as evidence and counsel stipulated to the following instruction:
“Statements made by police officers while conducting out-of-court interviews are not
evidence. These statements can be viewed as interview techniques and do not express the
personal views or opinions of those police officers.” The stipulation was read to the jury
before the recording of the interview was played, and was repeated in the final jury
instructions, at which point the court added: “So if it‟s a situation with the officers,
something the officers have testified to, do keep in mind what sounds like an opinion
expressed during that interview is not to be considered by you, because of the stipulation,
as an opinion. So I wanted to clarify that point for all of you.” Whether or not the
objection was forfeited by entry of the stipulation, as the Attorney General contends, any
possible prejudice from inclusion of the detective‟s remarks was cured by the court‟s
instruction. (People v. Ervine (2009) 47 Cal.4th 745, 776 [“we presume the jury faithfully
followed the court‟s limiting instruction”].) When the detective who made the statement
during the interrogation testified at trial, he expressed no such opinion. And although the
prosecutor referred to the statement in closing argument, he did so to suggest that the
statement had prompted defendant to change her story, and made no argument that the
detective had expressed an opinion that should be considered. There is no reason to
believe that the jury did not follow the court‟s instruction in this case.




                                               7
3. Defendant’s sentence constitutes cruel and unusual punishment.

       Defendant contends that her sentence of 27 years to life constitutes cruel and
unusual punishment in violation of the state and federal constitutions. “Whether a
punishment is cruel or unusual is a question of law for the appellate court, but the
underlying disputed facts must be viewed in the light most favorable to the judgment.”
(People v. Martinez (1999) 76 Cal.App.4th 489. 496.)
       Defendant acknowledges, and we reiterate, that she must overcome a
“considerable burden” to show that the sentence is disproportionate to her level of
culpability (People v. Wingo (1975) 14 Cal.3d 169, 174). Defendant relies heavily on the
Supreme Court decisions in People v. Dillon (1983) 34 Cal.3d 441(Dillon) and In re
Lynch (1972) 8 Cal.3d 410 (Lynch). These decisions have never been disapproved and
still state the applicable principles of law, although cases finding a sentence to be cruel or
unusual are, as defendant recognizes, “rare.” (People v. Weddle (1991) 1 Cal.App.4th
1190, 1196.) Nonetheless, there are numerous features of this case that are quite unusual.
       The presentencing report from the probation department observed, “Despite the
defendant‟s ineligibility for grant of probation, it is noted that the circumstances of this
case are disturbing. The instant offense occurred because the victim and his friend
interrupted a family party, without invite or welcome. The two men then assaulted the
defendant‟s father, without cause or fear of reprisal from the defendant‟s family, all the
while, yelling at family members in a threatening manner. [¶] When it became evident the
two men may be outnumbered, they returned to their vehicle, at which time the defendant
shot the driver of the vehicle, the victim. The victim and his friend provoked the
defendant, or at the very least, began the altercation by arriving at the defendant‟s home
unwelcome.” In an addendum to the report, the probation officer agreed that a prison
sentence was appropriate, but “also agree[d] with the jurors6 and defense attorney that the
additional consecutive sentencing is extreme for the circumstances of this particular
6
 As indicated below, a majority of the jurors made known to the court that they were
shocked to learn of defendant‟s potential sentence, which they considered extremely
unjust in this case.


                                              8
case.” Although the court imposed the mitigated term of two years on the underlying
offense,7 it held that under section 12022.53, subdivision (d) it was required to add the
mandatory enhancement of 25 years to life for having used a firearm in the commission
of the offense.
       The governing principles established in Dillon and Lynch have been restated
numerous times. They are summarized in People v. Em (2009) 171 Cal.App.4th 964, 972
as follows: “Article I, section 17 of the California Constitution prohibits infliction of
„[c]ruel or unusual punishment.‟ A sentence may violate this prohibition 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.” ‟ (People v. Dillon[, supra,] 34 Cal.3d
[at p.] 47.) [¶] Under the California Constitution, we use a three-pronged test to
determine whether a particular sentence is disproportionate to the offense for which it is
imposed. First, we examine „the nature of the offense and/or the offender, with particular
regard to the degree of danger both present to society.‟ (In re Lynch[, supra,] 8 Cal.3d [at
p.] 425.) Second, we compare the punishment imposed with punishments prescribed by
California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the
punishment imposed with punishments prescribed by other jurisdictions for the same
offense.”8 As stated by the Supreme Court in People v. Hines (1997) 15 Cal.4th 997,
1078: “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


