Filed 7/31/14 P. v. Gotell CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064206

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD234113)

JOSEPH GOTELL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter

Deddeh, Judge. Affirmed.

         Allison H. Ting, under appointment by the Court of Appeal.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.


         Joseph Gotell appeals from a judgment convicting him of first degree murder with

an enhancement for personal discharge of a firearm. He argues (1) the court erred in
finding him competent to stand trial, and (2) his sentence of 50 years to life is

unconstitutional cruel and unusual punishment. We reject these contentions and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On the afternoon of May 14, 2011, defendant (age 83) fatally shot his wife,

Deborah Meeks (age 57), while she was walking with him near the downtown San Diego

residence where she was staying.

       Jael Barry, Meeks's adult daughter, testified that after Meeks and defendant started

dating in 2004 or 2005, she did not see much of her mother because defendant did not

want her family around, and defendant and her mother would fight when her mother got

together with her family. On occasions when Barry saw her mother was not happy with

defendant, Barry tried to help her mother leave him by finding a place for her to live. On

one of these occasions, defendant left Barry a voice mail threatening to kill Meeks if she

did not return to him.

       Meeks's mother, who was ill, lived in a single room occupancy hotel in downtown

San Diego, and Meeks visited her nearly every day. On occasions when defendant was at

the hotel, he was required to stay in the lobby. The hotel front desk manager testified that

at first defendant's and Meeks's interactions were "normal," but later they became

"abusive." The manager and the hotel housekeeper noticed defendant would frequently

get angry at Meeks when he thought she stayed too long in her mother's room.

       During the six months before the shooting, Meeks was living with her mother at

the hotel. One evening defendant arrived at the hotel looking for Meeks; he was very

angry; when Meeks came downstairs they started arguing; and when she tried to get away

                                              2
he grabbed her by the arm and slapped her. The housekeeper testified Meeks told her she

wanted to end her relationship with defendant but she was afraid he would kill her if she

did. About three or four days before the shooting, Meeks told the housekeeper she was

going to leave defendant and she would never see the housekeeper again.

       Several eyewitnesses described the shooting at trial. As defendant and Meeks

were walking on the street, defendant pushed Meeks "really hard" in the chest area,

causing her to hit the glass window of a store. Meeks, dazed from the push, slid to a

sitting position against the building and tried to fight with her hands as defendant held her

down with one of his hands. Defendant then pulled out a gun with his other hand and

started shooting. When he was finished shooting, defendant tossed the gun into a planter

box, moved a short distance away, and remained on the sidewalk. Two security guards

who were nearby ran to the scene and detained defendant until the police arrived. When

a security guard asked him why he did this, defendant said, " 'That fucking bitch, I have

been putting up with this shit for years . . . .' "

       After being transported to the hospital, Meeks died the next day. Meeks's injuries

included five gunshot wounds, one in the temple area of her head, one in the rear of her

neck, and three in her arm.

       In defense, defendant presented testimony from psychologist Richard Kennerly

who stated defendant had suffered at least two strokes; he had undergone brain surgery

due to bleeding in his brain; and he had brain damage, vascular dementia, and cognitive

impairments. Dr. Kennerly opined that due to his dementia and mental impairments,

defendant experienced paranoia, some delusions, and difficulty controlling his impulses

                                                 3
when feeling very emotional. When questioned on cross-examination about defendant's

impulsivity, Dr. Kennerly opined a person who arms himself with a gun could either be

engaging in a premeditated act to kill or could be carrying the gun due to a paranoid state

with no intention of using it to shoot someone.

Jury Verdict and Sentence

       The jury found defendant guilty of first degree premeditated murder with a finding

that he personally discharged a firearm causing death. He was sentenced to 50 years to

life, consisting of 25 years to life for the murder and 25 years to life for the personal gun

discharge.

