Filed 1/3/14 (unmodified version attached)



                                                             CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                                  SECOND APPELLATE DISTRICT


                                             DIVISION FOUR


THE PEOPLE,                                           B245774


        Plaintiff and Respondent,                     (Los Angeles County
                                                      Super. Ct. No. MA047792)
        v.
                                                      ORDER MODIFYING OPINION
JOSE ABUNDIO,                                         AND DENYING PETITION FOR
                                                      REHEARING
        Defendant and Appellant.                      [NO CHANGE IN JUDGMENT]




THE COURT:*
        It is ordered that the petition for rehearing, filed by appellants on January 2, 2014,
is denied; and that the opinion filed herein on December 4, 2013, be modified in the
following particulars:
        At page 2, line 6, of the slip opinion, the sentence, “The jury also found true the
special circumstance allegation that he committed the murder in the commission of a
robbery, and the allegation that he used a knife” is deleted and replaced with the
following:
       “The jury also found true the special circumstance allegation that he committed
       the murder in the commission or attempted commission of a robbery, and the
       allegation that he used a knife.”
       There is no change in the judgment.




__________________________________________________________________
*EPSTEIN, P. J.                    WILLHITE, J.




                                             2
Filed 12/4/13 (unmodified version)
                                CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                       DIVISION FOUR



THE PEOPLE,                                      B245774

        Plaintiff and Respondent,                (Los Angeles County
                                                  Super. Ct. No. MA047792)
        v.

JOSE ABUNDIO,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa M. Chung, Judge. Affirmed.
        Barbara S. Perry, 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, Assistant Attorney General, Lawrence M.
Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and
Respondent.
      In an unprovoked, premeditated attack, appellant Jose Abundio stabbed
marijuana dealer Timothy Wong to death in order to rob him of marijuana
appellant could not afford to buy. After appellant’s first jury deadlocked and a
mistrial was declared, a second jury convicted him of first degree murder. The
jury also found true the special circumstance allegation that he committed the
murder in the commission of a robbery, and the allegation that he used a knife.
(Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), & 12022, subd. (b)(1).)1 The trial
court sentenced him to life in prison without the possibility of parole, plus one
year. On appeal, he contends that his sentence constitutes cruel or unusual
punishment under California Constitution, article I, section 17, and People v.
Dillon (1983) 34 Cal.3d 441 (Dillon), abrogated on other grounds by People v.
Chun (2009) 45 Cal.4th 1172, 1186. We disagree and affirm the judgment.


                                   BACKGROUND
      According to Kourtney Garcia, Timothy Wong’s girlfriend, Wong had been
selling marijuana for about a year before he died. Before the killing, he had sold
marijuana to appellant six or seven times, and there had never been any problem
between them. They called each other by familiar names: appellant was “Joe,”
and Wong was “Timmy.”
      On the night of the killing, December 19, 2009, around 9:00 p.m., appellant
was with three friends, Josue Hernandez, Felix Martinez, and John Bowen,
watching television at Bowen’s house on 171st Street in Lake Los Angeles.
Appellant borrowed Hernandez’s cell phone, walked around the corner of the
house, and made three to five phone calls. He then erased the numbers he had
dialed.

1
      All further statutory references are to the Penal Code.
                                              2
      Hernandez saw a white sedan pull up and stop in front of Bowen’s house.
Appellant walked out to the car and returned to the house about ten minutes later.
The car drove away.
      The white car observed by Hernandez was Wong’s. According to Garcia,
Wong received a phone call from appellant asking to buy marijuana. After Wong
and Garcia obtained the marijuana, Wong received another phone call from
appellant, and placed it on speaker phone. Wong said, “I got it,” named a price,
and said he would be there soon. Appellant said, “Don’t trip about the price. Just
come over.”
      Wong and Garcia drove to Bowen’s house on 171st Street. Appellant came
out to the car and stood by the passenger side where Garcia was seated. After
appellant and Wong discussed the price, appellant said he needed to get change.
Although Wong told appellant that he had change, appellant insisted that he needed
to go down the street to get change and would arrange to meet Wong later.
Appellant also repeatedly asked Wong if Garcia would be present at a later
meeting. Further, although Wong and appellant had never hung out socially
before, appellant asked Wong if he wanted “to hang out and kick it and drink and
smoke.” Wong declined because his family was visiting.
      According to Hernandez, when appellant returned to Bowen’s house, he
said, “I’m going to kill them.” He added that he wanted to get marijuana and was
going to get more than he could afford. Hernandez thought that appellant was
joking. Bowen overheard appellant tell Martinez that he was going to jump
“Timmy” for marijuana. Bowen did not take appellant seriously and told appellant
it was stupid.
      Appellant asked Bowen if he could borrow some gloves. Bowen gave him a
pair of black wool gloves. Bowen did not consider the request unusual, because

