Filed 11/7/13 P. v. Hall CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072558

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F00911)

         v.

RICARDO LYNN HALL,

                   Defendant and Appellant.




         In the early morning of January 23, 2010, in Del Paso Heights, 18-year-old
defendant Ricardo Lynn Hall shot victim Mathew Maurizzio twice from three to four feet
away, including fatally in the heart. The circumstances of the shooting were these:
Maurizzio had about $1,000 on him and wanted to buy drugs. When defendant learned
about the money, he and two friends talked about robbing the victim. Defendant, with a
gun in hand, demanded money from the victim. The victim pushed past defendant.
Defendant said the victim had disrespected him, and defendant’s friend yelled at
defendant, “ ‘don’t do that.’ ” Defendant shot the victim anyway.




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       About eight months before defendant shot the victim, defendant told a friend, “he
wanted to know what it felt like to kill somebody,” just after he had unsuccessfully tried
to choke a cat.
       At trial in this case, defendant testified on his own behalf that there had been some
discussion about a drug swap between one of his friends and the victim. The victim
walked past defendant but then stopped. Defendant had a gun in his pocket “in case
something happened.” Defendant’s friend told defendant to give him the gun, and as
defendant pulled it out, he noticed the victim staring at him. The victim started coming at
defendant. Defendant earlier had been told that the victim had a knife, so defendant
thought the victim was going to stab him. Defendant had been stabbed in the past.
       A jury found defendant guilty of first degree murder with the special circumstance
that it was committed during an attempted robbery and found him guilty of attempted
robbery. The jury also found true that defendant committed both crimes by personally
discharging a firearm. The trial court sentenced him to life without the possibility of
parole for the special circumstance murder.
       Defendant appeals, raising two evidentiary issues and two sentencing issues. We
will strike the parole revocation fine and affirm the judgment as modified.
                                       DISCUSSION
                                              I
   The Court Did Not Abuse Its Discretion In Admitting Evidence Defendant Told His
          Friend That He Wanted To Know What It Felt Like To Kill Somebody
                             To Show His Intent To Kill Here
       Defendant contends the court violated his federal constitutional right to a fair trial
when it admitted evidence that eight months before the murder, defendant told his friend
“he wanted to know what it felt like to kill somebody,” just after he had unsuccessfully
tried to choke a cat. The court admitted the evidence as relevant to show defendant’s
intent to kill in this case. We find no abuse of discretion. (See People v. Coffman and

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Marlow (2004) 34 Cal.4th 1, 76 [routine application of state evidentiary law does not
implicate a defendant’s constitutional rights]; People v. Harris (2005) 37 Cal.4th 310,
337 [a trial court’s rulings on admission of evidence are subject to review for abuse of
discretion].)
       Defendant’s statement was “relevant evidence” because it had a “tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” (Evid. Code, §210.) The fact of consequence was defendant’s intent to
kill the victim, because intent to kill was an element of the murder committed here. That
fact of consequence was disputed because in closing argument, defense counsel argued
there were many reasons to believe defendant was not guilty of murder, among them that
defendant did not intend to kill the victim. Defense counsel acknowledged the existence
of defendant’s statement in his closing, but he argued to the jury the evidence was
introduced to evoke “passion against [defendant].”
       Not so, because the trial court’s decision to admit the evidence was also not an
abuse of discretion under Evidence Code section 352. That code section allows a trial
court to “exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” Here, the evidence that defendant tried
to choke a cat to death was mitigated by the relatively benign description of the act at
trial. Namely, defendant’s friend testified only that defendant “caught the cat, he grabbed
the cat and he tried to choke it, and the cat’s stretching his hand and stuff, and he dropped
it. And that’s when the conversation started talking about it.” He added that the cat
scratched defendant, which was when defendant dropped the cat. Without a description
of the context in which defendant’s statement was made, the statement would have made
little sense. The trial court therefore did not abuse its discretion in admitting this
evidence at trial.



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                                              II
               The Trial Court Was Well Within Its Discretion To Exclude
          Evidence Defendant Had Been Stabbed By A Drug Addict In The Past
       Defendant contends the court violated his federal constitutional right to a fair trial
when it excluded state-of-mind evidence that six or seven months prior to the murder,
defendant had been stabbed by a crack addict in the same area where the murder
occurred. The trial court sustained the People’s relevancy objection, stating the
following: “[T]he Court rejects the defense desire to say that since there’s testimony that
the victim was using drugs, that everybody who is associated with drug use is in that
category and that third party threats or violence directed towards the defendant are
admissible in front of the jury.” The trial court was well within its discretion to exclude
this evidence. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 76; People v.
Harris, supra, 37 Cal.4th at p. 337.)
       The case on which defendant relies, People v. Minifie (1996) 13 Cal.4th 1055, is
distinguishable. In Minifie, the defendant (Minifie) had shot a member of the Knight
family in self-defense. He was not prosecuted for the killing. Several years later, he
encountered Tino, an associate of the Knight family and a pallbearer at the deceased’s
funeral, in a bar. Tino challenged Minifie, asking, “ ‘So it was you?’ ” (Id. at p. 1060.)
Tino then punched Minifie, knocking him down, and threatened to hit him with a crutch.
Minifie fired shots at Tino, wounding him and another man. At trial, Minifie claimed he
acted in self-defense. (Id. at pp. 1060-1061.) The trial court excluded evidence that the
Knight family and their associates had an extensive reputation for violence, that Minifie
and his wife had been repeatedly threatened by friends of the Knights, and that associates
of the Knight family killed Minifie’s friend. (Id. at pp. 1061-1063.) On appeal, the
California Supreme Court concluded exclusion of the evidence was prejudicial error. (Id.
at pp. 1060, 1071.) The reputation of the “ ‘Knight crowd’ ” was offered to explain



