Filed 8/6/13 P. v. Vigeant 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B241378

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA075960)
         v.

ANTHONY VIGEANT,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mark C. Kim, Judge. Affirmed.


         Leslie Conrad, 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, Eric E. Reynolds and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Defendant Anthony Vigeant appeals from the trial court‘s denial of his motions
requesting a new trial, the striking of the special circumstance, and the appointment of an
expert. In July 2009, Vigeant was convicted of the first degree murder of David
Pettigrew with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17))1
(count 1), attempted robbery (§§ 664/211) (count 2), and first degree burglary (§ 459)
(count 3). The jury found that a principal was armed with a firearm during the
commission of all counts. (§§ 12022, subd. (a)(1).) After denial of the new trial motion
and other motions, the trial court sentenced Vigeant to life in prison without the
possibility of parole (LWOP) in count 1, a consecutive term of four years six months in
count 2, and an additional year for the principal-armed enhancement. The court stayed
the sentence in count 3 under section 654.
       Vigeant appeals on the grounds that: (1) the trial court prejudicially erred in
denying his motion for new trial, requiring reversal; (2) the trial court abused its
discretion by refusing to hold an evidentiary hearing and to appoint a clinical
neuropsychologist, and the errors prejudicially denied Vigeant his constitutional rights;
(3) Vigeant‘s LWOP sentence constitutes cruel and unusual punishment; and (4) the
sentence in count 2 must be stayed under section 654.
                                 FACTUAL HISTORY2
       At Vigeant‘s trial, Ramon Hernandez testified that he was a charged codefendant
in the shooting death of Pettigrew. He had pleaded guilty to one count of murder and had
admitted the special circumstances that the murder was committed during the course of a
residential burglary and during the course of an attempted robbery. He had admitted to


1      All further references to statutes are to the Penal Code unless stated otherwise.
2      Some of the factual history recited in this opinion is derived from this Court‘s
prior opinion in People v. Landers, et al. (Jun. 28, 2011, B218366) (nonpub. opn.). This
Court granted respondent‘s request to take judicial notice of People v. Landers, et al., the
case in which Vigeant and his codefendant, Landers, appealed from their convictions.
This court also granted respondent‘s request to take judicial notice of the file in Vigeant‘s
petition for writ of habeas corpus, In re Vigeant (Jun. 28, 2011, B231443).


                                              2
the personal use of a firearm and pleaded guilty to the attempted residential robbery and
residential burglary counts. He had not yet been sentenced.
       Hernandez had not been offered any deal or plea bargain and had not asked for
one. He pleaded guilty to accept responsibility for his actions. He was not offered any
leniency for testifying and had volunteered to testify because ―the truth needs to be out
there, and everybody has a right to the truth.‖ He also wanted to bring justice to the
victim‘s family.
       Hernandez was a Marine who had done two tours in Iraq. He was injured when a
suicide vehicle exploded near him and shrapnel entered his head. He lost his left eye, his
sense of smell, his left frontal lobe, and part of his right frontal lobe. He suffered nerve
damage in his right arm and hand. His brain injury affected his thinking and caused him
to be more emotional than before, but his ability to feel empathy with others was
diminished. He had also become ―very compulsive.‖ He did things he normally would
not have done, and he sometimes processed information more slowly.
       Hernandez met fellow Marine Vigeant at Camp Pendleton Marine Corps Base.
Shortly thereafter, he met Vigeant‘s cousin, Landers, another Marine. At some point,
Hernandez talked to them about Iraq and his injuries. Hernandez acknowledged that he
did not discuss the emotional or psychological issues related to his injuries with Landers
and Vigeant.
       Hernandez heard Landers complain about his problems with Pettigrew, whom
Hernandez did not know. Landers said that Pettigrew owed him some cocaine, and
Vigeant had left his laptop computer with Pettigrew as collateral for the cocaine. Landers
believed that Pettigrew was dodging him. Although Pettigrew had told Landers he could
pick up the cocaine at Pettigrew‘s apartment, Pettigrew would ―blow [Landers] off‖ by
turning off his cell phone whenever Landers called him.
       Hernandez heard Landers and Vigeant threatening Pettigrew over the telephone.
During a period of two and one-half hours, Landers and Vigeant left four threatening
messages on Pettigrew‘s voicemail. This occurred on the night of September 7, 2007,
and the early morning of September 8, 2007.

                                              3
         On the evening of September 9, 2007, Hernandez was drinking with Vigeant and
another Marine at the barracks. They then went to a party at someone‘s house. Landers
telephoned Vigeant there and asked Vigeant to pick him up. Vigeant eventually agreed,
and Hernandez went with Vigeant so as not to be stranded. When Landers joined them,
Landers began complaining again about Pettigrew dodging him. Landers said Pettigrew
still had not given him his cocaine, and if he had a gun ―he would bust a cap in his
ass . . . .‖
         Hernandez told Landers that he had a handgun, whereupon Landers became
―excited, very enthusiastic‖ and asked Hernandez where the gun was located. Landers
wanted to get the gun to shoot Pettigrew. Vigeant also said he wanted Hernandez to get
his gun, and he said he wanted Pettigrew to be killed. The only reason that Hernandez
went with Landers and Vigeant to Pettigrew‘s apartment was because Landers and
Vigeant were looking for someone with a gun.
         Hernandez, Landers, and Vigeant drove to Hernandez‘s barracks, a 40-minute
drive south, and Hernandez retrieved the gun from his car. They then began driving
northward to Long Beach. Landers drove, Vigeant was in the front passenger seat, and
Hernandez was in the rear seat. At some point during the two-hour drive, Hernandez
asked the other men what they wanted him to do, and they said they wanted Pettigrew to
be shot. Hernandez told them that there was a difference between being shot and being
dead and asked them, ―Which one do you want?‖ Landers said, ―I want him dead.‖
Vigeant did not say anything, nor did he say, ―No.‖ Hernandez then stated that Landers
had the lead role, but Vigeant joined in the response that he wanted the man killed.
         As they drove northward, Hernandez fired the gun out the window of the car in the
Camp Pendleton area. He asked Landers and Vigeant more than once what they wanted,
and they both said they wanted Pettigrew dead. According to Hernandez, ―Plan A was to
pick up cocaine. Plan B was to kill somebody, which was Mr. Pettigrew.‖ Hernandez
did not like the fact that Pettigrew was messing with fellow Marines.
         When they arrived at their destination, they all got out of the car and headed to
Pettigrew‘s apartment complex. Hernandez told Landers that if Landers wanted ―this