                                       DISCUSSION

                            I. Challenge to Competency Finding

       After several competency evaluations and receipt of expert testimony at a

competency trial, the court found defendant competent to stand trial. Defendant argues

this finding was erroneous because the evidence showed he suffered from dementia and

had severe brain damage which rendered him unable to understand the proceedings and

rationally assist his attorney with his defense.

                                         Background

       On several occasions prior to trial defense counsel told the court that defendant

would not communicate with her, and defense counsel eventually became convinced he

was not competent to stand trial. The trial court issued several orders that defendant be

evaluated for competency, and appointed two mental health professionals (psychologist



                                              4
Valerie Rice and psychiatrist Matthew Carroll) to conduct the evaluations. Dr. Kennerly

also evaluated defendant for the defense.

      Dr. Kennerly interviewed defendant for about two hours in July 2011, and Dr.

Rice interviewed him for about one hour in October 2011. In January 2012, defendant

refused to meet with defense counsel. He also refused to cooperate with any further

competency evaluations, including a second interview attempted by Dr. Kennerly in

January 2012 and interviews attempted by Dr. Carroll in March and August 2012. When

Dr. Carroll contacted defendant in March 2012 and tried to ask him questions, defendant

said he was fine; he was taking "the Fifth"; and there was already a prior competency

report. Dr. Carroll told him the judge had ordered another evaluation, and defendant

responded "he's not getting it." When Dr. Carroll said defendant's attorney would also

like another evaluation, defendant responded "she's not helping me." When defendant

was brought to the interview room in August 2012 to meet with Dr. Carroll, defendant

told the deputies he had seen Dr. Carroll before and did not want to talk to him anymore.

      At the competency trial in November 2012, Dr. Kennerly testified on behalf of the

defense, and Drs. Rice and Carroll testified on behalf of the prosecution. Dr. Kennerly

opined that defendant had moderate dementia and he was not competent to stand trial. In

contrast, Drs. Rice and Carroll opined that even assuming defendant had some level of

dementia, he was competent to stand trial.

      Defense counsel also wanted to testify to describe her observations concerning

defendant's incompetency, but defendant declined to waive the attorney-client privilege

for this purpose. When queried by the court on two occasions, defendant said he

                                             5
understood the privilege; he did not want to waive it; his attorney was not a doctor; he did

not want his attorney to bolster the doctors' testimony; and he did not want to "cut her

loose." At the competency hearing when defendant was asked if he wanted to testify, he

responded, "I'm all right. I'm okay. [¶] . . . [¶] . . . I don't want to testify."

                                     The Experts' Opinions

       Defendant, age 83, told the experts that he had a third grade education; he had

suffered three strokes; the latest one was two years ago; and one stroke required surgery

on the left side of his brain. His medical records showed he had suffered a substantial

"subdural hematoma," which required surgery to drain blood and fluid from his head.

The experts agreed defendant showed no signs of psychosis, hallucinations, or delirium.

Further, he was oriented to place (i.e., he knew he was in jail). When questioned about

the offense during a recorded police interview and the competency interviews, defendant

cried and described being hurt because his wife was seeing other men.

Defense Expert Opinion

       The defense expert (Dr. Kennerly) diagnosed defendant with "moderate

impairment" dementia which had been progressively developing for at least five years.

His dementia symptoms included significant difficulty in finding the appropriate words to

use when speaking; tangential speaking and the inability to stay on a subject for more

than a minute even after redirection back to the topic; paranoia; lack of orientation as to

time; and a dramatic difference between his score on a test measuring verbal ability as

compared to a test measuring nonverbal ability. Regarding his confusion as to time,

defendant thought the year was 2000 rather than 2012, and thought he was 78 rather than

                                                 6
83 years old. Defendant's paranoia included a belief his attorney was working with the

prosecution to make sure he would be in jail. As compared to other people his age,

testing reflected he was low average on concentration and attention; he was mildly

impaired on memory, verbal fluency, and use of visual information; he had problems

with executive functioning (the ability to understand things); and he had a slowed ability

to engage in motor output (i.e., drawing).

