Filed 12/2/15 P. v. Jimenez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C074048

                   Plaintiff and Respondent,                                     (Super. Ct. No. 08F07560)

         v.

TONY SALVADORE JIMENEZ, JR.,

                   Defendant and Appellant.




         A jury found defendant Tony Salvadore Jimenez, Jr., age sixteen, guilty of one
count of discharging a firearm at an inhabited dwelling (Pen. Code, § 246; count one)1
and two counts of assault with a semi-automatic firearm (§ 245, subd. (b); counts two
[Michael Ramirez] & three [Walter Bivins].) The jury also found true allegations that all
of the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd.




1   Further undesignated statutory references are to the Penal Code.

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(b)(1)), defendant was a principal in count one and during the commission of that offense
a principal personally used and intentionally discharged a firearm, causing great bodily
injury (§12022.53, subds. (b), (c), (d), (e)(1)), and defendant personally used a semi-
automatic handgun in the commission of counts two and three (§ 12022.5, subd. (a)).
The jury found not true a great bodily injury allegation in connection with count two
(§ 12022.7, subd. (a)).
       Defendant was sentenced to an aggregate term of 28 years to life in state prison,
consisting of the low term of three years on count one, plus a mandatory 25 years to life
for the firearm enhancement for count one, a concurrent six years on count two, plus four
years for the gun enhancement for count two, and a concurrent six years on count three,
plus four years for the gun enhancement on count three.2 The trial court stayed
defendant’s sentence on the gang enhancement as to all counts.
       Defendant appeals, contending his sentence constitutes cruel and unusual
punishment under federal and state court precedent, specifically Miller v. Alabama
(2012) 567 U.S. ___ [183 L.Ed.2d 407] (Miller), Graham v. Florida (2010) 560 U.S. 48
[176 L.Ed.2d 825] (Graham), and People v. Caballero (2012) 55 Cal.4th 262
(Caballero), and is grossly disproportionate to his offenses. We shall conclude that
defendant’s sentence is not cruel and unusual under Miller, Graham, and Caballero


2   Defendant initially was sentenced to an indeterminate term of 40 years to life in state
prison, consisting of 15 years to life on count one (§§ 246, 186.22, subd. (b)(4)(D)), and
25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). In an earlier appeal,
we affirmed the judgment but vacated the sentence, finding the trial court erroneously
imposed both a 15-year-to-life term for the gang enhancement and a 25-year-to-life term
for the firearm enhancement on count one. (People v. Jimenez (Oct. 24, 2012, C065269)
[nonpub. opn.].) This appeal arises from defendant’s resentencing.

   Defendant requests we take judicial notice of the reporter’s and clerk’s transcripts in
People v. Jimenez, case No. C065269, as well as our prior nonpublished opinion in
People v. Jimenez (Oct. 24, 2012, C065269). The Attorney General joins in the request.
The request is granted. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

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because he will be eligible for parole in his early 40’s, and that his punishment fits the
crimes and the criminal. Accordingly, we shall affirm.
                            FACTUAL BACKGROUND3
       On the night of July 15, 2007, defendant and several other young males arrived at
a house party uninvited. They identified themselves as “Diamonds” or “Norteños” and
began harassing people at the door and otherwise tried to control the party. When asked
to leave, the young men, including defendant, fired guns at, toward, or in the vicinity of
the house, while surrounded by innocent partygoers. In addition, defendant pointed his
gun at victim Bivins and tried to shoot, but the gun jammed. Defendant also shot towards
victim Ramirez, who was struck in the leg and suffered a through-and-through bullet
wound. At the time of the events at issue, defendant was 16 years old and a member of
the Varrio Diamonds subset of the Norteño street gang.
       In his sentencing brief, defendant, through his attorney, asked the court “to
consider staying any life sentence altogether, and impose a reasonable determinate
sentence” in light of “the recent series of cases (decided after [his] original sentencing)
[(namely Miller, Graham, & Caballero)],” arguing that “[a]n unduly lengthy sentence
imposed against a defendant who was 16 years old at the time of the crime (particularly a
non-homicide offense), may be considered cruel and unusual punishment in violation of
the Eighth Amendment to the United States Constitution.” Alternatively, defendant
requested the court consider imposing an aggregate term of 28 years to life, consisting of
the low term of three years on count one, plus a consecutive term of 25 years to life for
the gun enhancement and stay his sentences on the remaining counts and enhancements.
       After indicating that it had reviewed defendant’s trial brief and various
attachments thereto, the trial court sentenced defendant to an aggregate term of 28 years



3  Consistent with the parties, the facts are taken from our prior nonpublished opinion in
People v. Jimenez (Oct. 24, 2012, C065269).