                                               4
guy‖ dead, and the guy did not give Landers what he wanted, then Hernandez was going
to shoot him, ―because you said you want him dead, right?‖ In response, ―they were,
like, ‗Yeah.‘‖ Landers jumped a fence beside Pettigrew‘s apartment building to check if
Pettigrew‘s window was open. Landers planned to have all three of them hop the fence
and enter Pettigrew‘s apartment through the window, but he returned because ―some
lady‖ saw him. Jennifer Potter, who lived next door to Pettigrew, saw a man walking
past her window by means of a walkway that was closed off to tenants and the public.
When Potter challenged the man, he said he was locked out and was trying to get in his
window. Potter believed she heard a gunshot approximately 20 minutes after she saw the
man.
         Hernandez asked to see a floor plan of Pettigrew‘s apartment. Landers made one
for him out of twigs and small rocks. Hernandez testified that ―the plan was always the
same: go in, get this guy to give us the coke, and, if not, that he was supposed to get
shot.‖
         The three men entered Pettigrew‘s building, and Landers lightly turned the door
knob of Pettigrew‘s apartment. Hernandez told Landers that the door was not locked and
that he could push it open, which he did. Landers entered first, then Vigeant, then
Hernandez. Once they had quietly entered the dark apartment, either Landers or Vigeant
turned on a lamp. Hernandez then saw Pettigrew, but Landers and Vigeant had already
gone through another doorway inside the apartment. Although the two men were being
quiet, Hernandez could hear them moving things around.
         Hernandez saw that Pettigrew was passed out. Pettigrew awoke and saw
Hernandez, whom he did not know. He just looked at Hernandez and said nothing.
Landers and Vigeant came back in and saw that Pettigrew was awake. ―They were, like,
‗Hey, what the fuck? Where is my coke?‘‖ Both Landers and Vigeant were shouting,
―Where is the computer. Where is my shit.‖ They began yelling at Pettigrew, demanding
the coke.
         Hernandez noticed that Pettigrew was ―on something.‖ Landers asked Pettigrew if
he was on Oxycontin, and Pettigrew said he was. Pettigrew said he would call his

                                              5
connection and get the coke. Pettigrew pushed some buttons on his cell phone and
Landers‘s phone rang. Landers looked at his phone and said, ―What the fuck? . . .
[W]hy are you calling me? Call your dealer.‖ Landers and Vigeant continued to demand
that Pettigrew get the cocaine, and Pettigrew again attempted to make a phone call. After
no more than 20 minutes, Hernandez pulled out his pistol and told Pettigrew
he had something that would refresh his memory. Hernandez jammed the pistol into
Pettigrew‘s right eye socket and said, ―You need to make your call. Call your dealer.
Call whoever you have to call, but get that coke here now.‖
       Pettigrew continued to push buttons on his phone. Hernandez told him that he
would give him 10 seconds. If Pettigrew had not produced something at the end of those
10 seconds, Hernandez was going to shoot him. Neither Landers nor Vigeant said
anything or attempted to stop Hernandez. Neither told him to put the gun away. They
continued to yell at Pettigrew saying, ―When he starts counting and he gets to 10, when
he makes it to 10 he is going to shoot you, so hurry up, get on the phone, call your dealer
and get the coke here right now.‖
       Hernandez began counting. He counted very slowly, waiting approximately 10 or
15 seconds between each number. When he got to 10, he shot Pettigrew from a distance
of approximately four feet. He did so because that is what Landers and Vigeant had
brought him along to do. He did it to back up his fellow Marines. At no time during the
count did either man say or do anything to register their objection to Hernandez‘s
shooting Pettigrew. Landers and Vigeant were telling Pettigrew to come up with the stuff
or Hernandez would shoot him.
       When Hernandez shot Pettigrew, Landers and Vigeant were shocked. Hernandez
believed the shock was not caused by the fact that the shot actually occurred but rather
because they were shocked at what they saw—they were not conditioned to see
something like that. They knew they were all there to shoot Pettigrew. Landers jumped
back and said, ―Dude, you almost got blood on me.‖ Vigeant just stood there with his
mouth and his eyes wide open. The three men ran to the car. Landers drove around



                                             6
aimlessly for about half an hour until Hernandez told him that they needed to get back on
the freeway. Vigeant was hysterical. Hernandez explained that, when he said Vigeant
was ―hysterical,‖ he meant that he was speaking very loudly and saying, ―Do you think,
he is dead? Do you think he is dead? We should go back.‖ Vigeant wanted to see if the
police would show up. He was not crying, and Landers was not crying either.
         Hernandez repeated that after he asked Landers and Vigeant if they wanted
Pettigrew killed, they both answered ―yes.‖ Hernandez asked the same question during
the trip between Camp Pendleton and Long Beach, when they got to Long Beach, before
they left the barracks, and just before they entered Pettigrew‘s apartment. Both Landers
and Vigeant looked at the gun during the trip, and Vigeant played with it until he was told
to stop it. Before the shot was fired, neither Landers nor Vigeant told Hernandez not to
do it.
         Hernandez said that when he told defense counsel on cross-examination that he
did not intend to kill Pettigrew, he meant that he did not want him dead. It was not up to
him. He did not even know him. However, he was willing to kill him because Landers
and Vigeant had asked him to do so. The rationale was that Pettigrew was messing with
Hernandez‘s fellow Marines. Hernandez acknowledged that he had previously testified
that he shot Pettigrew because Hernandez had given Pettigrew a specific order and
Pettigrew had not obeyed it.
         After the shooting, the three men drove back to Camp Pendleton, stopping on the
way for food at a convenience store. They went to Landers‘s room and talked about the
shooting. They agreed not to say anything and to pretend they did not know each other.
They drank and ―hung out‖ for about three more hours. Landers told Hernandez he
should have shot Pettigrew two more times to ensure he was dead.
         On the day after the shooting, September 10, 2007, Mauricio Rosales, a
maintenance man, noticed an apartment door ajar in Pettigrew‘s building. When he
looked inside, he saw a man slumped down on the sofa with a cell phone in his right
hand. The man was bloody and was not breathing. Rosales called 911.



                                             7
       Police officers responded to the scene. A nine-millimeter casing and an expended
round were collected in the apartment. Dr. Raffi Djabourian, a deputy medical examiner,
testified that Pettigrew had a bullet entrance wound at the left temple that exited on the
back of the head. The wound was rapidly fatal. The victim was found still holding his
cell phone due to a rapid onset of rigor. None of the various drugs found in his system
contributed to his death.
       Detective Scott Lasch was assigned to the Pettigrew murder case along with
Detective Malcolm Evans. They did not find any narcotics or drug-dealing paraphernalia
in Pettigrew‘s apartment. They found a laptop computer that was registered to Vigeant
on the rear seat of Pettigrew‘s truck. Detective Lasch discovered that a parking citation
was issued to Vigeant on September 6, 2007 (three days before the shooting), in the area
of Orizaba Avenue in Long Beach, near Pettigrew‘s apartment.
       By means of Pettigrew‘s cell phone records, the investigating officers established
that calls were made from Landers‘s and Vigeant‘s cell phones to Pettigrew on the night
of his death and two days before his death. Two days before the shooting, Vigeant said:
―Hey what‘s up brotha. I know you know who this is. It‘s fuckin‘ Tony. And dude,
fuckin‘, eh-heh, if you don‘t stop playing games, it‘s gonna get ugly dude. And, fuckin‘,
I‘m gonna come to your house. And it‘s gonna be all bad. So hit me back, ASAP.
Late.‖ Fifty-three minutes later, Vigeant left the following message: ―Dave you better
fuckin‘ hit me back right now dude. Fuckin‘, me and my cousin, we ain‘t playin‘ dude.
You fuckin‘ hit us back up or I‘ll fuckin‘ find your ass dude. Hit me up. Late.‖
       In between Vigeant‘s two messages, Landers left a message stating, ―Hey Dave,
you better fuckin‘ call me back bro.‖ Shortly after midnight, on September 8, 2007,
Vigeant left the following message: ―Dave, don‘t even play dude. Fuckin‘, me and my
b-me and my homeboy Tre, fuckin‘, are ready to rumble dude. Fuckin, pick up your
phone dude or it‘s gonna get ugly. Just to let you know. Nobody fuckin‘ robs me dude.
No one. So, it‘s in your best interest to pick up your phone, otherwise it‘s gonna get
really ugly, and we know where to find you. Not only at your apartment, but we got