       Dr. Kennerly testified defendant's overall testing score was in the "impaired range,

at 2 percent," meaning 98 percent of the people in his age group perform better than he

does in terms of cognitive functioning. His overall "full scale" IQ was 81, which was

within the normal range. However, there was a sharp imbalance between his nonverbal

ability (controlled by the right side of the brain where he had no surgery) and his verbal

ability (controlled by the left side of the brain where he had the surgery). His nonverbal

ability was "more or less intact" and in the normal range (62nd percentile), but his verbal

ability was "impacted a good deal" (.26th percentile) which meant he was impaired in his

ability to engage in verbal reasoning or any kind of verbal abstraction.

       Dr. Kennerly explained that persons with defendant's level of dementia might

sometimes appear cooperative and attentive but they would have difficulty tracking over

a period of time. Defendant could understand concrete, simple matters, but he was

cognitively unable to handle large, complex or abstract matters and his ability to make

important decisions was akin to a seven-year-old. He had a limited ability to focus; his

thoughts would wander; he would have difficulty understanding information that was not

simple and that could not be conveyed in a relatively short period of time; and he would

                                             7
be unable to pay attention long enough to see the "big picture" of what he was dealing

with. His ability to follow witness testimony would be "spotty" because he would miss

and forget critical information. Although he would be able to recall some things that

occurred at trial, he would not be able to recall enough to follow the progression of the

trial from day to day.

       Dr. Kennerly further opined defendant would be able to provide information to

defense counsel, but would not be able to engage in verbal abstract thought, including

identifying matters that might need to be addressed or assisting with generation of cross-

examination questions. As to control over his impulses at trial, Dr. Kennerly stated

defendant was not so impaired that he would act on "everything that crosses his mind

every moment," but his self-control was impaired and if he was "flooded with feelings"

he would have a hard time controlling his impulses. Also, Dr. Kennerly explained people

with dementia often display defensive anger to hide their impairment and do not

understand people are trying to help them, and opined defendant's lack of cooperation

with his attorney was not a conscious choice but a result of his dementia and paranoia.

Prosecution Expert Opinions

       In contrast, Dr. Rice testified that although defendant had some mild difficulties

with the chronology of events, he was oriented as to time; for example, he knew he was

going to be 84 on his next birthday and identified when his crime occurred. During the

interview with Dr. Rice, defendant's thinking was "fairly logical and linear"; he did not

ramble or speak about topics unrelated to her questions; and although he would

occasionally become "a little bit tangential" he returned easily to the topic when

                                             8
redirected. Dr. Rice noted that in defendant's jail progress notes, the jail doctor reported

defendant provided a "rather convoluted story about being mistreated by the legal

system"; defendant told the jail doctor he had seen a psychiatrist after his brain surgery to

see if the surgery "had done something to his head"; and defendant's thoughts were

"linear to circumstantial and over-detailed."1 However, the jail doctor assessed there was

no clear evidence of psychosis or psychiatric illness and no need for medication. Further,

Dr. Rice observed that during the recorded interview with the police, defendant was

articulate; at times he was "over-detailed" but could be redirected; and there were no

suggestions he was delusional, having problems following the line of questioning, or

having cognitive or psychiatric difficulties that impaired his ability to participate

rationally in the interview.

       When questioned to ascertain his understanding of the nature of the proceedings

against him, defendant told Dr. Rice that people could plead not guilty, guilty, or "no

novo"; a plea bargain was when you are offered something by the district attorney which

you can accept or not; if he was found guilty he would be sentenced and "do time"; and if

he was found not guilty he would be released. He knew he had been charged with

murder and correctly described the roles of the various court personnel.2 Dr. Rice




1     Dr. Rice explained linear thoughts were normal, logical and sequential;
circumstantial thoughts were off-topic and "slightly worse than being tangential"; and
over-detailed meant giving a lot of details.