7
 The court explicitly found applicable the mitigating factors that the circumstances of the
offense were unusual and unlikely to recur, that defendant participated in the crime
“under circumstances not of coercion but to a certain extent duress,” that defendant “has
no prior record of criminal conduct,” and that she “acknowledged the wrongdoing at an
early stage in this proceeding.”
8
 People v. Em also recognizes that a sentence is cruel and unusual under the Eighth
Amendment to the United States Constitution if it is “grossly disproportionate.” (171
Cal.App.4th at p. 977.)


                                              9
consider the personal characteristics of the defendant, including age, prior criminality,
and mental capabilities. (People v. Dillon, supra, 34 Cal.3d at p. 479.) If the court
concludes that the penalty imposed is „grossly disproportionate to the defendant's
individual culpability‟ (ibid.), 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.”
       Both in the abstract and in its particulars, defendant‟s offense unquestionably is
serious and dangerous. Mayhem, particularly when committed with a fire arm,
necessarily involves a high risk of harm, and the injury to the victim in this case could not
be more extreme. Moreover, the Attorney General emphasizes that defendant committed
the offense while angry, and when the victim and his friend had returned to their vehicle
and had apologized. Nonetheless, as the jury‟s verdict reflects, this was not an offense
that defendant had calculated. She was provoked, having observed the attack on her
father and heard what she understood as a threat by intruding gang members to return.
She was handed the gun by her boyfriend only moments before using it to shoot the
victim. Defendant undoubtedly over-reacted to the situation, for which she must be
punished, but the offense resulted from a moment of impaired judgment in response to
the victim‟s provocation. There was absolutely no planning involved. The jury found
defendant not guilty of attempted murder and that she shot the victim in the heat of
passion. The court imposed mitigated base terms on all counts. Despite the severity of the
victim‟s injuries, as the Supreme Court recognized in Lynch, “ „there are rational
gradations of culpability that can be made on the basis of injury to the victim.‟ ” (In re
Lynch, supra, 8 Cal.3d at p. 426.) Under the circumstances, defendant‟s culpability is at
the bottom end of the spectrum, despite the serious nature of the victim‟s injuries.
       With respect to the nature of the offender, the sentence imposed under the
mandatory term for the firearm enhancement is far longer than necessary to effectively
punish this particular defendant. “ „Although the determination that a severe punishment
is excessive may be grounded in a judgment that it is disproportionate to the crime, the
more significant basis is that the punishment serves no penal purpose more effectively


                                             10
than a less severe punishment.‟” (In re Lynch, supra, 8 Cal.3d at p. 422, quoting Furman
v. Georgia (1972) 408 U.S. 238, 280.) “This branch of the inquiry therefore focuses on
the particular person before the court, and asks whether the punishment is grossly
disproportionate to the defendant‟s individual culpability as shown by such factors as his
age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon,
supra, 34 Cal.3d at p. 479.) Defendant had just turned 19 at the time of the offense. She
had no prior criminal record, was living with her family and was employed and helping to
support the family. According to the probation report, “the defendant has been a help to
her parents, has graduated high school, has no prior criminal history and had been
working.” Should she be released at any time, the report states, “her goal is to return to
college and study cosmetology.” According to one of her former teachers she “is a girl
with a very high potential in life.” According to another, she “ „was a very hard worker,
very family oriented and talked about her parents and family a lot.‟ The defendant never
got into any fights or had discipline problems at school.” Defendant‟s good character and
general obedience to the law was attested to by numerous reference letters and statements
to the court at the sentencing hearing. The record contains no contrary evidence.
Defendant‟s interview with the probation officer was brief “due to the lack of criminal
behavior by the defendant.” As the jury found in acquitting her of attempted murder, her
state of mind when she committed the offense was not pursuit of an illicit objective, but
agitation caused by her victim‟s provocation. Defendant certainly is not the type of
“criminal[] misusing guns to terrorize, injure and kill their victims” for whom the
mandatory firearm enhancement was intended. (Analysis of Assem. Bill No. 4 (1997-
1998 Reg. Sess.) as amended April 28, 1997.)
       There are at least two aspects of the sentence itself that are significant in
evaluating whether the punishment is cruel or unusual. As was true of the sentence
considered in Dillon, despite the “broad factual spectrum” of circumstances in which
section 12022.53, subdivision (d) may apply, “the Legislature has provided only one
punishment scheme” for the use of a firearm causing death or great bodily injury in the
commission of any of the offenses specified in the statute. (People v. Dillon, supra, 34