                                              8
fuckin‘ military fuckin‘ aspect. Fuckin‘, we know where to look man. You‘re fucked if
you try to run. Alright . . . . Hit me up. See if I‘m playing. Late.‖
       Detective Bryan McMahon investigated cell site hits for telephones linked to
Landers and Vigeant. He discovered that the hits on the cell sites during the evening of
Pettigrew‘s death began near Camp Pendleton and proceeded north along the coast, the
No. 5 freeway, the No. 22 freeway, and all the way to Long Beach. A cluster of hits at a
certain point led the investigators to go to that location, and they located a gas station
near that spot. The investigators obtained footage from the gas station‘s security cameras
that showed Vigeant, Landers, and Hernandez pulling up to the pumps at 8:40 p.m. They
all got out of the car. Vigeant is seen talking on his cell phone, and Landers also used his
cell phone. The footage showed Landers driving away from the gas station at 8:51 p.m.
       Detective Dennis Robbins assisted in the investigation of Pettigrew‘s murder.
After Landers was arrested in the Bay Area by United States Marshalls, Detective
Robbins interviewed Landers in the Contra Costa County jail on September 27. When
shown a photograph of his cousin, Vigeant, Landers said he did not know him. Landers
said he did not know Hernandez when shown a photograph of him. Landers said he had
not been in Long Beach in the preceding weeks. Landers acknowledged that he was due
back at Camp Pendleton on September 24, 2007, and had failed to show up. He said it
was because he had been scheduled to go to Iraq on September 28, and he did not want to
go.
       Detective McMahon testified that he made a series of phone calls to Vigeant on
September 23, 2007, between 4:32 p.m. and 6:45 p.m. Not all of the calls were
answered. An audio recording of the calls was played for the jury. Vigeant exchanged
pleasantries with the detective, beginning with ―How‘s it going man?‖ when the detective
introduced himself. When asked if he knew anybody that had recently been murdered
down in Long Beach, Vigeant merely replied, ―Negative.‖ When told that the ―guy‘s‖
name was David and asked if the name rang a bell, Vigeant said ―Yes.‖ When Detective
McMahon then asked ―What‘s that?,‖ Vigeant said he had left his laptop ―down there.‖
He said David was his cousin‘s friend. He then said his cousin, named Trevor Landers,

                                              9
had met David a couple of times. Vigeant said he lent Pettigrew the laptop ―a couple of
months‖ earlier. Vigeant denied several times having spoken to Pettigrew on his phone
just after midnight on September 8, 2007. He said he had never been to Pettigrew‘s home
in Long Beach. Vigeant said that Landers knew Pettigrew from school. When the
detective asked Vigeant how he could be contacted, Vigeant replied that he had just
moved into his barracks two weeks earlier and was not sure the detective could contact
him there. When asked again about phone calls to Pettigrew, Vigeant claimed he had lent
his phone to a friend named Hernandez, but Hernandez did not know Pettigrew. Vigeant
had not seen Pettigrew in ―probably like a month.‖ Vigeant expressed no curiosity when
the detective stated that he was trying to figure out what happened to Pettigrew. Vigeant
merely replied, ―Yeah.‖ When the detective told Vigeant that Pettigrew was murdered,
Vigeant expressed surprise.
       Vigeant told the detective that he had gone to a going-away party at the home of a
Corporal Schrader on September 8, 2007, a Saturday. He was at the party from 4:00 or
5:00 until 1:00 or 2:00 the next morning. He then said he called Pettigrew from the party
to ask for his laptop. In a subsequent phone call, Detective McMahon clarified to
Vigeant that the murder took place on Sunday, September 9. Vigeant said he was alone
that day, ―just chilling.‖
       Detective McMahon interviewed Hernandez on September 28, 2007. Hernandez
initially denied going to Long Beach. After being told that another suspect was in
custody, Hernandez related the events on the night of the murder. An audio recording of
Hernandez‘s interview was played for the jury.
       Detective McMahon retrieved Hernandez‘s gun from a location in Tempe,
Arizona, where Hernandez had directed him to look. The gun was a Browning high-
power nine-millimeter weapon (People‘s exhibit 20). Troy Ward, a criminalist with the
Long Beach Police Department, confirmed that Hernandez‘s firearm matched the shell
casing found at the scene of Pettigrew‘s shooting.




                                            10
                                      DISCUSSION
I. New Trial Motion
       A. Vigeant’s Argument
       Vigeant contends that the trial court erroneously denied his motion for new trial on
the grounds of ineffective assistance of counsel. According to Vigeant, his trial counsel,
David R. Cohn, was aware of Vigeant‘s mental disabilities and was therefore obligated to
investigate them, consult an expert, and introduce expert testimony on the nature of
Vigeant‘s neurodevelopmental disabilities. Cohn‘s failure to do so resulted in a denial of
Vigeant‘s rights under the Sixth and Fourteenth Amendments. Cohn was also ineffective
for failing to investigate Hernandez‘s disabilities and consult an expert to prepare for
Hernandez‘s cross-examination and testify as necessary.
       B. Relevant Authority
       Ineffective assistance of counsel, if proven, is a valid, nonstatutory ground for a
new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Reed (2010)
183 Cal.App.4th 1137, 1143.) Upon appeal from the denial of a new trial motion based
on a claim of ineffective assistance or other denial of constitutional rights, we apply two
distinct standards of review. We defer to the trial court‘s factual findings if supported by
substantial evidence, but we exercise de novo review over the ultimate issue of whether
Vigeant‘s constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d
720, 724-725.)
       On appeal, to establish ineffective assistance of counsel, a defendant has the
burden of proving both that ―his counsel‘s performance was deficient when measured
against the standard of a reasonably competent attorney and that counsel‘s deficient
performance resulted in prejudice to defendant in the sense that it ‗so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.‘‖ (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660; see
also Strickland v. Washington (1984) 466 U.S. 668, 686-687 (Strickland).) ―A defendant
must prove prejudice that is a ‗―demonstrable reality,‖ not simply speculation.‘
[Citation.]‖ (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) A court need not assess

                                             11
the two factors of the inquiry in order. If there is an inadequate showing on either factor,
it need not be addressed. (Strickland, at p. 697.)
       In examining claims of ineffective assistance of counsel, we give great deference
to counsel‘s reasonable tactical decisions. (People v. Hinton (2006) 37 Cal.4th 839, 876.)
A defendant must establish that the challenged act or omission did not result from an
informed tactical choice within the range of reasonable competence. (People v. Pope
(1979) 23 Cal.3d 412, 425.) In order to establish ineffective assistance based on an
alleged failure to investigate, a defendant ―must prove that counsel failed to make
particular investigations and that the omissions resulted in the denial of or inadequate
presentation of a potentially meritorious defense.‖ (In re Sixto (1989) 48 Cal.3d 1247,
1257.) At the same time, any tactical choices regarding the preparation of the case and
the focus of the investigation in one area rather than another must be reasonable under
prevailing professional norms. (Wiggins v. Smith (2003) 539 U.S. 510, 521-522.)
       ―‗[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.‘‖ (Id. at p.
521.) Appellate courts must refrain from second-guessing trial counsel, since ―‗[i]n any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel‘s judgments.‘‖ (Id. at pp. 521-522.)
       With respect to a claim that counsel has withdrawn a defense, our Supreme Court
has stated: ―‗It is sufficient for the present purpose to observe that the defense was
potentially meritorious, and that petitioner was denied an adjudication on the matter
because of his counsel‘s inadequate factual and legal preparation.‘‖ (People v. Shaw
(1984) 35 Cal.3d 535, 541.) A crucial defense is not necessarily one that would result
inexorably in a defendant‘s acquittal. (Ibid.)