                                         3
appellant had borrowed his clothing before. Appellant then asked Bowen to drive
him someplace using Bowen’s girlfriend’s car. Hernandez, Martinez, Bowen, and
appellant got in the car, and appellant gave Bowen directions. At first appellant
said he wanted to go to the store to get snack food, but while they were driving,
appellant said he wanted to go to Wong’s to buy marijuana. Bowen asked, “You
are not going to do anything, right?” Appellant said he was not and that he was
going to “buy a 40,” which Bowen assumed meant $40 worth of marijuana.
Hernandez and Bowen did not see appellant with a knife.
      After driving for about 15 minutes, they arrived at a house. Appellant asked
Hernandez to get out of the car with him and told Bowen to park the car down the
street. Hernandez and appellant got out of the car, and Bowen drove down the
street with Martinez and parked.
      Appellant borrowed Hernandez’s phone and made a call. Wong came out of
the house, and appellant introduced him to Hernandez as “Timmy.” Wong told
appellant that he had “the stuff” and directed him to walk over to Wong’s car,
which was parked in the driveway. Wong walked behind and to the right of
Hernandez, and appellant walked to Wong’s right. There was no argument,
confrontation, or dispute between appellant and Wong.
      As they were walking, Hernandez noticed a glint of light, turned, and saw
appellant jump on Wong’s back. Appellant’s arm was wrapped around Wong so
that his arm and hand were in front of Wong. Wong started screaming, “Take it.
Just take it.” They fell to the ground, and Wong screamed, “Call the cops.” After
they fell on the ground, appellant was on top of Wong and appeared to punch
Wong in the back about five times. Hernandez heard a gurgling sound.
      Hernandez ran to Bowen’s car, got in, and told Bowen that “something bad”
had happened. Bowen asked what he meant, and Hernandez said that he thought

                                         4
appellant stabbed Wong. Hernandez told Bowen they should leave. Bowen started
to turn the car around to pick up appellant, but they worried that appellant might
stab them. They returned to Bowen’s house without appellant.
         Hernandez and Martinez went to their homes. Bowen went inside his house
and told his family and girlfriend what had happened. Before Bowen could call the
police, officers arrived at the house. Bowen told them what happened.
         According to Garcia, after leaving the house on 171st Street, she and Wong
went to Wong’s house, where they had dinner with Wong’s family. During dinner,
Wong received a call on his cell phone and told the caller he would go outside.
While still talking on the phone, Wong walked outside with his dog.
         After Wong walked outside, Garcia heard Wong screaming, a dog barking,
and car tires screeching. Garcia ran outside and saw Wong bleeding from his neck
and chest, screaming for help and saying, “That fool stabbed me. I can’t believe
it.” Wong fell to the ground. His brother asked who did it, and Wong said it was
“Joe.”
         Wong died of multiple stab wounds. An autopsy revealed that he suffered
three stab wounds to his back, three to the back of his neck, and one to his
abdomen. Wong also had defensive wounds on his hand from trying to divert the
knife.
         Detective Steve Owen and his partner responded to Wong’s house and spoke
to Garcia, who directed them to Bowen’s house on 171st Street. Around 2:00 a.m.
that night, Detective Owen was outside his car on 171st Street when he saw
appellant walking toward him with his hands raised. Appellant said, “I’m sorry. I
did something really bad and wrong. I’m sorry and I’m scared.”
         Appellant was interviewed at the sheriff’s station by Detectives Troy Ewing
and J. Leslie. A recording of the interview was played at trial. After waiving his

