1

Filed 3/13/17 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DEYANIRA CUIRIZ,

Defendant and Appellant.

 A144351

 (Contra Costa County

 Super. Ct. No. 51306067)

ORDER MODIFYING OPINION 

AND DENYING REHEARING; 

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on February 14, 2017, be modified as follows:

1. On page 4, line 4 of footnote 4, delete the word “mitigated” so that the sentence reads:

On the attempted voluntary manslaughter count she was sentenced to 12 years 

(three-year base term plus four years for the firearm enhancement and five years 

for inflicting great bodily injury). 

2. On page 10, line 21, delete the words “all counts” and insert the words “two of the 

counts and the midterm on the voluntary manslaughter count” so that the sentence reads:

The court imposed mitigated base terms on two of the counts and the midterm on 

the voluntary manslaughter count.

3. On page 12, line 15, the word “involuntary” is changed to “voluntary.” 

4. On page 16, after footnote 12 on line 18, add the following sentence: 

“Upon striking the 25-year-to-life enhancement from both counts under which it 

was imposed, which we do, this sentence provides for the longest potential term of 

imprisonment in compliance with section 654.”
2

5. On page 16, in the first line of the Disposition, after the word “imposed,” insert the 

words “to strike the 25-year-to-life enhancement from the sentences imposed under 

counts two and three and stay the sentences imposed under counts two and three” so that 

sentence reads:

“The judgment is modified to vacate the sentence imposed, to strike the 25-yearto-life enhancement from the sentences imposed under counts two and three and

stay the sentences imposed under counts two and three, and to vacate the stay with 

respect to the sentence imposed by the trial court under count one for attempted 

voluntary manslaughter, imprisonment for a term of 12 years.” 

There is no change in the judgment.

The petition for rehearing is denied. 

Dated: _______________________ Acting P. J.
3

Trial court: Contra Costa County Superior Court

Trial judge: Honorable Trevor White

Counsel for plaintiff and respondent: Kamala D. Harris and Xavier Becerra, 

Attorneys General, Gerald A. Engler, Chief 

Assistant Attorney General, Jeffrey M. 

Laurence, Senior Assistant Attorney General, 

Donna M. Provenzano, Supervising Deputy 

Attorney General, and Arthur P. Beever Deputy 

Attorney General

Counsel defendant and appellant: Robert H. Derham and Tiffany J. Gates

A144351
1

Filed 2/14/17 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DEYANIRA CUIRIZ,

Defendant and Appellant.

A144351

(Contra Costa County

Super. Ct. No. 51306067)

Defendant Deyanira Cuiriz appeals a judgment sentencing her to imprisonment for 

27 years to life following her conviction for attempted voluntary manslaughter, shooting 

at an occupied vehicle and mayhem. She contends that she did not voluntarily and 

knowingly waive her right to remain silent when she spoke to the police after having 

been advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and 

that the trial court erred in admitting her statements made during the police interrogation 

and in refusing to excise from the evidence presented to the jury a statement by the 

interrogating detective. She also contends the sentence imposed constitutes 

constitutionally prohibited cruel and unusual punishment. We shall affirm the conviction 

but conclude this is the rare case in which there is merit to defendant‟s constitutional 

challenge to the sentence imposed.

Background

The record contains extensive testimony from numerous witnesses describing the 

incident that culminated in the shooting that rendered the victim a quadriplegic. However, 

a detailed recitation of the evidence is unnecessary in view of the issues raised on appeal. 

In brief, the shooting occurred after midnight on August 19, 2012, during the 

course of defendant‟s 19th birthday party, outside the Richmond home where she lived 
2

with her parents. Although there was conflicting evidence as to what precipitated the 

incident, it is undisputed that a confrontation occurred between defendant‟s father (who 

like others had been drinking at the party) and the victim Oscar Barcenas and his friend 

Miguel Magdaleno. The father and others were outside in front of the house when 

Barcenas and Magdaleno drove by in a truck and (for disputed reasons) exited the truck 

and engaged in a physical confrontation with defendant‟s father. Defendant emerged 

from the house, observed the two men hitting and pushing her father and, according to 

defendant, pushed her when she attempted to separate the men. Defendant testified that 

she saw her father on the floor with “his face full of blood,” she was scared, she said, and 

yelled at the two men to leave and they threatened to return, telling her they were gang 

members. Defendant was handed a gun by her boyfriend1and approached the truck to 

which Barcenas and Magdaleno had retreated preparing to leave, and fired one shot into 

the cab of the truck, piercing Barcenas‟s spinal cord. 