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to life, consisting of the low term of three years on count one, plus a mandatory 25 years
to life for the firearm enhancement for count one. The court imposed concurrent terms
on counts two and three, and the gun enhancements appended thereto, and stayed
defendant’s sentence on the gang enhancement as to all counts. The court also awarded
defendant 1,886 days of actual time and 282 days of good time, for a total of 2,168 days.
The trial court acknowledged that the sentence it imposed was “harsh” but stated that “it
obviously does not fall within the category of a cruel and unusual sentence.” The court
further observed that while defendant’s trial counsel made “some very compelling points
as to why [defendant] should be potentially released earlier than the date that I set,” it
noted that its “authority is somewhat restricted in terms of the mandatory sentencing
laws.”
                                        DISCUSSION
         Defendant first contends that his sentence constitutes cruel and unusual
punishment under the Miller-Graham-Caballero line of precedent. We disagree.
         In Graham, the United States Supreme Court banned outright life without parole
sentences for juveniles convicted of nonhomicide offenses. (Graham, supra, 560 U.S. at
p. 74.) As stated in Graham: “[D]efendants who do not kill, intend to kill, or foresee that
life will be taken are categorically less deserving of the most serious forms of punishment
than are murderers.” (Id. at p. 69.) The court concluded that a juvenile convicted of a
nonhomicide offense must be given “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” (Id. at p. 75.)
         In Miller, the United States Supreme Court held that mandatory terms of life
without the possibility of parole (LWOP) are unconstitutional in the case of juveniles
even in cases involving homicides. (567 U.S. ___ [183 L.Ed.2d at p. 424].)
         In Caballero, the California Supreme Court held that the proscription in Graham
against life without parole for nonhomicide offenses applied equally to sentences that
were the functional equivalent of a life without parole sentence. (Caballero, supra, 55

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Cal.4th at p. 268.) “Sentencing a juvenile offender for a nonhomicide offense to a term
of years with a parole eligibility date that falls outside the juvenile offender’s natural life
expectancy constitutes cruel and unusual punishment in violation of the Eighth
Amendment.” (Ibid.)
       Here, according to the abstract of judgment, defendant was 22 years old at the time
of (re)sentencing. He received a sentence of 28 years to life, with credit for 2,168 days;
the credit equates to nearly 6 years. Thus, defendant will be eligible for parole when he
is approximately 44 years old, calculated by deducting the 2,168 days of credit from a 28-
year term. That is well within his natural life expectancy.4 (See People v. Perez (2013)
214 Cal.App.4th 49, 58 [sentence of 30 years to life for a 16-year-old juvenile offender
did not violate the Eighth Amendment where he would be eligible for parole when he
reached the age of 47].)
       Moreover, pursuant to section 3051, subdivision (b)(3), defendant will be eligible
for parole during his 25th year of incarceration.5 Section 3051, subdivision (b)(3)
provides: “A person who was convicted of a controlling offense that was committed
before the person had attained 18 years of age and for which the sentence is a life term of
25 years to life shall be eligible for release on parole by the board during his or her 25th
year of incarceration at a youth offender parole hearing, unless previously released or



4   According to the Social Security Administration’s Actuarial Life Table, available at
<http://www.socialsecurity.gov/OACT/STATS/table4c6.html> (as of Nov. 23, 2015), at
the time of sentencing defendant had a life expectancy of slightly over 77 years.
5  The issue of whether section 3051, which includes provisions for a parole suitability
hearing after a maximum of 25 years for most juvenile offenders serving life sentences,
rendered moot any claim that such a sentence violates the Eighth Amendment is currently
pending before the California Supreme Court. (See In re Alatriste (2013) 220
Cal.App.4th 1232, review granted Feb. 19, 2014, S214652 & S214960.) If not, the issue
becomes whether section 3051 is unconstitutional pursuant to the Eighth Amendment.
Defendant makes no such claim.

