1 Filed 4/30/14 P. v. Anaya CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. JOEL ANAYA, Defendant and Appellant. C071288 (Super. Ct. No. 10F07667)

Defendant Joey Anaya, who was 18 year s old at the time of his crimes, was convicted of two counts of attempted murder and other crimes connected to his gang activity. Sentenced to long determinate and indeterminate terms in state prison, he appeals. He contends that (1) the pros ecutor committed misconduct in commenting on the defense’s failure to produce a witness and (2) his sentence constitutes cruel and unusual punishment because of his age. We conclude that the pr osecutor did not commit misconduct and that his sentence was not crue l and unusual because he was an adult when he committed his crimes.2 FACTS Defendant, who is a Norteño gang me mber, committed his crimes during two separate incidents: one at Harvey Park in Galt on November 17, 2010, and the other outside Greenhaven Liquor in Sacramento on October 22, 20 11, while he was out on bail on the Harvey Park crimes. Harvey Park A group of Sureños and others not affiliated with any gang were socializing at Harvey Park when defendant and some of hi s fellow Norteño gang members approached. Defendant had a gun in his ha nd, wrapped in a red bandanna . As defendant approached, he took off his shirt. He fi red the gun about five times in the direction of the Sureños. After defendant stopped firing, either because the gun jammed or he was out of bullets, the Sureños chased th e Norteños away. Just before the shooting, Deanna Evans was at Harvey Park with four children. She saw a group of men aggressively approach ing a group that was already in the park. Thinking that there would be trouble, Evans frantically loaded the children into her car, which was in the middle of the two groups. She saw a man with a red bandanna over his hand and heard four gunshots. She saw no other weapon among the tw o groups of men. After hearing the gunshots, Evan s was able to drive away. The main defense with respect to the Ha rvey Park incident was that the Sureños had knives and that defendant fi red the gun in self-defense. Zackery Ricardos, one of the Norteños with defendant at th e time, told a detective that the Sureños “pulled out a knife” and chased the Norteños. Called as a witness at trial, Ricardos clai med not to remember the incident or talking to a detective, but he was impeached with his prior inconsistent

statements.3 Greenhaven Liquor D’Angelo Gutierrez dropped out of the Nort eño gang and changed his life. As he was leaving Greenhaven Liquor, he was attack ed by three men, two of whom could be identified by surveillance camer a footage of the attack as defendant a nd his brother Jonathan. The footage was shown to the ju ry. The assailants punched Gutierrez in the face and, after he fell to the ground, kicked and punched hi m numerous times all over the body until he lost consciousness. The assaila nts took Gutierrez’s shirt and shoes and left the scene in a car registered to Jonathan Anaya’s girlfriend. PROCEDURE A jury convicted defendant of attempted murder of and assault with a firearm on Jesus Calderon and Manuel Barriga (two of the Sureños at Harvey Pa rk). (Pen. Code, §§ 664, 187, subd. (a), 245, subd. (a)(2) (counts one through four).) 1 The jury also convicted defendant of second degree robbery of and assault by means of force likely to cause great bodily inju ry on D’Angelo Gutierrez. (§§ 21 1, 245, subd. (a)(1) (counts five & six).) The jury found that (1) the a ttempted murders were committed willfully, deliberately, and with premeditation (§ 66 4, subd. (a)) and involved personal and intentional discharge of a fire arm (§ 12022.53, subd . (c)), (2) the assau lts with a firearm involved personal use of a firearm (§ 12022 .5, subd. (a)), (3) the robbery and assault by means of force likely to cause great bodily injury were committed while defendant was on bail (§ 12022.1), and all of the crimes were committed for the be nefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to two consecutive indeterminate terms of 15 years to life for the attempted murders (because they were co mmitted for the benefit of a