About a half hour after police responded to the scene, defendant approached an 

officer and, as the officer testified without objection, acknowledged that she had shot the 

victim. As the officer was handcuffing her, she explained that “she was defending her 

father and that‟s why she shot the subject in the vehicle.” At trial she testified that as she 

was standing next to the driver‟s side of the truck, Barcenas “was coming outside of the 

truck towards me.” She continued, “He looked like he just turned around from looking in 

his center console. When I turned around, he was already coming out. I was scared.” She 

said she shot “[b]ecause I seen him come out the car and I thought he had something, he 

was gonna do something to me. I was already scared because he was saying that he‟s in a 

gang, and that‟s really scary to me.”

Over defendant‟s objection, the recording of her interrogation by two detectives at 

the police station that began at 6:50 that morning was played for the jury. At one point 

during the questioning, defendant stated that when Barcenas and Magdaleno returned to 

 

1 Defendant originally told the police that she went inside the house for the gun but at 

trial testified that she had lied in order to protect her boyfriend.
3

the truck “and they‟re like, „Oh I‟m so sorry, I‟m so sorry,‟ I was like, „What the fuck do 

you mean you‟re sorry?‟. . . [¶] . . . [¶] . . . I was like „What the hell?‟ I was like, „How 

are you gonna say you‟re sorry after you come and beat someone‟s dad not knowing what 

the fuck is going on?‟ I was like, „Fuck that.‟ And then they were just like, man. They 

were just saying some of this ignorant stuff. They got on my nerves. And then I just shot 

the dude. I was like what the hell? Like „cause he was gonna — he was, like, he was 

gonna come back outside so I was scared. I was like, „What the hell?‟ I just shot him 

cause he was gonna come back and argue with me.” Later in the interrogation: “like 

we‟re at the point where I was — where I grabbed — where my hand started shaking. 

„Cause like I got mad. Like I got mad and I knew like, I never did nothing to anyone 

before. But like they were being really ignorant. Like . . . [¶] . . . I don‟t know why 

people. And I usually talk about . . . people being ignorant. But my anger got to me. 

[¶] . . . [¶] Like in desperation and I didn‟t want them to come back outside and keep 

doing stuff.” When asked why she shot the victim, defendant answered: “Because I was 

mad. Like I was telling you I was [upset] (unintelligible) he was saying sorry. And the 

more he said sorry the more he got me mad. „Cause like it doesn‟t make sense for you to 

come hit somebody and say you‟re sorry and I don‟t know what you‟re doing. I knew he 

was like threatening me, and everything. So I was like, „What the hell are you talking 

about.‟ That‟s when he was gonna come outside, so I‟m guessing he was gonna do 

something to me. So I just shot him. Like I didn‟t want anything to happen to me.”

Towards the end of the interrogation, defendant volunteered, “It was easily self 

defense. That‟s what I chose to do.” This prompted additional questions and then the 

following exchange:

“Q. So you decided to take it into your own hands? 

“A. I blacked out, like honestly my temper is . . .

“Q. Hey wait, and real quick, just so you understand . . .

“A. Yeah . . .

“Q. This blacking out thing is a bunch of garbage. You tell me you black out, but 

you‟ve already told me everything in detail.
4

“A. No, no, I know in detail. (Crosstalk) In between, my mind at the point, I 

wasn‟t thinking you know?

“Q. Cause you were so pissed off.

“A. Ya.

“Q. Ok, that‟s not self defense. Who told you getting pissed off, grabbing a gun, 

and shooting someone is self defense? Who told you that?”

In an amended information, defendant was charged with attempted murder (Pen. 