                                              11
Cal.3d at p. 477.) And in some of these cases, “this Procrustean penalty may violate the
prohibition of the California Constitution against cruel or unusual punishments.” (Ibid.)
As noted above, the crime here was hardly typical of the gun violence to which the
enhancement statute was primarily directed. Secondly, there is some merit to defendant‟s
contention that she “has been punished more severely for a lesser-related crime
(mayhem) than she could have been punished for the greater crime of attempted
voluntary manslaughter.” The 25-year-to-life enhancement required by section 12022.53,
subdivision (d) does not apply to manslaughter or attempted manslaughter. (§ 12022.53,
subd. (a).) The enhancement was imposed only because the prosecution chose to charge
defendant not only with attempted murder, leading to her conviction of the lesser offense
of attempted manslaughter, but also with mayhem, normally an inevitable consequence of
such a shooting. The situation here may be distinguishable from the facts in People v.
Schueren (1973) 10 Cal.3d 553,9 on which defendant relies, but it is nonetheless true that
involuntary manslaughter is punishable by a sentence of three, six or eleven years (§ 193,
subd. (a)), while mayhem is punishable by a sentence of only two, four, or eight years
(§ 204), yet the mandatory enhancement applies only to the offense with the lower base
term. In that sense, application of the mandatory enhancement to defendant‟s sentence
may fairly be characterized as “unusual” in the constitutional meaning of the term.
(Schueren, pp. 560-561.)
       Moreover, it is also significant that the 27 years to life sentence resulting from the
enhancement is longer than the sentence prescribed under California law for first degree


9
  In Schueren, the Supreme Court held that where a defendant had been convicted of a
lesser included offense under the accusatory pleading test for which the statutory
punishment was greater than for the offense charged, the constitutional proscription
against cruel or unusual punishment prohibited imposition of the longer sentence. Under
the circumstances, the court held, a prison term exceeding the sentence for the offense
charged was “an „unusual‟ punishment.” (People v. Schueren, supra, 10 Cal.3d at p. 560.)
“A statute valid on its face may be unconstitutionally applied [citations] and under the
circumstances of this case a prison term exceeding [the shorter term of the offense
charged] is an unconstitutional application of the penalty provision of that section.” (Id.
at p. 561.)