                                               5
entitled to an earlier parole consideration hearing pursuant to other statutory provisions.”
Assuming section 3051, subdivision (b)(3) remains in effect, defendant will be eligible
for parole when he is approximately 41 years of age, calculated by deducting 2,168 days
from a 25-year term.
       Under either scenario, defendant will be eligible for parole well within his natural
life expectancy. Accordingly, his sentence does not constitute cruel and unusual
punishment under the Miller-Graham-Caballero line of cases.
       Defendant next contends that his sentence of 28 years to life is “ ‘grossly
disproportionate’ ” to his crimes. Again, we disagree.
       “The California Constitution’s prohibition of cruel or unusual punishment . . .
prohibits imposing a criminal sentence which is ‘so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.’ [Citations.]” (People v. Johnson (2010) 183 Cal.App.4th 253, 296
(Johnson); see In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); People v. Dillon (1983) 34
Cal.3d 441, 478; Cal. Const., art. I, § 17.) Under California law, a defendant “must
demonstrate his punishment is disproportionate in light of (1) the nature of the offense
and the defendant’s background, (2) the punishment for more serious offenses, or (3)
punishment for similar offenses in other jurisdictions.” (In re Nuñez (2009) 173
Cal.App.4th 709, 725 (Nuñez).) We consider the totality of the circumstances
surrounding the commission of the offenses in undertaking this three-pronged analysis.
(People v. Meneses (2011) 193 Cal.App.4th 1087, 1092.) The defendant “need not
establish all three factors – one may be sufficient [citation], but the [defendant]
nevertheless must overcome a ‘considerable burden’ to show the sentence is
disproportionate to his level of culpability [citation]. As a result, ‘[f]indings of
disproportionality have occurred with exquisite rarity in the case law.’” (Nuñez, supra,
173 Cal.App.4th at p. 725.)



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        Our inquiry “commences with great deference to the Legislature. Fixing the
penalty for crimes is the province of the Legislature, which is in the best position to
evaluate the gravity of different crimes and to make judgments among different
penological approaches. [Citations.] Only in the rarest of cases could a court declare that
the length of a sentence mandated by the Legislature is unconstitutionally excessive.
[Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) “The choice of
fitting and proper penalties is not an exact science, but a legislative skill involving an
appraisal of the evils to be corrected, the weighing of practical alternatives, consideration
of relevant policy factors, and responsiveness to the public will; in appropriate cases,
some leeway for experimentation may also be permissible. The judiciary, accordingly,
should not interfere in this process unless a statute prescribes a penalty ‘out of all
proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate
the prohibition against cruel or unusual punishment.” (Lynch, supra, 8 Cal.3d at pp. 423-
424.)
        Defendant was sentenced to the low term of three years for discharging a weapon
at an inhabited dwelling, and his sentence was enhanced with a mandatory consecutive
term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1) based on
the jury’s findings that a principal in the commission of the offense personally and
intentionally discharged a firearm and proximately caused great bodily injury to a person
other than an accomplice, and the offense was committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)).6 Defendant’s sentences on the remaining counts and
enhancements were either run concurrent to his sentence on count one or stayed.



6  Section 12022.53, subdivision (d) provides in pertinent part: “Notwithstanding any
other provision of law, any person who, in the commission of a felony specified in . . .
Section 246, . . . personally and intentionally discharges a firearm and proximately causes
great bodily injury . . . to any person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state prison for 25 years to life.”

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       Defendant does not contend that his 28 years to life sentence is disproportionate to
the punishment for more serious offenses, or the punishment for similar offenses in other
jurisdictions.7 Instead, he limits his argument to the first factor, which requires “an
examination of ‘the nature of the offense and/or the offender, with particular regard to the
degree of danger both present to society.’” (Dillon, supra, 34 Cal.3d at p. 479, quoting
Lynch, supra, 8 Cal.3d at pp. 425.)
       When examining the nature of the offense, we “consider not only the offense in
the abstract -- i.e., as defined by the Legislature -- but also ‘the facts of the crime in
question’ [citation] -- i.e., the totality of the circumstances surrounding the commission
of the offense in the case at bar, including such factors as its motive, the way it was


Section 12022.53, subdivision (e) (1) further provides that “[t]he enhancements provided
in this section shall apply to any person who is a principal in the commission of an
offense if both of the following are pled and proved: [¶] (A) The person violated
subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any
act specified in subdivision (b), (c), or (d).”
7   In conjunction with his earlier argument, defendant asserts that the sentence is
disproportionate because under section 1170, subdivision (d)(2), juveniles serving an
LWOP sentence are eligible to petition for recall of the sentence after serving 15 years of
the life sentence, while someone like him, who is serving an indeterminate non-LWOP
sentence “has no such recourse to the courts to petition for recall of his sentence until
expiration of the 30-year term.” Defendant claims that as a result “that sector of the
juvenile population that has committed offenses serious enough to result in LWOP terms
is afforded more favorable prospects for discretionary reduction of their sentences to take
into account their youth than juveniles with lengthy, albeit not LWOP, indeterminate
terms.” As a practical matter, even if defendant were permitted to petition for recall of
his sentence after 15 years, the court would not have any discretion to reduce it insofar as
he received the shortest possible term allowed under the applicable law (the low term of
three years on count one and a mandatory consecutive 25 years to life for the gun
enhancement). Moreover, unlike “that sector of the juvenile population that has
committed offenses serious enough to result in LWOP,” defendant is eligible for release
on parole during his 25th year of incarceration under section 3051, subdivision (b)(3).
That defendant may not petition for recall of his sentence after 15 years pursuant to
section 1170, subdivision (d)(2) does not make his sentence disproportionate to those
who commit more serious offenses as defendant appears to suggest.