2      In her written report, Dr. Rice stated defendant said the judge was to " 'represent
the law' "; the district attorney was " 'to bring the case to court' " and was on the side of
                                               9
assessed defendant understood what was happening in his case and the strategies

available to him, and he had the capacity to assist his counsel in a rational manner if he

chose to do so. Defendant's capacity to cooperate rationally with his attorney was

supported by his ability to sit through a one-hour competency interview with Dr. Rice

and answer her questions in a "fairly articulate, straightforward manner."

       Dr. Carroll, who acknowledged his evaluation was limited because he was not able

to personally interview defendant, reached essentially the same conclusions as Dr. Rice

based on his short contact with defendant and his review of the various reports and the

recorded police interview. Dr. Carroll testified that during the five-minute conversation

when defendant refused to be interviewed, defendant's answers were logical and he did

not appear paranoid to Dr. Carroll. Dr. Carroll stated defendant's interview with Dr. Rice

reflected defendant had a basic understanding of what was happening in his case,

including he knew why he was in jail and that he was charged with murder, he

understood the roles of the court personnel, and he knew he could agree to a plea bargain.

Further, when interviewed, defendant showed he could cooperate and talk about what

occurred during the crime, including that his wife was cheating on him, he was upset

when he went to confront her, and he "just snapped."

       Drs. Rice and Carroll diagnosed defendant with adjustment disorder with

depressed mood; Dr. Carroll added a diagnosis of "possible vascular dementia" based on

defendant's stroke. The prosecution experts questioned the accuracy of Dr. Kennerly's


the state; the public defender was to " 'defend' "; and the jury was to " 'figure out the
truth. They offer a verdict of guilty or not guilty.' "
                                              10
moderate dementia diagnosis, explaining if such matters as defendant's limited level of

education, ethnicity, and fatigue during the testing process were taken into account, Dr.

Kennerly's test results suggested his dementia was mild rather than moderate. Further,

there were no indications that his cognitive deficits caused a serious impairment in his

daily functioning, or that they caused him to be unable to understand the basics of what

was occurring in his case or to rationally assist his counsel.

       These experts stated to be competent to stand trial, a defendant did not need to

have a detailed legal understanding, but only needed to understand the basics of the

proceedings. They noted Dr. Kennerly's examination of defendant failed to address

defendant's understanding of the legal proceedings, and defendant's statements during the

interview with Dr. Rice reflected he understood the basics and was able to cooperate.

       Additionally, the prosecution experts did not view defendant as suffering from

paranoia that made him incapable of cooperating with his counsel. Instead, they assessed

he may have refused additional competency evaluations because he was frustrated with

the repeated evaluations and saw no purpose for more. Although it appeared he

distrusted the legal system and his attorney, the experts stated this was common among

criminal defendants, who often "tak[e] out" their feelings of frustration and anger on

those who are trying to work on their behalf and believe their attorneys are not helping

them or doing what they want.

         Other Miscellaneous Statements by Defendant During the Proceedings

       The experts also addressed the significance of defendant's apparent fixation on a

belief that he had not been arraigned. During the course of the proceedings, defendant

                                             11
repeatedly complained he had not been arraigned and his case should therefore be

dismissed, even though the court explained to him that he had been arraigned. Dr.

Kennerly testified defendant's repeated complaints on this point could be the result of his

dementia in that he does not remember the arraignment proceeding, or could be the result

of a fixed delusion that would not change even if contrary evidence was presented to him.

In contrast, Drs. Rice and Carroll testified his repeated comments about the arraignment

could be caused by his limited education and lack of understanding of specific legal

jargon and how the judicial process worked. Dr. Rice opined his confusion did not rise to

the level of being unable to learn about how the process worked. Dr. Carroll stated

someone may have told him an arraignment had to occur in a certain time or the case

could not go to trial and he was "sticking with that" as a defense, but this did not show his

belief was related to a mental illness.