                                             12
          C. Proceedings Below
          In the instant case, after denying the motion for an evidentiary hearing, the trial
court noted that it had reviewed the request for a new trial. At the trial court‘s invitation,
defense counsel for the new trial motion, Gregorio Roman, addressed the court, stating
that Vigeant was seeking new trial on three grounds: ineffective assistance of counsel,
insufficiency of the evidence, and newly discovered evidence consisting of a letter
written by Hernandez. Roman stated there was clearly a failure to investigate Vigeant‘s
and Hernandez‘s psychological disabilities, although trial counsel, Cohn, was aware of
them. With respect to Vigeant, Cohn did not investigate his attention deficit disorder or
his auditory deficit. As support for this contention, Roman cited the report by Dr.
Harvey E. Dondershine and the affidavit of James D. Gregory, a California attorney.
This lack of investigation precluded labeling Cohn‘s act or failure to act a tactical
decision or strategic choice. If Cohn had properly investigated, ―he would have known
that this mental deficit would have risen to a possible defense,‖ and the result would
probably have been different.
          With respect to Hernandez, Roman argued, Cohn failed to obtain his medical
records. These records showed Hernandez suffered from many psychiatric disorders.
Cohn also failed to look into Hernandez‘s seizure disorder. If the neurological and
neuropsychological findings had been uncovered by Cohn and presented to the jury, they
would have affected the jury‘s assessment of the issue of intent, leading to a different
result.
          In denying the motion, the trial court cited salient portions of the evidence against
Vigeant and found it sufficient. The court found that the letter from Hernandez that was
claimed to be newly discovered evidence was not evidence—merely a letter in which
Hernandez accepted responsibility, which he had done at trial. As for ineffective
assistance of counsel, the court stated that ―[a]ll the things that is contained in
defendant‘s moving paper is simply conclusionary and it would have made, in this court‘s
opinion, no difference in results. Therefore, motion for new trial is denied.‖



                                                13
       D. New Trial Motion Properly Denied
       Vigeant‘s argument on appeal focuses on the alleged ineffective assistance of trial
counsel. The essence of Vigeant‘s argument is that Cohn was aware of Vigeant‘s mental
deficits, and the prevailing professional norms obligated him to investigate these deficits,
consult an expert, and introduce expert testimony on the nature of Vigeant‘s
neurodevelopmental disabilities.
       At the close of the trial of Vigeant and Landers, the trial court held a Marsden3
hearing when Vigeant said he no longer wished to be represented by Cohn, his retained
counsel. At the hearing, Vigeant voiced a multitude of complaints, among them that
Cohn did not acknowledge or address Vigeant‘s medical issues in the context of
Vigeant‘s ability to understand the trial proceedings. Vigeant said he had ―ADD‖ and
―auditor processing disorder.‖ Cohn responded that he had never received any indication
from Vigeant that Vigeant did not understand what Cohn was telling him, what the
charges and their consequences were, and what the defenses were. Vigeant‘s mother had
told him that her son had ADD, but Cohn never saw any evidence of it and did not see
any problems with Vigeant‘s understanding or communicating with him about the case.
Cohn stated he did not see how ―the medical issue‖ was going to help Vigeant‘s case in
any way during the trial ―from a strategic defense standpoint.‖ Cohn had not had any
difficulty communicating with Vigeant during jail visits or court sessions. Cohn had not
had any problems at all in preparing a defense because of any intellectual, mental or
emotional disabilities that Vigeant had.
       The trial court denied Vigeant‘s request to fire Cohn, and Cohn went on to
represent Vigeant at sentencing. The trial court‘s refusal to allow Vigeant to fire Cohn
resulted in a remand for resentencing on appeal.
       Vigeant also filed a petition for writ of habeas corpus on the ground that he was
denied effective assistance of counsel due to Cohn‘s failure to investigate Vigeant‘s



3      People v. Marsden (1970) 2 Cal.3d 118 (Marsden.)


                                             14
mental disabilities and retain an expert and his failure to investigate Hernandez‘s
disabilities—the same grounds on which he later sought a new trial. The record from
Vigeant‘s petition for writ of habeas corpus shows that Cohn was informed of Vigeant‘s
medical history by Vigeant‘s mother, Joanne Scheer. Scheer declared that she advised
Cohn that Vigeant had ADD and an auditory processing disability. She expressed her
concerns in the context of Vigeant‘s being able to understand what was being said in the
courtroom and by Cohn. Scheer stated that she provided Cohn with (1) copies of records
from the Bay Area Research Institute, (2) Vigeant‘s high school individualized education
plan (IEP), (3) a report from Children‘s Hospital in Oakland, California, and (4) an
audiological evaluation obtained through the John Muir Medical Center. Her stated
purpose was for Cohn to take steps to help Vigeant‘s understanding at trial. Cohn
acknowledged receipt of the information and told Scheer that Vigeant seemed to
understand Cohn.
       The records Scheer mailed to Cohn are contained in Exhibit E of Vigeant‘s habeas
corpus petition. Vigeant‘s 10th grade IEP merely states that Vigeant had an auditory
processing disability, had been diagnosed with ADD, and recommended a plan of action.
The evaluation obtained through the John Muir Medical Center was performed when
Vigeant was six and a half years old. The evaluation noted multiple weak areas in
Vigeant‘s central auditory processing system either due to developmental delay or some
innate factor.
       The audiological evaluation from the Children‘s Hospital in Oakland took place
when Vigeant was eight years old. The report stated that Vigeant had exhibited auditory
processing difficulties for linguistic information, but his extremely short attention span
could have confounded the test results. It was recommended that he undergo a speech
and language evaluation. The records note that Vigeant had a very short attention span.
       The Bay Area Research Institute records are from 2003 through 2004, when
Vigeant was 16 and 17 years old, and they document Vigeant‘s participation in a
pharmaceutical clinical trial. The classification of ―markedly ill‖ for Vigeant was based
on symptoms reported by Vigeant and his mother. Dr. Kathleen Toups, who conducted

                                             15
the clinical trial, wrote a letter in 2009 (after the verdicts in Vigeant‘s trial were returned)
stating that attention deficit hyperactivity disorder (ADHD) causes deficits in executive
functioning and that the impairment is not generally outgrown. This letter states that
Vigeant had a ―high level of functional impairment‖ due to ADHD. As we have noted,
however, the record indicates that Vigeant‘s symptoms were self-reported. The records
consist mainly of a chronology of Vigeant‘s use of study medication, which appears to
have been beneficial.
       Considering the totality of the information Cohn received, we cannot conclude that
trial counsel was ineffective in not investigating Vigeant‘s impairments further. ―[I]f the
record does not preclude a satisfactory explanation for counsel‘s actions, we will not, on
appeal, find that trial counsel acted deficiently.‖ (People v. Stewart (2004) 33 Cal.4th
425, 459.) Competent counsel, when presented with information that a client was
diagnosed in childhood with a central auditory processing deficit and ADD or ADHD and
that the client had participated in a clinical trial at the ages of 16 and 17, could reasonably
conclude that his impairments would not rise to the level of a viable defense. As Cohn
informed the trial court, he had met with Vigeant 20 to 25 times. He had gone over
discovery with Vigeant and discussed his version of events and defenses with him.
Furthermore, after high school Vigeant was accepted into the Marine Corps at the age of
19 and was four months short of his 21st birthday when the instant crimes were
committed.
       As for Hernandez‘s mental deficits, the jury heard Hernandez describe the extent
of his brain injuries and the effects the injuries had on him. At trial, Cohn cross-
examined Hernandez about the inconsistencies in his trial testimony and his former
statements with respect to his and the defendants‘ intent on the night of the murder, as
well as Vigeant‘s actions and attitude on the night of the shooting. He also pointed out
these inconsistencies to the jury during argument. He discussed Hernandez‘s injuries and
their effect on him as a factor in his unreliable testimony about Vigeant and as the sole
motive for his shooting Pettigrew. Counsel made appropriate use of Hernandez‘s