                                             12
murder (§ 190, subd. (a)), rape of a minor (§ 264, subd. (c)), and many other arguably
more serious offenses involving intentional acts causing extreme harm. “[I]f among [the
criminal penalties prescribed in the jurisdiction] are found more serious crimes punished
less severely than the offense in question, the challenged penalty is to that extent
suspect.” (In re Lynch, supra, 8 Cal.3d at p. 426.)
       While comparison of the penalty imposed by California for the use of a gun
causing harm to the penalty imposed by other states for like conduct is perhaps of limited
significance (see People v. Martinez, supra, 76 Cal.App.4th at p. 498), defendant asserts,
and the Attorney General does not dispute, that as of July 2016, no other state imposes a
similar mandatory enhancement in such a case. At a minimum, “if the challenged penalty
is found to exceed the punishments for the offense in a significant number of [other]
jurisdictions, the disparity is a further measure of its excessiveness.” (In re Lynch, supra,
8 Cal.3d at p. 427.)
       Detailed comparison of the facts in this case with those in which the courts have
rejected claims of cruel and unusual punishment is of limited value. What is significant is
that in most of those cases the court considered the defendant to have engaged in
reprehensible conduct reflecting a disposition to commit other antisocial acts. For
example, in People v. Em, the court considered that the “Defendant has proven himself to
be completely resistant to the rules and structures of civilized society and the criminal
justice system, and to be indifferent to basic social mores. The danger he presents to
society is significant. Defendant committed this crime, not because he was in the wrong
place at the wrong time, but because he has a complete disregard for the rule of law and
lack of respect for human life.” (People v. Em, supra, 171 Cal.App.4th at p. 976.) In
People v. Gonzales (2001) 87 Cal.App.4th 1, 16, “defendants were gang members.”
Although the “youth and incidental criminal history [of one of the defendants were]
factors in his favor,” the “seriousness of the crime and the circumstances surrounding its
commission” indicated that he nonetheless “pose[d] a great danger to society.” (Id. at
p. 17.) In People v. Martinez, supra, 76 Cal.App.4th 489, the defendant was convicted of
attempted murder. After being asked by the victim to leave his store, the defendant told


                                             13
the victim he was going to return and kill him; he left and obtained a .22-caliber rifle
from an acquaintance he told he was going to shoot a person who had disrespected him in
front of his girlfriend; he returned to the store, repeating that he was going to kill the
victim; after firing one shot that missed the victim, he then shot the victim in the stomach.
(Id. at p. 492.) The appellate court observed that the “provocation” there “was
insignificant in comparison to [defendant‟s] response, which was vicious and not rash or
unsophisticated, and that [the defendant] would have continued shooting if his girlfriend
had not been in the way.” (Id. at p. 496.) Based on the circumstances of the offense and
the defendant‟s lack of remorse, the probation report found the 23-year-old defendant to
have “ „a callous disregard for the safety and well-being of others‟ ” whose behavior
“ „must be viewed as extremely violent and dangerous . . . . For the safety of the victim
and community members, the defendant should be removed from the community for an
extended period of time.‟ ” (Ibid.) In People v. Zepeda (2001) 87 Cal.App.4th 1183,
1215, the defendant had “committed an unprovoked murder for the apparent purpose of
establishing himself within a street gang, and to establish the gang‟s strength in the
community.” The defendant had previously been committed to the California Youth
Authority for committing an assault with a deadly weapon, and at the time of the offense
in question he was on parole for a previous drive-by shooting. “His recidivism and the
violence of his past and current offenses warrant[ed] a lengthy sentence.” (Id. at
p. 1216.)10 Thus, with respect to the nature of the offender, a principal consideration in
evaluating whether a sentence is constitutionally excessive, there is a highly significant
difference between the defendant in this case and the defendants in cases in which the 25
year-to-life enhancement has been upheld.

10
   Zepeda and the other California cases are in accord with decisions of the United States
Supreme Court rejecting Eighth Amendment challenges to lengthy sentences applied to
recidivist offenders. (E.g., Ewing v. California (2003) 538 U.S. 11, 29-30 [“Ewing‟s
sentence is justified by the State‟s public-safety interest in incapacitating and deterring
recidivist felons, and amply supported by his own long, serious criminal record.”];
cf. Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive 25 year-to-life sentences
imposed under “three strikes” law not an unreasonable application of clearly established
federal law].)