       During the competency trial defense counsel queried Dr. Kennerly about

statements made by defendant during a break in Dr. Kennerly's testimony, in which

defendant essentially stated Dr. Kennerly "came and asked him to draw a box, but there

was no interview and there was no discussion." When defense counsel told Dr. Kennerly

that defendant said they had met only for 20 minutes, defendant interjected "45

[minutes]." Continuing with her questioning, defense counsel asked Dr. Kennerly if it

was true, as claimed by defendant during the break, that they met for 45 minutes, there

was no discussion, defendant did not take any tests, and at one point Dr. Kennerly told

him that he could not keep talking to defendant and he had to go. Dr. Kennerly

responded they met for about two hours, they had an extensive conversation, he did

                                             12
administer the tests, and it was defendant who reached a point of fatigue and was not

willing to continue with any more testing.

                                   Trial Court's Ruling

       After the presentation of evidence, the prosecutor argued that although defendant

may have some form of dementia, the record showed he understood what was happening

and he was making volitional choices about whether to interact with people and whether

to assist his counsel. The prosecutor stated defense counsel's reopening of her

examination of Dr. Kennerly based on defendant's comments during the break showed

defendant was listening during Dr. Kennerly's testimony even if defendant's assertions

were "misguided or not necessarily true." Further, when the court asked defendant if he

wanted to waive the attorney-client privilege, defendant's response was logical, coherent

and unequivocal.

       Defense counsel argued the preponderance of the evidence showed defendant had

dementia; he was confused and misunderstood things; he was refusing to meet with the

doctors and defense counsel; and he was not capable of rationally assisting counsel.

       The court found defendant understood the nature of the proceedings; he was

capable of assisting his counsel; and if he was choosing not to cooperate this was a

volitional choice not the result of dementia. The court stated defendant may be confused

about some things and sometimes "get off track," but his interview with Dr. Rice showed

it was "easy to get him back on track," and the in-court discussion of his attorney-client

privilege reflected his ability to think and make a decision. The court also observed Dr.

Kennerly's evaluation failed to address the details of the relevant forensic questions, such

                                             13
as whether defendant knew what his attorney did and what his defense was, and it was

not unusual for unsophisticated criminal defendants such as defendant to fixate on what

they perceive as a technical defense when they cannot deny they committed the crime.

Regarding defense counsel's claim defendant could not assist in his defense, the court

commented it did not understand what level of assistance defense counsel thought was

required in this particular case, and it appeared defendant "understands what's

happening." The court concluded the defense had not shown defendant was incompetent

to stand trial.3

                                         Analysis

       A defendant is incompetent to stand trial if the defendant has a mental disorder

that makes the defendant "unable to understand the nature of the criminal proceedings or

to assist counsel in the conduct of a defense in a rational manner." (People v. Dunkle

(2005) 36 Cal.4th 861, 885.) The existence of mental impairments or cognitive deficits

do not, standing alone, mean the defendant is incompetent to stand trial. (See, e.g.,

People v. Mai (2013) 57 Cal.4th 986, 1035-1036, fn. 17 [competent even though

defendant had possible brain damage]; People v. Koontz (2002) 27 Cal.4th 1041, 1064

[competent even though defendant engaged in "rambling, marginally relevant speeches"

suggesting some sort of mental illness].) The courts have recognized that although self-


3       After the trial court's ruling on competency and as the proceedings continued on
various dates, defense counsel again requested a competency determination based on
defendant's ongoing statements suggestive of confused thinking. The court denied the
request, stating it believed defendant was "choosing to believe what he wants to believe
to further his narrative that he's been wronged somehow by the system. I think he
understands what's going on in court."
                                            14
representation may be impeded by a defendant's " ' "[d]isorganized thinking, deficits in

sustaining attention and concentration, impaired expressive abilities, anxiety, and other

common symptoms of severe mental illnesses . . . ," ' " these symptoms do not necessarily

prevent the defendant from being able to work with defense counsel and " ' "play the

lesser role of represented defendant." ' " (People v. Johnson (2012) 53 Cal.4th 519, 527

[discussing standard for self-representation].)