                                           5
rights under Miranda v. Arizona (1966) 384 U.S. 436, appellant stated, “I didn’t
really mean to do it but when I did it, I – I couldn’t believe I did it ‘cause I was just
– I was shocked, I was scared, I ran.” Detective Leslie asked appellant if he went
home after it happened, and he replied, “No. I was out and running around ‘cause I
didn’t know what to do. I was – I didn’t even believe I did – that I even did it
myself. I was just scared. I didn’t even – I didn’t mean to hurt anybody.”
         Appellant told the detectives that he had contacted Wong to buy an ounce of
marijuana, but he did not have the money to pay for it, so he planned to take it.
When Wong came to Bowen’s house with the marijuana, appellant was unable to
take the marijuana because Garcia was in the car. Therefore, appellant lied and
told Wong he needed to get change for a $100 bill. Appellant then decided to go to
Wong’s house and steal the marijuana from him. He told Hernandez and Martinez
his plan, but he did not tell Bowen. He intended to beat Wong up to take the
marijuana, so he took a knife from his mother’s kitchen, hid it outside his house,
and retrieved it when they left for Wong’s house. He concealed it in his
waistband. Hernandez and Martinez knew he had the knife, but they did not know
he was going to kill Wong.
         Appellant said that he panicked after stabbing Wong, but he chased Wong
and continued to stab him. He did not know how many times he stabbed him.
Detective Leslie asked appellant if he wanted to kill Wong, but appellant replied,
“No. I didn’t – no. I wouldn’t do nothing like that. I just wanted to get some
bud.”
         After the stabbing, appellant ran away and took some clothes he found
hanging on a fence. He discarded his bloody clothing and the one remaining
glove.



                                            6
                                    DISCUSSION
      In People v. Dillon, supra, 34 Cal.3d at page 488, relying on the peculiar
circumstances of the case, the California Supreme Court held that a life sentence
imposed for felony murder on an “unusually immature” 17-year-old high school
pupil who killed in the belief that he was acting in self defense constituted cruel
and unusual punishment under the state constitution. In the instant case, relying on
Dillon, appellant filed a motion to strike the special circumstance finding.
Reviewing the totality of the circumstances as mandated by Dillon, and examining
the individual characteristics of appellant and his crime, the court denied the
motion, reasoning as follows:
      “In making my decision, . . . I recognize factually that there are some factors
here that are sympathetic for [appellant]. I don’t think . . . he was mentally
retarded or had any psychological problems, but he certainly seemed somewhat
immature perhaps both intellectually and emotionally [and] [h]e did come forward
fairly immediately in terms of admitting his involvement [and] gave a fairly
straightforward confession. . . . The Dillon case did have some similarities in that
it did concern . . . marijuana. It was a raid on the marijuana farm, but there are
some differences here that concern me. That particular defendant [in Dillon] . . .
testif[ied], [and] the heart and issue in that case was a self-defense type situation
because he believed that the victim in that case was pointing a gun at him.
      “What concerns me here is when I consider the specific facts of this case,
one could easily make an argument that, separate from the felony murder theory,
which can result in murder even if it is accidental or negligent, we don’t have . . .
something that was accidental or negligent. . . . [I]t falls higher on the
premeditation level in that there was an earlier contact. He had an opportunity in
terms of bringing the knife. He sought out the victim at his house, with his family

                                           7
and relatives, and the actual incident occurred involved multiple stabbings. So
there was a higher level of premeditation.
      “I recognize his youth, that he was 18 years old. But in terms of making –
exercising this discretion, the case law is clear. It is not a situation of sympathy or
whether we feel it is too harsh. . . . [The issue is] does it rise to the level of being
cruel and unusual under state or federal grounds.”
      The court next considered appellant’s prior record, which showed two
contacts as a juvenile (one for truancy, the other for being a runaway) and a
sustained juvenile petition for assault with a stun gun (§ 244.5, subd. (b)), for
which he was placed home on probation. The court characterized appellant’s
juvenile history as “somewhat minor,” but noted that on a prior occasion he had
brought a stun gun to school, thus suggesting that the instant case was a “severe
escalation of behavior.” The court concluded that “under the totality of the
circumstances and taking into account the particularized facts of the case and
[appellant] as an individual, the court declines to exercise its discretion to strike the
special circumstance finding.”
      Appellant contends that the trial court erred, because his sentence constitutes
cruel or unusual punishment under the Dillon analysis. We disagree.
      “‘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. [Citations.]’ [Citation.] Cruel and unusual punishment
is prohibited by the Eighth Amendment to the United States Constitution and
article I, section 17 of the California Constitution. Punishment is cruel and unusual
if it is so disproportionate to the crime committed that it shocks the conscience and
offends fundamental notions of human dignity. [Citation.]” (People v. Mantanez
(2002) 98 Cal.App.4th 354, 358, fns. omitted.)