                                               16
injuries, and we do not believe he was ineffective in not obtaining Hernandez‘s medical
records and in not hiring an expert to analyze them.
       We do not agree with Vigeant‘s assertion that Cohn‘s actions do not merit being
considered a tactical decision due to his failure to investigate Vigeant‘s medical history.
In the declaration of Attorney James D. Gregory, which is essentially the same in the
habeas petition (Exhibit D) and the new trial motion, Gregory offers his opinion that an
attorney is unqualified to make a determination whether his client suffers from a mental
disorder, and Cohn failed to recognize the evidentiary significance of Vigeant‘s disability
and understand how it provided a potential meritorious defense to the charged offenses.
Likewise, Dr. Dondershine expressed the opinion that trial counsel‘s failure to hire an
expert meant that he failed to understand the relevance of the medical records to the issue
of legal intent, and he was unable to assess the weight to be given the medical evidence in
planning his defense strategy. The records Cohn received from Scheer do not support
these opinions. The information provided to Cohn indicated that Vigeant went untreated
for any mental disorder between the ages of eight and 17. Vigeant then participated in a
clinical trial for approximately seven months and did not seek to continue medication
after the clinical trial ended. He was then able to graduate from high school and join the
Marine Corps. ―A decision not to pursue testimony by a psychiatric expert, when no
mental state defense seems likely, is not unreasonable under Strickland. [Citation.]‖
(Wilson v. Henry (9th Cir. 1999) 185 F.3d 986, 990.)
       Given the strong presumption that Cohn‘s decision was reasonable and the
deference paid to counsel‘s tactical decisions, ―[a]n assessment of counsel‘s performance
does not include the distorting effects of hindsight, but rather evaluates such at the time
of the claimed errors and in light of all the circumstances. [Citation.]‖ (People v. Adkins
(2002) 103 Cal.App.4th 942, 950.) Reasonable counsel might question the merits of a
defense based on a disorder for which Vigeant sought no treatment. This was evident
from the medical records. Cohn did not need the aid of an expert to appreciate their
significance or lack thereof, especially since Vigeant exhibited no symptoms in his
dealings with counsel.

                                             17
       Moreover, Vigeant cannot show he suffered prejudice from a failure to consult
experts to investigate Vigeant‘s and Hernandez‘s medical and psychiatric issues. Vigeant
contends he suffered prejudice because, had the jury been able to view his participation in
the crimes in the light of his neuropsychiatric deficits, and had it been presented with a
medical reason to question the reliability of Hernandez‘s testimony, it is reasonably
probable it would have rejected the prosecutor‘s argument that Vigeant was a full and
equal participant. It would have rejected the idea that he had the required specific intent
in the charged offenses, or it would have determined that the People failed to prove intent
beyond a reasonable doubt. At the very least, he asserts, it is reasonably probable the
jury would have determined that the People failed to prove the special circumstances.
       With respect to Vigeant, when examining prejudice in the context of ineffective
assistance of counsel claims based on a duty to investigate, we also look to the strength of
the evidence. ―[A] verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming record support.‖
(Strickland, supra, 466 U.S. at p. 696.) In our previous opinion in case No. B218366, we
set out the evidence against Vigeant and rejected his argument that Hernandez‘s
testimony provided the only evidence of Vigeant‘s intent, and that the inconsistency of
this testimony and insufficient corroboration resulted in a mere suspicion of Vigeant‘s
guilt. Also, Vigeant‘s telephone calls with Detective McMahon provided substantial
evidence that Vigeant was fully capable of understanding what was said to him, even
over the telephone. These conversations also showed he was capable of imparting false
and evasive information when asked about his connection with Pettigrew. It is not likely
that the jury would have been persuaded that Vigeant did not fully appreciate the events
in which he participated on the night of the shooting if it had been informed that Vigeant
had been treated in his youth for ADHD and an auditory processing disorder.
       The additional examination of Vigeant by Dr. Timothy Collister, a psychologist,
does little to bolster the notion that Vigeant was prejudiced by Cohn‘s failure to
investigate. Dr. Collister wrote a report after examining Vigeant in preparation for the
new trial motion. This report is contained as Exhibit H in the written motion. Dr.

                                             18
Collister cites Dr. Toups‘s generalized comments about what ADHD can cause as part of
the basis for his recommending a neuropsychological evaluation of Vigeant prior to the
hearing on the new trial motion. Dr. Collister also stated that he believed Vigeant‘s
condition had remained stable over time. Dr. Collister believed this indicated Vigeant‘s
conditions were ―experienced‖ at the time of the crime. As we have pointed out, Vigeant
had managed to finish high school and become a Marine during this period of stability.
Given the fact that Vigeant received little treatment for his conditions throughout his life
and the fact that he was able to function with these deficits, it is not reasonably probable
that a jury would have found Vigeant lacked the required intent at the time of the offenses
due to his conditions.
       With respect to Hernandez, his medical records, as provided in the new trial
motion, do not add significantly to what he himself testified to, at least in the context of
the instant crimes. As noted, Hernandez himself testified at trial about his disabilities due
to his brain injury. Hernandez said he lost a third of his brain, which included the frontal
left lobe and a part of the frontal right lobe. When asked how his injuries affected him in
terms of his mental abilities, Hernandez said he was very compulsive and tended to do
things he normally would not do. He was also very emotional. He processed information
more slowly, and he had less empathy for others. He said he was very dependent on
alcohol and could not remember when certain conversations with the defendants took
place. He acknowledged it was difficult for him to recall what was said by the
defendants on the night of the shooting. Reasonable counsel could have determined that
Hernandez‘s testimony sufficiently exposed his limitations as a witness to the jury,
especially since Hernandez took responsibility for the shooting.
       Hernandez‘s medical records reveal little regarding any mental deficits he may
have suffered from as a result of the injury to his head. Most of the entries involve his
rehabilitation after his injury and various physical problems, unrelated to his injury, that
he suffered over the years since 2004. A report of a neuropsychological evaluation in
October 2004 states that Hernandez had intact perceptual and spatial skills, language,
attention, learning, and auditory memory ability. Hernandez exhibited extremely strong

                                             19
skills in his ability to recall a general fund of information and in visual memory ability.
Cognitive flexibility was somewhat weak but deemed likely to improve. This evidence
would have given the prosecutor a strong counterpoint to any defense expert testimony
about Hernandez‘s defects. This evidence, combined with Hernandez‘s demeanor and
frankness before the jury, leaves little possibility that his testimony at the trial of Vigeant
and Landers would have been discredited to a greater degree than it already was.
Furthermore, as we explained in our opinion in Vigeant‘s and Landers‘s appeals,
Hernandez‘s testimony was substantially corroborated by independent evidence. (People
v. Landers, supra, B218366.)
       We ―‗reverse convictions on the ground of inadequate counsel only if the record
on appeal affirmatively discloses that counsel had no rational tactical purpose for his act
or omission.‘‖ (People v. Zapien (1993) 4 Cal.4th 929, 980.) In cases where a defendant
claims that defense counsel should have presented particular evidence, ―[j]udicial
scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a
defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and
it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A
fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s
challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel‘s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‗might be considered sound trial strategy.‘
[Citation.] There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.‖ (Strickland, supra, 466 U.S. at p. 689.) ―[E]ven ‗debatable trial tactics‘ do not
‗constitute a deprivation of the effective assistance of counsel.‘ [Citations.]‖ (People v.
Miller (1972) 7 Cal.3d 562, 573-574.)

