Filed 5/30/13 P. v. Garcia CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B234395

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA303810)
         v.

JOSE GARCIA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald S. Coen, Judge. Affirmed as modified.


         Jeralyn Keller, 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, Zee Rodriguez and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.




                                                       ******
       Defendant Jose Garcia appeals from the judgment after his conviction by jury of
first degree murder in violation of Penal Code section 187, subdivision (a).1 The jury
found true the special circumstance allegations that the murder was committed during the
commission of a robbery and a carjacking (§ 190.2, subd. (a)(17)). The jury also found
true the allegations that defendant personally used a firearm and personally and
intentionally discharged a firearm which proximately caused great bodily injury and
death within the meaning of section 12022.53, subdivisions (b), (c) and (d). A different
jury previously convicted defendant of unlawful firearm activity pursuant to
section 12021, subdivision (d)(1).2
       The trial court sentenced defendant to life in prison without the possibility of
parole for first degree murder. For the firearm enhancements, it imposed a consecutive
term of 25 years to life (§ 12022.53, subd. (d)), and also imposed and stayed 20-year and
10-year terms (§ 12022.53, subds. (c) & (b) respectively). For the unlawful firearm
activity, the trial court imposed the upper term of three years to run concurrently with the
first degree murder sentence. The court imposed various fines and fees including a court
security fee of $40 per count for a total of $80.
       Defendant contends the trial court improperly relied on an element of the offense
(defendant’s probation status), to impose the upper term on the unlawful firearm activity
conviction. He also contends the sentence of life without the possibility of parole is cruel
and unusual punishment under both state and federal law. We modify the judgment to
reduce the total security fee to $60, but otherwise affirm.
                                          FACTS
       1.     Procedural background
       The underlying proceeding involved three trials. The first jury deadlocked on both
counts and the court declared a mistrial. The second jury found defendant guilty of


1      All further statutory references are to the Penal Code unless otherwise indicated.
2      In January 2012, this section was renumbered as section 29815.
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unlawful firearm activity but deadlocked on whether defendant was guilty of first degree
murder, and a mistrial was declared as to that count.3 The third jury found defendant
guilty of first degree murder and found the firearm and special circumstance allegations
to be true.
       2.     Prosecution evidence4
       On January 17, 2006, Emilio Isaac Huesca was driving a red Cadillac owned by
his friend, Armando Arias, in the City of Los Angeles, with Arias as a passenger. The
Cadillac was equipped with various electronics including television screens mounted on
the back of the front seat headrests, and a PlayStation. At approximately 11:45 p.m.,
Detective Kelle Baitx of the Los Angeles Police Department responded to a shooting call
and found Arias in an alley behind his house. Arias had been shot several times and was
on his knees facing the wall. His upper body was leaning against the wall. The red
Cadillac was gone. Detective Baitx found a single bullet on the ground and it was
booked into evidence and submitted for testing.
       Detective Tommy Thompson interviewed Huesca and testified that Huesca told
him that two people in a car blocked the Cadillac in the alley.5 Surveillance video
cameras were located at a Laundromat across the street from the alley but did not capture
the shooting. A video time stamped at 11:30 p.m. showed a car similar to defendant’s
mother’s Acura, circle the area and then back up into the alley.
       Dr. Stephen Scholtz, a deputy medical examiner in the Los Angeles County
Coroner’s Office and a forensic pathologist conducted an autopsy on Arias’s body, which
had 12 entry wounds located on the back of the body. One entry wound was in the head

3      The jury was deadlocked with 11 votes for guilty and one vote for not guilty.

4       In the second trial, in which the jury found defendant guilty of unlawful firearm
activity, the parties stipulated that prior to January 17, 2006, a court ordered defendant
not to possess a firearm. The facts relevant to the issues on appeal are taken from the
third trial.

5      Huesca did not testify and at the time of trial his whereabouts were unknown.
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by the right ear and the majority were located in the lower back of the torso. The
gunshots damaged Arias’s internal organs and three of the wounds were fatal. The cause
of death was multiple gunshot wounds and the downward trajectory of the bullets was
consistent with the victim being shot from behind, as he knelt on the ground. Dr. Scholtz
recovered four medium caliber bullets from Arias’s body during the autopsy.
       Los Angeles Police Department Officer Genaro Arredondo, a firearms expert,
conducted forensic testing on the expended bullet found at the shooting scene and those
recovered by Dr. Scholtz. All five bullets were of the same general caliber and were fired
from either a nine-millimeter, .38-caliber, or .357-caliber gun. Two of the bullets
recovered from Arias’s body were fired from a single gun. The other three bullets were
extensively damaged and Officer Arredondo could not definitively establish that they
were also fired from the same gun.
       At about 3:00 p.m. on January 18, Rolando Gavidia saw a large flatbed tow truck
dropping off a red Cadillac on the street outside his house. Gavidia saw his neighbor,
Russell Garcia, speak with two young men in a white Explorer that accompanied the tow
truck. One of the young men was later identified as Ramon Garcia, Russell’s son.6
Gavidia’s son called the police to report the presence of the red Cadillac. All electronic
equipment including the stereo and headrest television screens had been removed from
the Cadillac.
       Detective Thompson interviewed Ramon at a juvenile camp. Defendant paid
Ramon and Luis Flores to dispose of the stolen Cadillac. The car battery did not work
when the electronic equipment was removed so defendant arranged for the Cadillac to be
transported to Russell’s house. Ramon identified defendant by his distinctive gang
tattoos and street moniker.
       Defendant was arrested on June 1, 2006, and advised of his constitutional rights.
The detectives told defendant the entire shooting was captured on video. Initially,