                                            8
      “‘To determine whether a sentence is cruel or unusual under the California
Constitution as applied to a particular defendant, a reviewing court must examine
the circumstances of the offense, including 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 his or her age, prior criminality, and
mental capabilities. [Citation.] If the penalty imposed is “grossly disproportionate
to the defendant’s individual culpability” [citation], so 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. Gonzales (2012) 54 Cal.4th 1234, 1300.)
      Dillon was a unique case. Defendant Dillon was a 17-year-old high school
student who attempted to steal marijuana from a nearby farm. After he was
rebuffed several times by the shotgun-wielding owner of the farm, he recruited
friends and made plans to steal the marijuana. They intended to hit the owner or
tie him to a tree. The boys armed themselves with shotguns, a baseball bat, sticks,
and a knife, and the defendant carried a semi-automatic rifle. After one of the
eight boys accidentally discharged his shotgun twice, the owner approached
carrying a shotgun. Dillon shot him nine times, killing him.
      At trial, Dillon testified that when he heard his friend’s shotgun discharge
the first time, he became afraid that his friend might have been shot, and he
panicked after hearing the second shotgun blast. He further testified that he shot
the victim only because he was afraid the victim was going to shoot him. He
described how he saw the victim swing the gun around toward him. Further, a
clinical psychologist testified that Dillon was immature intellectually, socially, and
emotionally.

                                           9
      During jury deliberations, the jurors asked why the psychologist’s testimony
was admitted if Dillon was being tried as an adult and whether, even if the killing
occurred during an attempted robbery, they could return a verdict of second degree
murder or manslaughter. Ultimately, the jury convicted the defendant of attempted
robbery and first degree murder. Before discharging the jurors, the trial judge
“expressed sympathy with their evident reluctance to apply the felony-murder rule
to these facts.” (Dillon, supra, 34 Cal.3d at p. 484.) After the prosecutor advised
the jury that their observations about the case would be welcomed, the jury
foreman wrote a letter, stating that it was difficult for the jury not to allow
compassion to influence its verdict because the defendant “‘by moral standards is a
minor.’” (Ibid.) The judge sentenced Dillon to the Youth Authority rather than
state prison, reasoning that he was immature in many respects, was not dangerous
compared to other people convicted of first degree murder, and had no criminal
record. The judge further reasoned that the evidence showed that he did not intend
to kill the victim and that it “‘was not a planned, deliberate killing.’” (Id. at p.
486.) However, at the time of the offense a minor convicted of first degree murder
was ineligible for commitment to the Youth Authority, and therefore the court of
appeal issued a writ of mandate directing the trial court to set aside the
commitment. Thereafter, the trial court sentenced Dillon to life imprisonment.
      On appeal, the California Supreme Court concluded that Dillon’s life
sentence violated the California constitutional prohibition against cruel or unusual
punishment. (Dillon, supra, 34 Cal.3d at p. 489.) Citing the jury’s questions, the
judge’s comments, and the jury foreman’s letter (id. at pp. 482-484), the court
reasoned that the trial judge and jury “gave defendant’s testimony large credence
and substantial weight.” The court further found that the evidence supported the
judge and jury’s apparent belief “that a sentence of life imprisonment as a first