       A defendant is presumed competent and bears the burden of showing

incompetency by a preponderance of the evidence. (People v. Dunkle, supra, 36 Cal.4th

at p. 885; People v. Marshall (1997) 15 Cal.4th 1, 31.) On appeal, we determine whether

substantial evidence, viewed in the light most favorable to the ruling, supports the finding

on competency. (Dunkle, supra, at p. 885.)

       Drawing all reasonable inferences in favor of the court's ruling, the record

supports the competency finding. During a one-hour interview, Dr. Rice observed

defendant to be logical and linear and able to stay on topic with some redirection.

Likewise, the record supports he was able to rationally talk about the facts of the offense

from his perspective during a recorded interview with the police. All experts agreed he

had no psychoses or hallucinations that placed him out of touch with reality. He

exhibited a basic understanding of the criminal proceedings against him and the role of

the court personnel. Although on some occasions defendant appeared to be speaking in a

confused or less than fully rational manner, on other occasions he was able to engage in

logical communications and make decisions, including whether to cooperate with

additional competency evaluations, waive the attorney-client privilege, and testify at trial.

                                             15
The court could reasonably assess that although he might be a difficult client due to his

educational level, age, and possible dementia causing confused thinking and memory

deficits, he had sufficient cognitive abilities to describe to defense counsel what occurred

during the offense and to understand the basics of what was occurring in the proceedings.

Further, the court could ascertain that to the extent defendant might have difficulty

understanding the complexities of the legal proceedings and the progress of his trial, his

representation by counsel ensured that he would be informed of what was occurring and

have a fair presentation of the defense case.

       There was nothing in the testimony of the defense expert that compelled the court

to find defendant incompetent to stand trial. Dr. Kennerly acknowledged defendant could

understand and communicate simple information, and the court could reasonably

determine this was sufficient to allow defendant to understand the proceedings and assist

his counsel with his defense. Although Dr. Kennerly opined defendant's refusal to

cooperate with his counsel was caused by his dementia and paranoia, the prosecution

experts disagreed and instead attributed it to a distrust of the legal system and counsel, a

perspective not uncommon among criminal defendants. (See, e.g., People v. Welch

(1999) 20 Cal.4th 701, 742 [competent even though defendant had "paranoid distrust of

the judicial system" and claimed "his counsel was in league with the prosecution"].) The

court could properly find defendant's mental state did not rise to the level of paranoia

inhibiting his conscious choices and his decision whether to cooperate was within his

control.



                                                16
       To support his challenge to the court's competency finding, defendant argues Dr.

Rice used an overly high incompetency standard by requiring a severe mental illness or

severe mental deterioration, and the trial court may have been misled and likewise used

this improper standard. The contention is unavailing. The record shows Dr. Rice ruled

out any severe debilitating mental conditions when evaluating defendant, but there is

nothing to suggest either she or the court was using these conditions as the defining

competency standard rather than merely as relevant factors to consider. To the contrary,

both Dr. Rice and the court referred to the correct standard: whether the defendant can

understand the nature of the proceedings and rationally assist in his defense.

       The record supports the court's finding on competency.

                II. Claim that Sentence Is Cruel and Unusual Punishment

       Defendant argues that given his age, his sentence of 50 years to life is effectively a

sentence of life without parole. (See People v. Caballero (2012) 55 Cal.4th 262, 265,

268-269 [110-year life sentence with parole can, for constitutional purposes, equate to

life without parole].) For the first time on appeal, he contends imprisoning him for the

remainder of his life is unconstitutional cruel and unusual punishment because he is

severely brain-damaged and—akin to juvenile and mentally retarded defendants—this

diminishes his moral culpability and makes his life sentence lack any legitimate

penological justification.