6     We refer to Russell Garcia and his son Ramon Garcia by their first names to avoid
confusion, not out of disrespect. They are not related to defendant.
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defendant did not talk to the detectives but when walking toward the booking area at the
police station he told Detective Thompson that he thought the Cadillac belonged to
Huesca. He had been in the Cadillac with Huesca in the past and about two weeks before
the shooting followed him with the intention of stealing the car and selling the
electronics. Detective Thompson took defendant aside when he started to provide
additional details of the shooting and recorded the conversation.7 On the day of the
shooting, defendant saw Huesca driving the Cadillac and followed the car to the alley.
He used his mother’s Acura to block the Cadillac from leaving the alley. He ordered
Arias and Huesca out of the car and told them to face the wall and not to look at him.
Arias “kept fidgeting” and defendant shot him with a .38-caliber gun. He took the
Cadillac to his mother’s house and removed all of the electronic equipment. He asked his
friends Ramon and Flores to help dispose of the Cadillac and told them it was stolen, but
“not that hot.” Defendant paid for a tow truck to move the Cadillac because the battery
stopped working. Defendant said he disposed of the gun but would not disclose the
location. He also refused to identify the individual that drove his mother’s Acura away
from the crime scene. At the end of the interview, defendant was told he was allowed to
make a telephone call.
       Defendant’s cell had a telephone and a monitoring device and defendant’s side of
the conversation was recorded when he made a call.8 Defendant said, “Shit they got me
motherfucker. For the murder. They got me for murder. . . . They got me on video and
they fuckin.’ They got me driving and shit.” In Spanish, defendant said, “they have
everything, dude, they have everything.”




7      A compact disc containing an audio recording of the interview was played for the
jury and, along with a transcript, was admitted into evidence.

8     A compact disc containing an audio recording of defendant’s portion of the
conversation was played for the jury and, along with a transcript, was admitted into
evidence.
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                                       DISCUSSION
I.     Dual Use Doctrine
       Defendant claims that the trial court violated California Rules of Court,
rule 4.420(d),9 known as the dual use doctrine, by using a factor that was an element of
the crime of unlawful firearm activity (§ 12021, subd. (d)(1))10 to justify imposing the
upper term for the same crime. The People respond that defendant has forfeited any
challenge to his sentence on this basis because he failed to object in the lower court to the
court’s imposing the aggravated term.
       The Supreme Court, in People v. Scott (1994) 9 Cal.4th 331, held “that the waiver
doctrine should apply to claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices. Included in this category are cases in
which the stated reasons allegedly do not apply to the particular case, and cases in which
the court purportedly erred because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or give a sufficient number
of valid reasons.” (Id. at p. 353.) The court concluded, “In sum, we hold that complaints
about the manner in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at
p. 356.)
       In the instant case, defendant had an opportunity to do so but did not interpose an
objection at the sentencing hearing or argue that the trial court’s consideration of his
probation status was improper or somehow constituted an impermissible dual use of


9      California Rules of Court, rule 4.420(d) provides: “A fact that is an element of the
crime upon which punishment is being imposed may not be used to impose a greater
term.”

10     In January 2006, when defendant committed the offenses herein, section 12021,
subdivision (d)(1) stated in relevant part: “Any person who, as an express condition of
probation, is prohibited or restricted from owning, possessing, controlling, receiving, or
purchasing a firearm and who owns, purchases, receives, or has in his or her possession
or under custody or control, any firearm . . . is guilty of a public offense . . . .”
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facts. We therefore conclude that his appellate challenge to the trial court’s sentencing
choices and supporting rationale must be deemed waived.