                                           10
degree murderer was excessive in relation to defendant’s true culpability.” (Id. at
p. 487.)
      The court characterized the evidence as follows: “[A]t at the time of the
events herein defendant was an unusually immature youth. He had had no prior
trouble with the law, and . . . was not the prototype of a hardened criminal who
poses a grave threat to society. The shooting in this case was a response to a
suddenly developing situation that defendant perceived as putting his life in
immediate danger. To be sure, he largely brought the situation on himself, and
with hindsight his response might appear unreasonable; but there is ample evidence
that because of his immaturity he neither foresaw the risk he was creating nor was
able to extricate himself without panicking when that risk seemed to eventuate. [¶]
Finally, the excessiveness of defendant’s punishment is underscored by the petty
chastisements handed out to the six other youths who participated with him in the
same offenses.” (Dillon, supra, 34 Cal.3d at p. 488.)
      Appellant’s case is markedly distinguishable from Dillon. True, at age 18
appellant was only one year older than Dillon. But he had reached the age of
adulthood, and, although the trial court observed that appellant “seemed somewhat
immature perhaps both intellectually and emotionally,” nothing in the record
suggests that he manifested the unusual immaturity shown by Dillon. Indeed,
whereas a clinical psychologist testified that Dillon was immature intellectually,
socially, and emotionally, no such testimony was presented here. Moreover, unlike
Dillon, who had no prior record, defendant had a sustained juvenile petition for
assault with a stun gun. As the trial court observed, the instant case reflected a
significant escalation in violent criminality.
      Contrary to appellant’s suggestion, appellant’s plan demonstrated nothing of
the immature, nonlethal grandiosity suggested by Dillon’s intended scheme.

                                          11
Appellant’s plan was simple and straightforward: he was going to rob Wong of
marijuana and (as he told Hernandez) kill him. After Garcia’s presence in Wong’s
car outside Bowen’s house foiled appellant’s first robbery plan, he settled on
another, in which he would lure Wong from his house, rob him at knife point in the
street, and kill him. He obtained a knife, hid it in front of his house, later retrieved
it, and hid it in his waistband before he had Bowen drive him to Wong’s house. In
committing the murder, he viciously stabbed Wong without provocation three
times in the back, three times in the back of the neck, and once in the abdomen.
Wong was unarmed and pleaded for appellant to simply take the marijuana. His
only resistance, as shown by defensive wounds on his hand, was an ineffectual
attempt to ward off the knife. Obviously, unlike Dillon, appellant did not act
rashly in “response to a suddenly developing situation that [he] perceived as
putting his life in immediate danger.” (Dillon, supra, 34 Cal.3d at p. 488.) Rather,
he intentionally attacked and killed Wong by planned subterfuge.
      Appellant notes that first trial resulted in a hung jury, and argues that this
circumstance is analogous to the jury in Dillon expressing regret about a first
degree murder verdict required by the felony murder rule. However, the record
does not suggest that the first jury in appellant’s case, like the jury in Dillon, was
reluctant to convict because it believed that appellant was “‘by moral standards . . .
a minor.’” (Dillon, supra, 34 Cal.3d at p. 484.) To the contrary, as we have noted,
appellant was an adult and there was no evidence of unusual immaturity.
      Although acknowledging that he was 18 years old at the time of the offense
and therefore not a juvenile, appellant attempts to rely on the United States
Supreme Court’s decisions in Graham v. Florida (2010) 560 U.S. 48 and Miller v.
Alabama (2012) 132 S.Ct. 2455, which addressed the constitutionality of sentences
of life without the possibility of parole in juvenile cases. On this issue, we find our

                                           12
prior decision in People v. Argeta (2012) 210 Cal.App.4th 1478 instructive. There,
the defendant similarly tried to rely on Graham and Miller, arguing that he
committed the offense of first degree murder only five months after his 18th
birthday. We rejected his argument, explaining that, “while ‘drawing the line at 18
years of age is subject . . . to the objections always raised against categorical rules,
[that] is the point where society draws the line for many purposes between
childhood and adulthood.’ [Citations.] Making an exception for a defendant who
committed a crime just five months past his 18th birthday opens the door for the
next defendant who is only six months into adulthood. Such arguments would
have no logical end, and so a line must be drawn at some point. We respect the
line our society has drawn and which the United States Supreme Court has relied
on for sentencing purposes, and conclude Argeta’s sentence is not cruel and/or
unusual under Graham, Miller, or Caballero.” (Id. at p. 1482.) Pursuant to
Argeta, we conclude that appellant’s sentence is not cruel and/or unusual under
Graham and Miller.
      “It is a rare case that violates the prohibition against cruel and/or unusual
punishment.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072.) This is
not that rare case. The planning in which appellant engaged, as well as the
unprovoked and vicious nature of the crime lead us to conclude that appellant’s
sentence is not grossly disproportionate to the nature of the offense or to
appellant’s culpability.




                                           13
                   DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION




                                 WILLHITE, J.




We concur:




EPSTEIN, P. J.




MANELLA, J.




                            14