                                              20
       On this record, we believe counsel‘s actions were reasoned tactical decisions, and
Vigeant has failed to affirmatively show prejudice. Any presumed error on the part of
Cohn in failing to investigate Vigeant‘s and Hernandez‘s mental deficits is insufficient to
undermine confidence in the outcome of the trial. The trial court did not err in denying
Vigeant‘s motion for new trial, and Vigeant suffered no violation of his rights under the
Sixth and Fourteenth Amendments.
II. Lack of Evidentiary Hearing and Refusal to Appoint a Clinical
Neuropsychologist
       A. Vigeant’s Argument
       Vigeant contends that the trial court abused its discretion by refusing to hold an
evidentiary hearing on his new trial motion and refusing to appoint a clinical
neuropsychologist to examine him and give an opinion about his mental deficits.
According to Vigeant, such an expert opinion was necessary to establish his ineffective
assistance of counsel claim. Separately or cumulatively, these errors denied him his
rights to counsel, due process, equal protection, and the right to presentation of a defense.
Vigeant asserts that reversal is necessary because it is impossible to measure the effect of
the testimony he would have presented had he been able to subpoena trial counsel and
retain a neuropsychologist to examine him and to testify at an evidentiary hearing.
       B. Relevant Authority
       ―There is simply no authority for the proposition that a trial court necessarily
abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without
hearing live testimony.‖ (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14
Cal. 4th 394, 414.) ―California law affords numerous examples of a trial court‘s
authority, in ruling upon motions, to resolve evidentiary disputes without resorting to live
testimony.‖ (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201, and
authority cited therein.)
       Evidence Code section 730 provides in pertinent part: ―When it appears to the
court, at any time before or during the trial of an action, that expert evidence is or may
be required by the court or by any party to the action, the court on its own motion or on

                                             21
motion of any party may appoint one or more experts to investigate, to render a report as
may be ordered by the court, and to testify as an expert at the trial of the action relative to
the fact or matter as to which the expert evidence is or may be required. . . . .‖ (Italics
added.) ―Evidence Code section 730 provides for appointment of ancillary services at
public expense for indigent criminal defendants in noncapital cases only for purposes of
defense at trial on the issue of guilt.‖ (People v. Stuckey (2009) 175 Cal.App.4th 898,
908.) ―On appeal, a trial court‘s order on a motion for ancillary services is reviewed for
abuse of discretion. [Citations].‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1085,
overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Ake v.
Oklahoma (1985) 470 U.S. 68, 77; Stuckey, at p. 916.)
       C. Proceedings Below
       After reviewing the parties‘ briefs and hearing argument regarding the need to
hold an evidentiary hearing, the trial court denied the request. The court stated, ―At this
time, I am going to rule that the court will exercise discretion, deny motion to have an
evidentiary hearing as to whether or not there was a ineffective assistance of counsel.
But I did allow both parties to submit written brief as to why a new trial should be
granted, and I also have reviewed your request as to why the court should grant a motion
for new trial.
       D. No Abuse of Discretion or Error
       Vigeant contends that a hearing was necessary to resolve material disputed issues
of fact and to allow him the opportunity to establish he was prejudiced by counsel‘s
failure to investigate and consult and retain experts. He adds that the denial of an
evidentiary hearing violated his right to due process. Vigeant acknowledges that,
although there is no case law requiring a trial court to hold an evidentiary hearing when a
new trial motion is based on ineffective assistance of counsel, a trial court has the
discretion to hold such a hearing when the new trial is sought on the grounds of jury
misconduct. (See, e.g., People v. Hedgecock (1990) 51 Cal.3d 395, 415.) Vigeant urges
that the court must have the same discretion to hold a hearing to resolve material disputed
issues relating to ineffective assistance of counsel.

                                              22
       We agree that the trial court had this discretion, but we conclude that the court did
not abuse its discretion. People v. Williams (1997) 16 Cal.4th 635 is instructive on this
point. In that case, the defendant moved for a new trial, alleging jury misconduct and
presenting the declarations of three jurors who stated that the jury never reached a verdict
on the murder charges even though there were signed verdict forms. (Id. at p. 685.) The
trial court did not find the declarations credible and denied the motion without holding an
evidentiary hearing. (Id. at pp. 685-686.) The reviewing court found no ―manifest and
unmistakable abuse in discretion‖ and stated that the trial court could resolve any
disputed factual issue without need for an evidentiary hearing. (Id. at p. 686.)
       The same is true in the instant case and is even more evident. The trial court had
heard all the evidence during trial and had had the opportunity to observe trial counsel
and Vigeant in the courtroom. The new trial motion had many exhibits in support of
Vigeant‘s claim of ineffective assistance. Cohn had the opportunity to explain his actions
during the posttrial Marsden hearing, as discussed ante. Thus, the material facts in this
case were adequately explained by the voluminous information before the court,
combined with its own observations. The matter was fully capable of being resolved on
the record, and no evidentiary hearing was necessary. Given the great degree of latitude
accorded the trial court in these matters, there was no abuse of discretion. (People v.
Williams, supra, 16 Cal.4th at p. 686; People v. Dennis (1986) 177 Cal.App.3d 863, 873
[A defendant seeking a new trial must ―establish, by affidavit, oral testimony or reference
to the trial record, that his trial counsel was ineffective in some manner and that counsel‘s
ineffectiveness prejudiced him.‖ (Italics added.)])
       We also conclude the trial court did not err by refusing to appoint the
neuropsychiatric expert that Vigeant requested. Even if there was error, Vigeant suffered
no prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836 [error in the admission or
exclusion of evidence warrants reversal of a judgment only if an examination of ―‗the
entire cause, including the evidence,‘‖ discloses the error produced a ―‗miscarriage of
justice‘‖]; People v. Breverman (1998) 19 Cal.4th 142, 173.) It has been held that
―Evidence Code section 730 does not authorize the appointment of experts after trial in

                                             23
connection with sentencing proceedings. Nor do the federal or state Constitutions entitle
an indigent criminal defendant to improve his chances of a favorable sentencing choice
by having experts echo the arguments of defense counsel.‖ (Stuckey, supra, 175
Cal.App.4th at p. 905.)
       Vigeant argues that Stuckey applies narrowly to sentencing proceedings as
occurred in that case but not in the context of a new trial motion, and Vigeant faults
respondent for failing to respond to this argument. We believe it is not necessary to
determine the breadth of Stuckey‘s holding, since in the instant case, Vigeant suffered no
prejudice from the lack of another expert opinion, even one from a different type of
specialist. Such evidence would have been cumulative and of insignificant benefit given
the abundance of information on Vigeant‘s mental deficits in the record, including two
reports by experts. The issue before the court was clearly presented on the affidavits and
the results of tests already performed. There was no reasonable probability that there
would have been a different result had the trial court allowed Vigeant to consult a
neuropsychiatrist to further refine the details of his impairments for the court. There was
no abuse of discretion and no violation of Vigeant‘s constitutional rights.
III. Cruel and Unusual Punishment
       A. Vigeant’s Argument
       According to Vigeant, when his involvement in the instant crimes is viewed in
light of his neuropsychiatric deficits, his moral culpability is not that of a depraved killer.
Therefore, his LWOP sentence amounts to cruel and unusual punishment under the state
and federal Constitutions.
       B. Proceedings Below
       On April 30, 2012, Vigeant filed a motion to strike the special circumstance as
cruel and unusual punishment under People v. Dillon (1983) 34 Cal.3d 441, 488-489
(defendant‘s crime reduced to second degree murder after his immaturity, lack of
criminal history, and character were taken into account in determining he did not foresee
the risk he was creating) Vigeant relied on the assertion that the nature of the offense and
the offender showed that an LWOP sentence was disproportionate to his crime. Vigeant