Code, §§ 187, 664),2shooting at an occupied vehicle (§ 246), aggravated mayhem 

(§ 205), and mayhem (§ 203). On each charge the amended information alleged that 

defendant had personally and intentionally discharged a firearm causing great bodily 

injury (§ 12022.53, subd. (d)). As to the attempted murder and shooting at an occupied 

vehicle charges, the amended information alleged that defendant had personally inflicted 

great bodily injury (§ 12022.7, subd. (b)). The jury found defendant not guilty of 

attempted murder but guilty of the lesser offense of attempted voluntary manslaughter, of 

shooting at an occupied vehicle and of mayhem.3The court sentenced defendant to prison 

for a term of 27 years to life: the mitigated term of two years on the mayhem conviction 

plus 25 years to life for the firearm enhancement. Sentence on the other charges was 

imposed and stayed under section 654.4 Defendant has timely appealed.

 

2 All statutory references are to the Penal Code unless otherwise indicated.

3

The aggravated mayhem charge was dismissed on the prosecutor‟s motion after the jury 

reported that it could not agree on that charge.

4 Defendant was sentenced to 28 years to life on the conviction for shooting at an 

occupied vehicle (mitigated three-year base term plus 25 years to life for the firearm 

enhancement). On the attempted voluntary manslaughter count she was sentenced to 

12 years (mitigated three-year base term plus four years for the firearm enhancement and 

five years for inflicting great bodily injury). These sentences were stayed pursuant to 

section 654.
5

Discussion

1. The recording of defendant’s interrogation was properly admitted.

Defendant first challenges the admissibility of her recorded statements on which 

the prosecution relied in disputing her claim of self defense. The interrogation in which 

these statements were made took place in the police station some six to seven hours after 

the shooting. Defendant had been taken to the station from the scene and apparently had 

been dozing in the interrogation room before the detectives arrived. At the outset one of 

the detectives advised defendant of each of her rights specified in the standard Miranda 

warning, asking her whether she understood that right and as to each right defendant 

responded that she did. Without explicitly asking defendant whether she waived those 

rights the detectives proceeded with the questioning and defendant unhesitantly 

answered. Defendant‟s in limine motion to exclude her statements made during the 

interrogation on multiple grounds, including that the implicit waiver of her Miranda 

rights was not made voluntarily and knowingly, was denied5and a recording of the 

interrogation was subsequently played to the jury.

On appeal, defendant renews her contention that the recording should not have 

been admitted because she did not voluntarily and knowingly waive her Miranda rights. 

The recording was not admissible unless defendant‟s waiver was voluntary and knowing. 

(People v. Duff (2014) 58 Cal.4th 527, 551.) “In reviewing the trial court's denial of a 

suppression motion on Miranda and involuntariness grounds, „ “ „we accept the trial 

court's resolution of disputed facts and inferences, and its evaluations of credibility, if 

supported by substantial evidence. We independently determine from the undisputed 

facts and the facts properly found by the trial court whether the challenged statement was 

illegally obtained.‟ ” ‟ [Citations.] Where, as was the case here, an interview is recorded, 

 

5

The court did not rule on the motion before the start of trial because the prosecutor 

indicated he did not intend to introduce the recording. The prosecutor subsequently 

indicated he did wish to introduce the recording, at which point the court conducted a 

hearing under Evidence Code section 402 and denied the motion.
6

the facts surrounding the admission or confession are undisputed and we may apply 

independent review.” (Ibid.)