       A sentence violates the constitutional proscription against cruel and/or unusual

punishment if the punishment is grossly disproportionate to the severity of the crime or

the defendant's individual culpability, or it shocks the conscience and offends

                                             17
fundamental notions of human dignity. (People v. Hines (1997) 15 Cal.4th 997, 1078;

People v. Russell (2010) 187 Cal.App.4th 981, 993.) When evaluating the

constitutionality of a punishment, the court examines the circumstances of the offense,

extent of the defendant's involvement, manner in which the crime was committed, and

consequences of the defendant's acts, as well as the defendant's personal characteristics,

including age, prior criminality, and mental capabilities. (Hines, supra, at p. 1078.) On

appeal, we view the facts in the manner most favorable to the judgment and then resolve

the issue as a matter of law. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)

       Defendant's claim of unconstitutionality is unavailing. First, it is not shocking to

send him to prison for the rest of his life for fatally shooting his unarmed wife, and the

sentence serves the legitimate purpose of protecting society from any further violent

conduct by him. Second, the factual issue of defendant's reduced moral culpability due to

mental deficits was not addressed by the trial court because it was not raised below;

hence this claim is forfeited on appeal. (People v. Russell, supra, 187 Cal.App.4th at p.

993.) Further, on the record before us there is nothing that compels a finding that

defendant's mental deficits were so severe that his moral culpability for the shooting was

reduced.

       Third, even if, arguendo, defendant was viewed as less morally culpable due to

brain damage from his strokes and brain surgery, he has not shown that imprisonment for

the remainder of his life is cruel or unusual punishment. The cases he has cited to

support his argument are distinguishable. For example, in Miller v. Alabama (2012) ___

U.S. ___ [132 S.Ct. 2455, 2460, 2466-2469], the high court held that under constitutional

                                             18
proportionality principles, when sentencing juvenile offenders for murder, trial courts

should not be required to impose life sentences without the possibility of parole, but

rather should have the discretion to select (for example) life sentences with the possibility

of parole based on the defendant's youth and the circumstances of the crime. Miller did

not establish a blanket rule that a cognitively-deficient defendant who commits murder

cannot constitutionally receive a sentence that does not allow for parole. (See id. at pp.

2465-2470 [categorical bar on life without parole for juveniles applies only to

nonhomicide offenses; homicide offenses committed by juveniles require individualized

sentencing decision]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1389-1390

[discretionary life without parole sentence may be imposed on juvenile for homicide

offense upon consideration of relevant factors].) Moreover, unlike juveniles—for whom

mandatory life without parole sentences are precluded due to the prospects for

rehabilitation as their brains develop (Miller, supra, at pp. 2460, 2465-2468)—defendant

has not shown his mental condition could be improved to make him safe if released so as

to constitutionally mandate consideration or imposition of a sentence that might

realistically allow for his release.

       Also, defendant's citation to cases precluding death sentences for mentally

retarded persons and juveniles (see Atkins v. Virginia (2002) 536 U.S. 304, 318-321;

Roper v. Simmons (2005) 543 U.S. 551, 568-575) does not advance his position because

defendant was not sentenced to death. Indeed, sentences of life without parole—rather

than death—have been deemed appropriate for mentally retarded or brain damaged

defendants. (See, e.g., Pen. Code, § 1376, subd. (c)(1) [intellectually disabled defendants

                                             19
who commit capital offense must be sentenced to life without parole, not death]; Crook v.

State (Fla. 2005) 908 So.2d 350, 358-359 [for constitutional proportionality reasons,

death sentence reduced to life without parole for brain-damaged defendant].) These

sentencing dispositions implicitly recognize that in appropriate circumstances it is not

cruel or unusual punishment to send a defendant with mental deficits to prison for the rest

of his or her life.

                                      DISPOSITION

       The judgment is affirmed.




                                                                               HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



MCINTYRE, J.




                                            20