1 Subsequent undesignated references to sections are to the Penal Code.4 criminal street gang (§ 186.22, subd. (b)(5)), with an additional determinate term of 40 years (20 years for each attempted murder) for the personal and intentional firearm discharge enhancements. The court also sentenced defendant to a consecutive determinate term of 15 years, consisting of three years for second degree burglary and an additional 12 years total for the gang and fi rearm-use enhancements. Terms for the remaining crimes were stayed under section 65 4. In total, the court sentenced defendant to a determinate term of 55 y ears, followed by an indeterminat e term of 30 years to life. DISCUSSION
I Prosecutor’s Comment Defendant contends that the prosecutor committed mi sconduct by commenting on the defense’s failure to call a witness the pros ecutor knew was unavailable. We conclude that the comment was not improper because it wo uld have been logical for the defense to call the witness and it was not established that the witness was unavailable. And, in any event, even if the comment was improper, it was harmless beyond a reasonable doubt. A. Background During pretrial proceedin gs and in connection with a defense motion for a continuance, defense counsel informed the tria l court that a defense witness could not be found. Counsel believed, from reviewing a re cording of a police interview with Luis Salinas, that Salinas, one of defendant’s fello w Norteño gang members, would testify that the Sureños at Harvey Park ap peared unexpectedly and were wielding knives. However, when questioned by the court about the defens e’s lack of due diligen ce in getting Salinas to testify, counsel said that he had not been aware of how valuable Salinas’s testimony would be. Counsel also said that Salinas “m ay now have fled to Mexico, which is what the information I have is.” The court in formed counsel that it could not grant a continuance without a showing that Salinas might be located.5 Salinas did not testify at trial. However, during cross-examination of the prosecution’s gang expert Detective Kyle Slater, defense counsel asked whether the detective had considered statem ents by Salinas when concludi ng that the Sureños did not provoke defendant and his fellow gang memb ers at Harvey Park. Detective Slater responded that he had consider ed Salinas’s statement. De fense counsel asked Detective Slater whether Salinas’s statement that thre e men with knives had approached Salinas’s group was an indication that the initial aggr essors were the thr ee men with knives. Defense counsel also reviewed with the dete ctive Salinas’s statement that Salinas, upon seeing the men with knives, began to flee and saw defendant raise an object in his right hand and heard gunshots. During Detective Slater’s testimony, the trial court instructed the jury that Salinas’s statement was not to be considered for the truth of the matter, but could be used only to help assess Detectiv e Slater’s testimony. In his closing argument, defense coun sel criticized Detective Slater for discounting Salinas’s statement when conclu ding that defendant and his fellow Norteño gang members were the aggressors, not the Su reños. In his argument, counsel reviewed Salinas’s statement at lengt h and completed the comment, saying, “So why did . . . Detective Slater . . . discount this statemen t in forming that opinion?” Defense counsel then reviewed other evidence that supported Salinas ’s statement that th e Sureños were the
aggressors. In rebuttal, the prosecutor reminded the jury that Salinas’s statement was not admissible for the truth of the matter. And the prosecutor added: “ If counsel wanted that to be evidence, he could have called Luis Sa linas to the witness stand.” Defense counsel objected that the defense was “[n]ot required to call witnesses.” Bu t the court overruled the objection.6 The prosecutor continued: “If [defense counsel] wanted that evidence, he could have called that witness. I haven’t any obligati on. Haven’t any duty to . [¶] But just like I had to call a bunch of reluctant witnesses, ma ybe Luis Salinas didn’t want to be here. None of the witnesses wanted to be here. He could have done th at if that’s how he wanted to [] produce that evidence and put th at evidence before yo u, but that wasn’t done. [¶] So that eviden ce was introduced for the very limited purpose of testing Detective Slater’s opinion in relationship to this being a gang related activity.”
B. Analysis Defendant contends th at the prosecutor committe d misconduct, violating defendant’s state and federal rights to due process and to remain silent, by commenting on the defense’s failure to call a w itness who was unavailable. Citing People v. Frohner (1976) 65 Cal.App.3d 94, he claims that “a prosecutor may not comment on the defense’s failure to call a witness the pros ecutor knows is unavailable.” It is error for a prosecutor to comment directly or indirectly upon a defendant's failure to testify in his own defense. ( Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110]; People v. Medina (1995) 11 Cal.4th 694, 755.) The Griffin rule, however, does not preclude comments on the stat e of the evidence, or on the defendant’s failure to introduce mate rial evidence or call logical witnesses. ( People v. Bradford (1997) 15 Cal.4t h 1229, 1339; People v. Medina, supra , at p. 755.)
In People v. Frohner, supra, 65 Cal.App.3d 94, on wh ich defendant relies, the court found that the prosecutor committed mi sconduct when he allowe d the jury to infer that the defendant purposely failed to call a witness when in fact the prosecutor had a duty to make reasonable efforts to produce the witness and failed to fulfill that duty. ( Id