In arguing that defendant‟s waiver was not voluntary and knowing, defendant 

points to the facts that she “was barely 19 years old at the time of the interrogation,” she 

had “no prior experience with law enforcement or the criminal justice system,” she “was 

emotionally distraught throughout the entire interview and may have been suffering from 

shock,” and it is “at best uncertain whether [she] slept or had anything to eat or drink in 

the five and a half hours between the time that she was arrested (at approximately 1:30 

a.m.) and the time that the interrogation began (at approximately 7:00 a.m.).” However, 

despite the characteristics of youth that courts have recognized in the numerous cased 

cited by defendant, defendant had graduated from high school and was an adult and 

employed at the time of the shooting. Waivers from much younger persons have been 

upheld. (E.g., People v. Nelson (2012) 53 Cal.4th 367, 375; People v. Lewis (2001) 26 

Cal.4th 334, 384; In re Joseph H. (2015) 237 Cal.App.4th 517, 533.) At the section 402 

hearing, one of the interrogating detectives testified that at the time defendant appeared to 

be coherent, not “in pain or anything like it,” was not defiant, did not appear hungry and 

when asked responded she would like some water that was provided her, and appeared to 

understand all the questions that were put to her. After watching the video recording of

the interrogation, the trial court concluded defendant‟s statement “was knowingly, 

intelligently, and voluntarily made” and that not “anything that I have in front of me even 

approaches [the] level” of a constitutional violation. This court has also watched the 

video recording and in the exercise of our independent judgment reaches the same 

conclusion. Defendant gave no indication that she did not understand the Miranda rights 

that were read to her, and that she said she understood. Although soft-spoken, she appears 

to have been fully awake and alert. At no point did defendant indicate any reluctance to 

answer the detectives‟ questions. The record contains no evidence that she did not waive 

her rights knowingly and voluntarily. There was no error in admitting the recording of 

her interrogation.
7

2. The court did not err in failing to excise the detective’s statements from the recording.

Defendant contends that even if the recording of the interrogation was properly 

admitted, the court erred in failing to excise the detective‟s statements near the 

conclusion of the interview that the shooting was “not self defense. Who told you getting 

pissed off, grabbing a gun, and shooting someone is self defense? Who told you that?” 

The issue was raised by the court at the end of the section 402 hearing, leading to an 

extended discussion with counsel concerning how the defense might properly respond. 

During the exchange defendant‟s attorney indicated that she preferred the remarks to be 

stricken. However, the court suggested instructing the jury that the statement was not to 

be considered as evidence and counsel stipulated to the following instruction: 

“Statements made by police officers while conducting out-of-court interviews are not 

evidence. These statements can be viewed as interview techniques and do not express the 

personal views or opinions of those police officers.” The stipulation was read to the jury 

before the recording of the interview was played, and was repeated in the final jury 

instructions, at which point the court added: “So if it‟s a situation with the officers, 

something the officers have testified to, do keep in mind what sounds like an opinion 

expressed during that interview is not to be considered by you, because of the stipulation, 

as an opinion. So I wanted to clarify that point for all of you.” Whether or not the 

objection was forfeited by entry of the stipulation, as the Attorney General contends, any 

possible prejudice from inclusion of the detective‟s remarks was cured by the court‟s 

instruction. (People v. Ervine (2009) 47 Cal.4th 745, 776 [“we presume the jury faithfully 

followed the court‟s limiting instruction”].) When the detective who made the statement 

during the interrogation testified at trial, he expressed no such opinion. And although the 

prosecutor referred to the statement in closing argument, he did so to suggest that the 

statement had prompted defendant to change her story, and made no argument that the 

detective had expressed an opinion that should be considered. There is no reason to 

believe that the jury did not follow the court‟s instruction in this case.
8

3. Defendant’s sentence constitutes cruel and unusual punishment.

Defendant contends that her sentence of 27 years to life constitutes cruel and 

unusual punishment in violation of the state and federal constitutions. “Whether a 

punishment is cruel or unusual is a question of law for the appellate court, but the 

underlying disputed facts must be viewed in the light most favorable to the judgment.” 

(People v. Martinez (1999) 76 Cal.App.4th 489. 496.)

Defendant acknowledges, and we reiterate, that she must overcome a 

“considerable burden” to show that the sentence is disproportionate to her level of 

culpability (People v. Wingo (1975) 14 Cal.3d 169, 174). Defendant relies heavily on the 

Supreme Court decisions in People v. Dillon (1983) 34 Cal.3d 441(Dillon) and In re 

Lynch (1972) 8 Cal.3d 410 (Lynch). These decisions have never been disapproved and 

still state the applicable principles of law, although cases finding a sentence to be cruel or 

unusual are, as defendant recognizes, “rare.” (People v. Weddle (1991) 1 Cal.App.4th 

1190, 1196.) Nonetheless, there are numerous features of this case that are quite unusual. 