                                              14
       We recognize, as we must, that “the Legislature determined in enacting section
12022.53 that the use of firearms in commission of the designated felonies is such a
danger that „substantially longer prison sentences must be imposed . . . in order to protect
our citizens and to deter violent crime.‟ ” (People v. Martinez, supra, 78 Cal.App.4th at
p. 497.) We do not question the validity of the enhancement it prescribes in most
situations. Nonetheless, in determining the constitutional permissibility of the sentence in
a particular case, “the ultimate test remains whether the punishment prescribed shocks the
conscience and offends fundamental notions of human dignity.” (Smith v. Municipal
Court (1978) 78 Cal.App.3d 592, 596.) The sentence here did indeed shock the
conscience of most of the jurors who heard all of the evidence,11 and the probation officer
and the trial court also appear to have considered the mandatory 25-year-to-life
enhancement most disturbing. Considering the circumstances leading to the commission
of this offense and the nature of this particular offender, buttressed by the comparison to
other sentences prescribed in California for equally serious offenses and the treatment of
gun use in all other American jurisdictions, we are compelled to conclude that this is one
of those rare instances in which the prescribed penalty does exceed constitutional limits.
       Having determined that defendant‟s 27-year-to-life sentence constitutes cruel and
unusual punishment, we are left with no clear method or standard to determine a
permissible sentence under the circumstances. Defendant‟s crime is a serious offense and

11
   A majority of the jurors came forward at sentencing to state they were “stunned to
learn of the sentencing guidelines for the enhancements they found true,” felt
“ „compelled to offer our strong personal views that the mandated jail time for the gun
and bodily injury enhancements is just plain wrong for this particular case,‟ ” and that
“ „adding a 25-to-life enhancement to the jail time for [the] underlying crimes would not
be justice‟ for the defendant „and it would not do a thing to help the victim.‟ ” Seven
jurors signed a letter to the district attorney stating that they “could not have been more
shocked to learn that our verdict ties the judge‟s hands at sentencing, and that the charges
we convicted Ms. Cuiriz of carry a mandatory minimum sentence of 25 years to life. We
feel betrayed.” Another juror stated he found “the mandatory minimum sentencing
associated with those charges in this specific case to be obscene, truly offensive to what I
consider to be standards of decency and morality. I feel this way after having heard all of
the evidence in the case, after discussing that evidence with the other jurors, and after
delivering the guilty verdicts on the various charges.”

                                             15
undoubtedly justifies stern punishment. Simply striking the 25-year enhancement would
result in a sentence of only two years, which would not adequately reflect the gravity of
defendant‟s offense or the serious nature of the injury that she inflicted. Given our
rejection of the sentence that the trial court imposed under the mayhem count of the
information, we believe that activation of the 12-year sentence the trial court imposed but
stayed for the commission of attempted voluntary manslaughter will do justice to the
public interest in enforcement of the criminal laws while recognizing the defendant‟s
right to avoid excessive punishment. (Cf. Dillon, supra, 34 Cal.3d at p. 489 [modifying
judgment by reducing degree of the crime to murder in the second degree].) This
sentence aggregates the base term for the offense defendant was found to have committed
(§§ 193, subd. (a), 664, subd. (a)) and gives appropriate weight to the statutory
enhancements for defendant‟s personal use of a firearm (§ 12022.5, subd. (a)) and having
inflicted great bodily injury (§ 12022.7, subd. (b)).12
                                         Disposition
       The judgment is modified to vacate the sentence imposed and to vacate the stay
with respect to the sentence imposed by the trial court under count one for attempted
voluntary manslaughter, imprisonment for a term of 12 years. In all other respects the
judgment is affirmed.




12
  In view of this disposition it is unnecessary to consider defendant‟s additional
contention that the sentence imposed by the trial court unreasonably penalizes the
exercise of the Second Amendment right to bear arms.

                                              16
                                 _________________________
                                 Pollak, Acting P.J.

We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




A144351


                            17
Trial court:                            Contra Costa County Superior Court

Trial judge:                            Honorable Trevor White

Counsel for plaintiff and respondent:   Kamala D. Harris and Xavier Becerra,
                                        Attorneys General, Gerald A. Engler, Chief
                                        Assistant Attorney General, Jeffrey M.
                                        Laurence, Senior Assistant Attorney General,
                                        Donna M. Provenzano, Supervising Deputy
                                        Attorney General, and Arthur P. Beever Deputy
                                        Attorney General

Counsel defendant and appellant:        Robert H. Derham and Tiffany J. Gates




A144351



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