. at p. 109.) Under these circumstances, the court found it “inexcusable” that the prosecutor argued to the jury that the defense failed to produce the w itness. Coupled with7 the prosecution’s own failure to produce the witness, the co mment substantially prejudiced the defendant. ( Ibid .) Here, on the other hand, there is no sugges tion that the prosecution failed in a duty to procure Salinas as a witn ess. While there was some indication that efforts by a previous defense attorney had failed to pro duce Salinas and trial counsel had information that Salinas “may” have fled to Mexico, it wa s far from established that the defense could not have produced Salinas as a witness through reasonably d iligent efforts. (See Evid. Code, § 240, subd. (a)(5) [requiring reasonab le diligence before witness treated as unavailable].) Therefore, the prosecutor’s comment was permissible because it would have been logical for the defense to pres ent testimony from a witness who apparently would have testified (or been impeached with prior incons istent statements) that the Sureños at Harvey Park approached defend ant and his fellow gang members with knives. In any event, even if the comment by the prosecutor was improper, it was harmless beyond a reasonable doubt. The jury was pr operly instructed th at it could consider Salinas’s hearsay statements only for the purp ose of evaluating Detective Slater’s expert testimony, and the focus of the prosecutor’s comment was that the jury must follow the court’s instruction, even though defense co unsel discussed Salinas’s statement at length in cross-examining Detective Slater and in cl osing argument. The ju ry could not rely on Salinas’s statement to conclude that the Sureños were the aggressors. In light of the evidence that defendant was the initial aggres sor, bearing a handgun, it is not reasonable to conclude that the prosec utor’s additional comment that the defense did not produce Salinas as a witness affected the verdicts in any way. Given this conclusion, we need not cons ider the Attorney Ge neral’s argument that defendant did not preserve the constituti onal objection for app eal or defendant’s argument that, if defense counsel failed to pr eserve the objection, defendant’s right to counsel was violated.8 II Cruel and Unusual Punishment Defendant contends that his sentence constitutes crue l and unusual punishment under the Eighth Ame ndment of the federal Constitutio n because he was only 18 years old when he committed the offenses and the minimum term before he is eligible for parole exceeds his natural life expectancy. The contention is without merit because defendant was an adult when he committed the offenses. 2
“A sentence violates the federal Constitu tion if it is ‘grossly disproportionate’ to the severity of the crime. [Citations.]” ( People v. Russell (2010) 187 Cal.App.4th 981, 993.) In support of his contention that his sent ence is cruel and unus ual, defendant relies on cases in which the defendant was a juve nile when he committe d the crimes. He concludes that “[t]he functio nal equivalent of a mandatory life sentence for an 18-yearold does not permit considera tion of factors relevant to youth and is therefore unconstitutional under the Eighth Amendment . . . .” The c ontention fails because those cases do not support an argument that a sent ence imposed for crimes committed when the defendant was an adult is cruel and unusual. ( People v. Argeta (2012) 210 Cal.App.4th 1478 ( Argeta ).)
In People v. Caballero (2012) 55 Cal.4th 262, our Supreme Court held that sentencing a juvenile who commits a nonhomicid e offense to a de facto sentence of life

2 Defendant also contends that trial counsel was c onstitutionally deficient if counsel’s objection that the sentence was “unw arranted” did not pres erve for appeal the issue of whether the sentence is cruel and unus ual. We reject the contention because the sentence was not cruel and unusual and, therefor e, counsel’s failure to raise the issue did not cause prejudice to defendant. (See People v. Lawley (2002) 27 Cal.4th 102, 133, fn. 9 [prejudice necessary to ineffective assistance of counsel claim].)9 without parole is categorically cruel and unusual punishment. ( Id . at p. 268; see also Miller v. Alabama (2012) __ U.S. __ [183 L.Ed.2d 407]; Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825].) Caballero is distinguishable because defendant here was not a juvenile when he committed his crimes. This distinguishing factor was addressed in Argeta , which stated: “Relying on Graham, . . . Miller, and Caballero , Argeta contends his sentence is categorically cruel and/or u nusual. Argeta was 18 and was convicted of first degree murder as a principal. His c ounsel argues that since the crime was committed only five months after Argeta’s 18th birthday the rationale a pplicable to the sentencing of juveniles should apply to him. We do not agree. These arguments regarding sentencing have been made in the past, a nd while ‘[d]rawing the line at 18 years of age is subject . . . to the objections always raised against cate gorical rules . . . [, it] is the point where society draws the line for many purposes between childhood and adulthood.’ ( Roper v. Simmons (2005) 543 U.S. 551, 574 [161 L.Ed.2d 1]; see Graham, supra , 560 U.S. at p. ___ [130 S.Ct. at p. 2016].) Making an ex ception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude Argeta’s sentence is not cruel and/or unusual under Graham, Miller, or Caballero .” ( Argeta, supra, 210 Cal.App.4th at p. 1482.) In addition to the fact th at defendant was an adult wh en he committed his crimes, the crimes justified severe punishment. He engaged in dangerous, assaultive gang conduct. He endangered not just other ga ng members but also innocent bystanders, including children, when he attempted to murder the two Sureño gang members at Harvey Park. And after he got out on bail for the Harvey Pa rk shootings, he went right back to his violent ways, par ticipating in a brutal beati ng. The combination of two premeditated attempted murders on behalf of a gang, using a firearm, along with robbery10 and assault causing great bodily injury, ag ain to promote his gang, justified the substantial sentence permitted by statute. Th e sentence was not disproportionate, much less grossly disproportionate, to the severity of his crimes. DISPOSITION The judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.