II.    Constitutionality of Defendant’s Life Without Parole Sentence
       Defendant contends that his sentence of life without the possibility of parole
violates the Eighth Amendment’s and the State Constitution’s proscriptions against cruel
and unusual punishment because it was grossly disproportionate.11 We find this
argument unavailing.
       First, defendant failed to raise this contention in the trial court and therefore
forfeited the issue on appeal. Nevertheless, to forestall a subsequent ineffectiveness of
counsel claim and in the interest of judicial economy, we consider the issue. (People v.
Norman (2003) 109 Cal.App.4th 221, 230.)
       Under the Eighth Amendment of the federal Constitution, we must assess three
factors to determine whether a sentence is disproportionate to the offense: (1) the gravity
of the offense and the harshness of the penalty; (2) sentences imposed for other crimes in
the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions.
(Ewing v. California (2003) 538 U.S. 11, 22.) Defendant makes no attempt to present an
intrastate comparison of sentences for other crimes or an interstate comparison of
sentences for the same crime. His argument fails on this basis alone.
       Under the California Constitution, we assess whether a punishment “shocks the
conscience and offends fundamental notions of human dignity” based on a number of
factors, including: (1) the nature of the offense and/or the offender; (2) a comparison of
the sentence with punishments prescribed in California for different offenses; and (3) a
comparison of the challenged sentence with punishments prescribed for the same offense
in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 424.) We reject defendant’s


11     “Cruel or unusual punishment may not be inflicted or excessive fines imposed.”
(Cal. Const., art. I, § 17.) “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.)
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claim of disproportionality under the California Constitution for the same reason that we
reject his federal claim—he has failed to offer any inter- and intrastate comparisons.
       People v. Dillon (1983) 34 Cal.3d 441 (Dillon), on which defendant relies, holds
that murder committed in the commission of a robbery is a serious crime presenting a
high level of danger to society. In that case, however, our Supreme Court concluded the
facts of the specific crime in question and the defendant’s culpability weighed in favor of
concluding the imposition of a life sentence constituted cruel or unusual punishment. (Id.
at pp. 488–489.) The particular facts of Dillon were central to our Supreme Court’s
conclusion. The shooting in Dillon occurred during an attempt to steal marijuana plants
the victim was cultivating. (Id. at pp. 451–452.) The defendant had previously overheard
the victim threaten to shoot anyone coming on his property. (Id. at p. 451.) An
accidental firearm discharge during the attempted robbery alerted the victim to the
presence of the defendant and his cohorts. (Id. at p. 452.) The defendant heard the
victim approaching, saw him carrying a shotgun, and, “[w]hen [the victim] drew near,
defendant began rapidly firing his rifle at him.” (Ibid.) The facts in Dillon contrast
dramatically with the carjacking, robbery and murder of Arias.
       Defendant had a prior criminal history and was on probation at the time of the
murder. Defendant chose to take the Cadillac while it was being driven, thereby
guaranteeing a confrontation with the owner. He carefully planned the carjacking having
followed Huesca some two weeks earlier. Defendant chose to force Arias and Huesca to
kneel by the wall when they exited the Cadillac and did not leave immediately with the
Cadillac. When Arias “fidgeted,” defendant shot him in the back and head 12 times. He
then stripped the Cadillac of its electronic components and made plans with his friends to
dispose of it. Defendant showed no remorse in his statements to police or at sentencing.
       Defendant contends that his sentence constitutes cruel and unusual punishment
because he was “barely more than a child himself” when the shooting occurred.
Defendant was 18 years old, and, under these circumstances, we find the factor of
defendant’s age was “substantially outweighed by the seriousness of the crime and the

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circumstances surrounding its commission . . . .” (People v. Gonzales (2001) 87
Cal.App.4th 1, 17.) Successful challenges to sentences on the grounds of cruel and
unusual punishment are rare. (In re Nuñez (2009) 173 Cal.App.4th 709, 734, 735.) This
is not one of the rare cases in which the sentence imposed should be reduced as cruel and
unusual.


III.   Court Security Fee
       Defendant argues, and the People concede, that the trial court improperly imposed
a total security fee of $80, pursuant to section 1465.8, subdivision (a)(1). At the time of
defendant’s conviction on count 2, on October 27, 2008, former section 1465.8,
subdivision (a)(1) provided: “To ensure and maintain adequate funding for court
security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal
offense . . . .” As of October 19, 2010, the security fee was increased to $40. (§ 1465.8,
subd. (a)(1), as amended by Stats. 2010, ch. 720, § 33.) Because the $40 security fee was
unauthorized at the time defendant was convicted of count 2, we will correct the
judgment. (See People v. Davis (2010) 185 Cal.App.4th 998, 1000 [new court facilities
fee imposed by Gov. Code, § 70373 does not apply to cases in which the defendant’s
conviction was rendered before effective date]; People v. Alford (2007) 42 Cal.4th 749,
754 [§ 1465.8’s “legislative history supports the conclusion the Legislature intended to
impose the court security fee to all convictions after its operative date”].)




                                              9
                                      DISPOSITION
       The judgment is modified to reduce the section 1465.8 court security fee from $80
to $60 for the reasons stated herein. The trial court is directed to send a corrected abstract
of judgment to the Department of Corrections and Rehabilitation reflecting the
modification in the amount of the court security fee. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                             _____________________, J. *
                                                     FERNS
We concur:




____________________________, Acting P. J.
       ASHMANN-GERST


____________________________, J.
       CHAVEZ




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