                                              24
attached his social history, supporting documents, character letters, Dr. Collister‘s
psychological evaluation, and other exhibits to the motion. Over the prosecutor‘s
objection, the trial court allowed Vigeant to present several witnesses in support of the
motion in addition to argument.
       In denying the motion, the trial court stated, ―Defendant has demonstrated nothing
pursuant to Penal Code section 1385.1 that defendant‘s sentence would be cruel and
unusual. I have heard lots of testimony pursuant to the court‘s discretion to allow defense
to present some mitigating factors as to why the court should strike the enhancement
allegation, special circumstances allegation. And one of the arguments that you make is
that defendant should be granted a mercy by the court. David Pettigrew never got mercy
from anybody. He was shot, executed. And Mr. Vigeant was not a minor player, he
made calls. He was there the night before[4] and he was there during the actual killing of
Mr. Pettigrew. There is nothing in the evidence that indicates that Mr. Vigeant was
simply there and that his role was minor, at best.‖
       C. Relevant Authority
       Defining crime and determining punishment are matters uniquely legislative in
nature, and courts will not question the validity of legislatively enacted punishments
unless their ―‗―‗unconstitutionality clearly, positively, and unmistakably appears.‘‖‘‖
(People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) ―‗Reviewing courts . . . should
grant substantial deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well as to the discretion
that trial courts possess in sentencing convicted criminals.‘ [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.]‘ [Citation.]‖ (People v. Zepeda
(2001) 87 Cal.App.4th 1183, 1213–1214 [rejecting cruel and unusual punishment
challenge to § 12022.53, subd. (d)].) Because a defendant must overcome a


4      The evidence showed Vigeant received a parking ticket near Pettigrew‘s apartment
three days before the murder.


                                             25
―‗considerable burden‘‖ to show his sentence is disproportionate to his level of
culpability, findings of disproportionality have occurred with ―‗exquisite rarity in the case
law.‘‖ (People v. Em (2009) 171 Cal.App.4th 964, 972.)
       To succeed on a challenge under the cruel or unusual punishment provision of the
California Constitution, the defendant must show that the punishment is so
disproportionate that it ―shocks the conscience and offends fundamental notions of
human dignity.‖ (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) A reviewing court
must examine the nature of the offense and/or the offender, with particular regard to the
degree of danger both present to society; compare the challenged punishment to
punishments for more serious crimes in the same jurisdiction; and compare such
challenged penalty with the punishments prescribed for the same offense in other
jurisdictions having a similar constitutional provision. (Lynch, at pp. 425-427.)
       Under the federal Constitution, ―three factors may be relevant to a determination
of whether a sentence is so disproportionate that it violates the Eighth Amendment: ‗(i)
the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on
other criminals in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions.‘‖ (Ewing v. California (2003) 538 U.S. 11, 22.)
       D. No Cruel and/or Unusual Punishment
       Vigeant‘s motion and his appeal rest on the first Lynch factor—the nature of the
offender and the offense. Vigeant focuses on his mental deficits and contends they made
him significantly less culpable than the typical offender. Because of his disabilities, he
argues, he was more susceptible to peer pressure and was unable to comprehend and
foresee the consequences. His participation was inconsistent with his character, which
does not reflect dangerousness or a proclivity to violence.5 Therefore, the punishment
imposed does not fit the criminal.



5      Vigeant submitted a report by Amy York, a forensic social worker and member of
the National Association of Sentencing Advocates and Mitigation Specialists. The trial
court was also provided with many letters attesting to Vigeant‘s good character, trusting

                                             26
       We agree that Vigeant‘s nature as attested to by his friends and family is not that
of a vicious killer. Vigeant displayed a different nature, however, on the night of the
shooting, as evidenced by Hernandez‘s testimony and Vigeant‘s telephone calls to the
victim. Vigeant showed he could be aggressive. Even if he was following along with his
cousin, he made a choice to do so. Vigeant played with the gun on the long drive to
Pettigrew‘s apartment, and he agreed that Pettigrew should be killed if he did not comply.
He participated in shouting at Pettigrew, increasing the tension in those crucial moments
when Hernandez held a gun to Pettigrew‘s head and counted down the last seconds of
Pettigrew‘s life. Vigeant displayed a heedless and heartless nature throughout
Pettigrew‘s ordeal, as well as a capacity for violence, which was also evident in his
telephone messages to Pettigrew. The circumstances of the crime showed that Vigeant
was capable of fully participating in the cruel act of terrifying a victim with a gun to his
head and doing nothing to discourage the shooter from carrying out his threat. The cases
cited by Vigeant, which relate to defendants who were juveniles or mentally retarded, do
not aid his cause. (See, e.g., Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455];
Graham v. Florida (2010) 560 U.S. 48; Roper v. Simmons (2005) 543 U.S. 551; Atkins v.
Virginia (2002) 536 U.S. 304; People v. Caballero (2012) 55 Cal.4th 262, 268.)
       Vigeant makes no showing on the second and third Lynch factors, which require
the comparison of Vigeant‘s punishment with punishments in California for more serious
crimes and the punishment imposed with punishments in other states. Because Vigeant
makes no representations on these factors, we do not consider them.
       In sum, we do not find Vigeant‘s punishment to be out of all proportion with the
offenses and so disproportionate as to ―shock[] the conscience and offend[] fundamental
notions of human dignity.‖ (Lynch, supra, 8 Cal.3d at p. 424; People v. Meneses (2011)
193 Cal.App.4th 1087, 1094.)




personality, his nature as a follower who is easily manipulated, and his susceptibility to
acting on impulse.


                                             27
       With respect to the federal standard for finding a sentence to be cruel and unusual,
a three-part analysis to determine whether a sentence was disproportionate to a crime was
set out in Solem v. Helm (1983) 463 U.S. 277. Solem‘s test did not retain the support of a
majority of the Supreme Court in Harmelin v. Michigan (1991) 501 U.S. 957. In that
case, Justice Scalia, joined by Chief Justice Rehnquist, concluded Solem
was wrongly decided and that the Eighth Amendment does not guarantee proportionality
of sentences. (Harmelin v. Michigan, at p. 965.) Justice Kennedy, joined by Justices
O‘Connor and Souter, concluded that the Eighth Amendment prohibits only sentences
that are ―‗grossly disproportionate‘ to the crime.‖ (Id. at p. 1001 (conc. opn. of Kennedy,
J.).) Justice Kennedy noted that ―‗―[o]utside the context of capital punishment,
successful challenges to the proportionality of particular sentences [are] exceedingly
rare.‖‘‖ (Ibid.)
       The federal gross proportionality test is similar to, and accepts the same analysis
as, the first technique in the three-part test of Lynch. In Harmelin v. Michigan, the United
States Supreme Court upheld a sentence of life without possibility of parole for the
defendant‘s first felony offense of possession of 672 grams of cocaine. (501 U.S. at
p. 961.) Vigeant‘s crime was a violent felony that resulted in the death of a young man.
His sentence is not grossly disproportionate, nor is it ―disproportionate to the defendant‘s
personal responsibility and moral guilt.‖ (People v. Marshall (1990) 50 Cal.3d 907, 938.)
His lack of a criminal history and his mental deficiencies are outweighed by the gravity
of the offense and the circumstances surrounding its commission. Therefore, the
sentence is not cruel and unusual under the California or federal Constitutions.
IV. Section 654 and Count 2
       A. Proceedings Below
       After denying Vigeant‘s new trial motion, the trial court imposed the same
sentence it had imposed after trial. For the first degree murder with special
circumstances in count 1 (murder committed during the commission of residential
burglary and attempted robbery), the court imposed life without the possibility of parole.
For the attempted home invasion robbery in count 2, the court imposed 54 months to be