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committed, the extent of the defendant’s involvement, and the consequences of his acts.”
(Dillon, supra, 34 Cal.3d at p. 479.) Our inquiry into the nature of the offender “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.” (Ibid.)
       As defendant concedes, “the crime of which he was convicted was a serious one,
with the potential for injury.” In mitigation, he notes that “no one was killed,” “the jury
specifically found that [he] had not personally inflicted great bodily injury on anyone,”
and “the jury never found that he was personally culpable for discharging a firearm at an
inhabited dwelling.” What defendant fails to mention, however, is that the crime of
which he was convicted involved defendant and fellow gang members brandishing and
discharging firearms in very close proximity to innocent partygoers after being asked to
leave a party to which they had not been invited. While the jury found that defendant did
not personally inflict great bodily injury on anyone, he participated in the events that
resulted in an innocent partygoer receiving a through-and-through bullet wound to his
leg. Moreover, while the jury did not find that defendant was personally culpable for
discharging a firearm at an inhabited dwelling, his participation was not passive. The
jury found him guilty of two counts of assault with a firearm and found true allegations
he personally used a semiautomatic handgun in the commission of those offenses.
Defendant’s conduct demonstrated a reckless disregard for the lives of the innocent
partygoers. That “no one was killed” or that more people were not injured during the
incident was dumb luck.
       Turning to the nature of the offender, while defendant was 16 years old and had no
criminal record at the time he committed the crimes at issue, he had a history of gang
affiliation. Defendant’s claim that he only “began associating with other youths who
exerted a negative influence on him” after the death of his father in June 2006 is belied
by his admission that he had been a gang member since 2005. Moreover, there is no

                                              9
evidence that his status as a “‘special ed’” student contributed to his participation in the
crimes at issue.
       This is not a case where defendant’s personal background or role in the
commission of the crimes makes a sentence of 28 years to life grossly disproportionate to
his crimes. To the contrary, considering the callousness of his actions, the danger to
society presented by discharging a gun in close proximity to numerous innocent
partygoers, and his gang affiliation, we conclude that defendant’s 28-year-to-life sentence
is not grossly disproportionate to his crimes. (See People v. Em (2009) 171 Cal.App.4th
964, 966-967, 972-973 [sentence of 50 years to life imposed on 15-year-old aider and
abettor to murder was not disproportionate considering seriousness of crime and
defendant’s gang affiliation and danger to society].)
       Defendant argues this case is like Dillon, supra, 34 Cal.3d 441, in which our
Supreme Court concluded that a 17-year-old convicted of felony murder should have his
punishment reduced to the applicable sentence for second degree murder based on
principles of proportionality under the California Constitution. (Id. at p. 489.) The court
reasoned that that the defendant was “an unusually immature youth” (id. at p. 488) who
shot the victim in a panic during an unsophisticated attempt to steal from a marijuana
farm. (Id. at p. 452.) “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. . . . [W]ith 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.” (Id. at p. 488.)
       Unlike the defendant in Dillon, there is no evidence defendant was unusually
immature for his age. Defendant was not in a panic when he discharged his gun. Nor
was he acting in response to a perceived threat. Rather, he showed up to a party
uninvited with several other gang members and when asked to leave responded by
discharging his gun in close proximity to innocent partygoers.

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       Although not raised by the parties, we note that the abstract of judgment fails to
list the 3 year term imposed on count one and erroneously indicates defendant’s sentence
for the gun enhancement imposed on count three as 3 years, when the trial court imposed
4 years. We shall direct the trial court to correct these clerical errors.
                                       DISPOSITION
       The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to reflect that defendant was sentenced to 3 years on count one and 4 years for
the section 12022.5, subdivision (a) enhancement imposed on count three, and to forward
a copy of the corrected abstract to the Department of Corrections and Rehabilitation.




                                              /s/
                                            Blease, J.


We concur:


         /s/
       Raye, P. J.


         /s/
       Duarte, J.




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