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Minifie’s state of mind and exclusion of the threats to Minifie limited his essential right
to argue that his actions were justified. (Id. at pp. 1066-1067.)
       This case is distinguishable from Minifie. Here, there was no evidence the past
stabbing involved the victim or any of his associates. As the trial court correctly noted,
the fact that defendant has been stabbed previously by a drug addict in the same
neighborhood did not make all drug addicts in that neighborhood (including the victim)
part of a category of people who stab others. The trial court was well within its discretion
to limit the details of the stabbing.
                                             III
                   Defendant’s Sentence Was Not Cruel And/Or Unusual
       Defendant contends, as he did in the trial court, that his life-without-parole
sentence was cruel and/or unusual punishment under the federal and state Constitutions.
He notes that he was 18 years and three months old at the time of the shooting, and while
an adult, he was still relatively youthful and came from a broken home and had his own
substance abuse problems and untreated mental health issues.1
       The Eighth Amendment to the United States Constitution proscribes “cruel and
unusual punishment.” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108,
117], italics added.) Article I, section 17 of the California Constitution proscribes “cruel
or unusual punishment.” Although this language is construed separately from the federal
constitutional ban on “cruel and unusual punishment” (People v. Carmony (2005) 127
Cal.App.4th 1066, 1085), the method of analysis is similar: the reviewing court
considers “the nature of the offense and/or the offender, with particular regard to the



1      Defendant’s parents were unmarried and his father is incarcerated for murder.
Both his mother’s and father’s parental rights have been terminated, and defendant spent
much of his childhood in and out of group homes. He smoked marijuana and cocaine
daily. At the time of sentencing, defendant had a two-year-old son. Since his
incarceration, defendant has been taking medication for depression.

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degree of danger both present to society”; the comparison of “the challenged penalty with
the punishments prescribed in the same jurisdiction for different offenses”; and the
comparison of “the challenged penalty with the punishments prescribed for the same
offense in other jurisdictions . . . .” (In re Lynch (1972) 8 Cal.3d 410, 425-427, italics
omitted.) We are not required by state or federal law to engage in the second and third
prongs of the analysis. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1198.) The
purpose of this analysis is to determine whether the punishment is “so disproportionate to
the crime for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (Lynch, at p. 424, fn. omitted.)
       Here, the trial court found the sentence of life without parole appropriate, given
that the crime “involve[d] great violence” of shooting the victim “right in the heart,” the
use of a gun that was taken to the scene by defendant, and a defendant who was on
juvenile probation and who had prior juvenile adjudications. The record showed the
following with respect to defendant’s juvenile adjudications: Defendant had
misdemeanor adjudications for unlawfully causing a fire that caused great bodily injury
and for repeatedly falsely identifying himself to police officers. He had felony
adjudications for stealing items from Sears and a grocery store. He had repeated
violations of probation. All of this evidence militates against a finding that defendant’s
sentence was cruel and/or unusual. Added to these facts were additional ones before the
court, including that since his incarceration on this case, defendant had been involved in
31 incidents, with 19 classified as major, including hiding shanks in jail, and three
separate assaults on inmates, one which included a gang-related sexual assault.
       Under these circumstances, we cannot say that a sentence of life without the
possibility of parole for a senseless murder at close range committed by an 18-year-old
who had a prior juvenile record and was on juvenile probation at the time was “so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424.)

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                                            IV
                      The Parole Revocation Fine Must Be Stricken
       Defendant argues, and the People concede, that the judgment must be modified to
strike a $10,000 parole revocation fine that was imposed and suspended pursuant to Penal
Code section 1202.45. “When there is no parole eligibility, the [parole revocation] fine is
clearly not applicable.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.)
Because defendant was sentenced to life in prison without parole, he is not eligible for
parole, and the parole revocation fine must be stricken. (People v. McWhorter (2009) 47
Cal.4th 318, 380.)
                                      DISPOSITION
       The judgment is modified to strike the parole revocation fine. The clerk of the
superior court is directed to prepare an amended abstract of judgment and forward a copy
to the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.



                                                   ROBIE         , J.



We concur:



      NICHOLSON          , Acting P. J.



      DUARTE          , J.




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