The presentencing report from the probation department observed, “Despite the 

defendant‟s ineligibility for grant of probation, it is noted that the circumstances of this 

case are disturbing. The instant offense occurred because the victim and his friend 

interrupted a family party, without invite or welcome. The two men then assaulted the 

defendant‟s father, without cause or fear of reprisal from the defendant‟s family, all the 

while, yelling at family members in a threatening manner. [¶] When it became evident the 

two men may be outnumbered, they returned to their vehicle, at which time the defendant 

shot the driver of the vehicle, the victim. The victim and his friend provoked the 

defendant, or at the very least, began the altercation by arriving at the defendant‟s home 

unwelcome.” In an addendum to the report, the probation officer agreed that a prison 

sentence was appropriate, but “also agree[d] with the jurors6and defense attorney that the 

additional consecutive sentencing is extreme for the circumstances of this particular 

 

6 As indicated below, a majority of the jurors made known to the court that they were 

shocked to learn of defendant‟s potential sentence, which they considered extremely 

unjust in this case.
9

case.” Although the court imposed the mitigated term of two years on the underlying 

offense,7it held that under section 12022.53, subdivision (d) it was required to add the 

mandatory enhancement of 25 years to life for having used a firearm in the commission 

of the offense. 

The governing principles established in Dillon and Lynch have been restated 

numerous times. They are summarized in People v. Em (2009) 171 Cal.App.4th 964, 972 

as follows: “Article I, section 17 of the California Constitution prohibits infliction of 

„[c]ruel or unusual punishment.‟ A sentence may violate this prohibition if „ “it is so 

disproportionate to the crime for which it is inflicted that it shocks the conscience and 

offends fundamental notions of human dignity.” ‟ (People v. Dillon[, supra,] 34 Cal.3d 

[at p.] 47.) [¶] Under the California Constitution, we use a three-pronged test to 

determine whether a particular sentence is disproportionate to the offense for which it is 

imposed. First, we examine „the nature of the offense and/or the offender, with particular 

regard to the degree of danger both present to society.‟ (In re Lynch[, supra,] 8 Cal.3d [at 

p.] 425.) Second, we compare the punishment imposed with punishments prescribed by 

California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the 

punishment imposed with punishments prescribed by other jurisdictions for the same 

offense.”8 As stated by the Supreme Court in People v. Hines (1997) 15 Cal.4th 997, 

1078: “To determine whether a sentence is cruel or unusual as applied to a particular 

defendant, a reviewing court must examine the circumstances of the offense, including its 

motive, the extent of the defendant's involvement in the crime, the manner in which the 

crime was committed, and the consequences of the defendant's acts. The court must also 

 

7

The court explicitly found applicable the mitigating factors that the circumstances of the 

offense were unusual and unlikely to recur, that defendant participated in the crime 

“under circumstances not of coercion but to a certain extent duress,” that defendant “has 

no prior record of criminal conduct,” and that she “acknowledged the wrongdoing at an 

early stage in this proceeding.” 

8

People v. Em also recognizes that a sentence is cruel and unusual under the Eighth 

Amendment to the United States Constitution if it is “grossly disproportionate.” (171 

Cal.App.4th at p. 977.)
10

consider the personal characteristics of the defendant, including age, prior criminality, 

and mental capabilities. (People v. Dillon, supra, 34 Cal.3d at p. 479.) If the court 

concludes that the penalty imposed is „grossly disproportionate to the defendant's 

individual culpability‟ (ibid.), or, stated another way, that the punishment „ “ „shocks the 

conscience and offends fundamental notions of human dignity‟ ” ‟ [citation], the court 

must invalidate the sentence as unconstitutional.”