                                             28
served consecutively with an additional consecutive year for the principal-armed
enhancement under section 12022, subdivision (a)(1). The trial court stayed the sentence
for the burglary in count 3 under section 654.
       B. Vigeant’s Argument
       Vigeant contends that the trial court was required by section 654 to stay the term
imposed in count 2 for attempted robbery, just as it did with the burglary count. He
argues that the attempted robbery count is indivisible from the special circumstance of
murder in the commission of an attempted robbery. The same evidence that established
the substantive offenses of burglary and attempted robbery also established the burglary
and attempted robbery special circumstances.
       B. Relevant Authority
       Penal Code section 654 provides in pertinent part: ―An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.‖
       Section 654 protects against multiple punishment rather than multiple conviction.
(People v. Harrison (1989) 48 Cal.3d 321, 335.) A defendant thus may not be punished
for two separate crimes which arise either out of a single act or out of an indivisible
transaction. The indivisibility or divisibility of criminal conduct depends upon whether
the defendant has a single or separate criminal objectives. (People v. Latimer (1993) 5
Cal.4th 1203, 1208; Harrison, at p. 335.) That is, ―if all of the offenses were merely
incidental to, or were the means of accomplishing or facilitating one objective, defendant
may be found to have harbored a single intent and therefore may be punished only once.‖
(Harrison, at p. 335.)
       If, on the other hand, ―the [defendant] entertained multiple criminal objectives
which were independent of and not merely incidental to each other, he may be punished
for independent violations committed in pursuit of each objective even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct.‖ (People v. Beamon (1973) 8 Cal.3d 625, 639.)

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       Whether multiple convictions were part of an indivisible transaction is primarily a
question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such
a finding under the substantial evidence test. We consider the evidence in the light most
favorable to the People and presume the existence of every fact the trier could reasonably
deduce from the evidence. (Ibid.; see People v. Osband (1996) 13 Cal.4th 622, 730.)
       C. Separate Punishment Warranted
       We conclude that substantial evidence supported the trial court‘s implied finding
that Vigeant held separate objectives in the attempted robbery of Pettigrew and in the
murder. At the sentencing of Vigeant‘s codefendant, Landers, on August 3, 2009, the
court heard argument on the issue of whether the sentences in counts 2 and 3, attempted
robbery and residential burglary, respectively, should be stayed under section 654. 6 The
prosecutor argued that section 654 applied only to the residential burglary count.
Landers‘s counsel argued that both the burglary and attempted robbery sentences had to
be stayed because the jury had the option to convict the defendants of felony murder, and
there was no indication which theory or theories of murder the verdict rested upon. In
sentencing Landers, the trial court imposed a consecutive sentence in count 2, stating, ―I
don‘t find that there is 654, because 654 is designed to not—to make sure that the
defendant is not punished for the same crime. However, this is not the same crime,
because you don‘t necessarily need to have committed robbery to commit a murder.‖
The trial court ultimately sentenced Vigeant to the same sentence as Landers.
       Although the trial court‘s finding was inartfully phrased, it is clear that it made an
implied finding that Vigeant, as well as Landers, held a separate intent and objective in
committing the attempted robbery. We observe that the attempted robbery was a separate
and distinct crime preceding the murder by as much as 20 minutes, according to
Hernandez. Therefore, the trial court legitimately could have decided on the facts before
it that a separate sentence was proper.


6     Vigeant‘s sentencing was continued due to Cohn‘s unavailability and because
Vigeant expressed his desire to fire Cohn and obtain appointed counsel.


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       Even if Vigeant‘s offenses are seen as a continuous course of conduct, however,
the crimes he committed are not indivisible. In People v. Harrison, supra, 48 Cal.3d at
page 335, our Supreme Court explained in connection with section 654, subdivision (a):
―[B]ecause the statute is intended to ensure that defendant is punished ‗commensurate
with his culpability‘ [citation], its protection has been extended to cases in which there
are several offenses committed during ‗a course of conduct deemed to be indivisible in
time.‘ [Citation.] [¶] It is defendant‘s intent and objective, not the temporal proximity of
his offenses, which determine whether the transaction is indivisible.‖
       In People v. Osband, supra, 13 Cal.4th 622, for example, the trial court imposed
consecutive sentences for the rape and robbery of one of Osband‘s victims. The victim
was stabbed to death and raped, and cash and other items were taken from her home. (Id.
at pp. 653-654.) Osband was found guilty of murder, burglary, robbery, and forcible
rape. The jury found true three special-circumstance allegations, including the
circumstance that the murder was committed during a robbery and after raping the victim.
(Id. at pp. 652-653.) Osband claimed, inter alia, that the court erred under state law
(§ 654) in imposing consecutive sentences for the rape and robbery because the crimes
were committed for a single objective. (Osband, at p. 730.) The People responded that
there was no question of a single objective, since the court sentenced Osband on the rape
and robbery and therefore implicitly found that the crimes involved more than one
objective. (Ibid.) The People asserted this was a factual determination that had to be
sustained on appeal if supported by substantial evidence. The California Supreme Court
agreed with the People that substantial evidence sustained the court‘s implicit
determination that Osband held more than one objective when he committed the crimes.
The court declined to stay any portion of the sentence on section 654 grounds. (Osband,
at pp. 730-731.)
       Vigeant‘s claim also fails under the reasoning of People v. Cleveland (2001) 87
Cal.App.4th 263. In that case, Cleveland was seen beating an elderly man with a two-by-
four piece of wood inside the man‘s apartment. The witness saw Cleveland leaving the
victim‘s apartment carrying the victim‘s Walkman radio. Cleveland was arrested and

                                             31
eventually convicted of attempted murder, robbery, and assault with a deadly weapon.
(Id. at p. 267.) Cleveland argued on appeal that his robbery sentence should have been
stayed under section 654 because the robbery and attempted murder occurred during an
indivisible course of conduct pursuant to the sole objective of robbing the victim.
(Cleveland, at p. 268.) In addition to reiterating that a defendant may be punished for
each violation committed in pursuit of each separate objective even though the violations
were parts of an otherwise indivisible course of conduct (id. at pp. 267-268), the court
added that ―[a]s the court in People v. Nguyen (1988) 204 Cal.App.3d 181, 191,
observed: ‗at some point the means to achieve an objective may become so extreme they
can no longer be termed ―incidental‖ and must be considered to express a different and
more sinister goal than mere successful commission of the original crime. . . . [¶] . . .
[¶] . . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence
or other criminal acts far beyond those reasonably necessary to accomplish the original
offense.‘‖ (Id. at p. 272.) Likewise, in the instant case, Vigeant‘s aiding and abetting of
the murder of Pettigrew cannot be seen as part and parcel of the goal to rob him.
Vigeant‘s sentence on count 2 stands.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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