Both in the abstract and in its particulars, defendant‟s offense unquestionably is 

serious and dangerous. Mayhem, particularly when committed with a fire arm, 

necessarily involves a high risk of harm, and the injury to the victim in this case could not 

be more extreme. Moreover, the Attorney General emphasizes that defendant committed 

the offense while angry, and when the victim and his friend had returned to their vehicle 

and had apologized. Nonetheless, as the jury‟s verdict reflects, this was not an offense 

that defendant had calculated. She was provoked, having observed the attack on her 

father and heard what she understood as a threat by intruding gang members to return. 

She was handed the gun by her boyfriend only moments before using it to shoot the 

victim. Defendant undoubtedly over-reacted to the situation, for which she must be 

punished, but the offense resulted from a moment of impaired judgment in response to 

the victim‟s provocation. There was absolutely no planning involved. The jury found 

defendant not guilty of attempted murder and that she shot the victim in the heat of 

passion. The court imposed mitigated base terms on all counts. Despite the severity of the 

victim‟s injuries, as the Supreme Court recognized in Lynch, “ „there are rational 

gradations of culpability that can be made on the basis of injury to the victim.‟ ” (In re 

Lynch, supra, 8 Cal.3d at p. 426.) Under the circumstances, defendant‟s culpability is at 

the bottom end of the spectrum, despite the serious nature of the victim‟s injuries.

With respect to the nature of the offender, the sentence imposed under the 

mandatory term for the firearm enhancement is far longer than necessary to effectively 

punish this particular defendant. “ „Although the determination that a severe punishment 

is excessive may be grounded in a judgment that it is disproportionate to the crime, the 

more significant basis is that the punishment serves no penal purpose more effectively 
11

than a less severe punishment.‟” (In re Lynch, supra, 8 Cal.3d at p. 422, quoting Furman 

v. Georgia (1972) 408 U.S. 238, 280.) “This branch of the inquiry therefore focuses on 

the particular person before the court, and asks whether the punishment is grossly 

disproportionate to the defendant‟s individual culpability as shown by such factors as his 

age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon, 

supra, 34 Cal.3d at p. 479.) Defendant had just turned 19 at the time of the offense. She 

had no prior criminal record, was living with her family and was employed and helping to 

support the family. According to the probation report, “the defendant has been a help to 

her parents, has graduated high school, has no prior criminal history and had been 

working.” Should she be released at any time, the report states, “her goal is to return to 

college and study cosmetology.” According to one of her former teachers she “is a girl 

with a very high potential in life.” According to another, she “ „was a very hard worker, 

very family oriented and talked about her parents and family a lot.‟ The defendant never 

got into any fights or had discipline problems at school.” Defendant‟s good character and 

general obedience to the law was attested to by numerous reference letters and statements 

to the court at the sentencing hearing. The record contains no contrary evidence. 

Defendant‟s interview with the probation officer was brief “due to the lack of criminal 

behavior by the defendant.” As the jury found in acquitting her of attempted murder, her 

state of mind when she committed the offense was not pursuit of an illicit objective, but 

agitation caused by her victim‟s provocation. Defendant certainly is not the type of 

“criminal[] misusing guns to terrorize, injure and kill their victims” for whom the 

mandatory firearm enhancement was intended. (Analysis of Assem. Bill No. 4 (1997-

1998 Reg. Sess.) as amended April 28, 1997.)

There are at least two aspects of the sentence itself that are significant in 

evaluating whether the punishment is cruel or unusual. As was true of the sentence 

considered in Dillon, despite the “broad factual spectrum” of circumstances in which 

section 12022.53, subdivision (d) may apply, “the Legislature has provided only one 

punishment scheme” for the use of a firearm causing death or great bodily injury in the 

commission of any of the offenses specified in the statute. (People v. Dillon, supra, 34 
12

Cal.3d at p. 477.) And in some of these cases, “this Procrustean penalty may violate the 

prohibition of the California Constitution against cruel or unusual punishments.” (Ibid.) 

As noted above, the crime here was hardly typical of the gun violence to which the 

enhancement statute was primarily directed. Secondly, there is some merit to defendant‟s 

contention that she “has been punished more severely for a lesser-related crime 

(mayhem) than she could have been punished for the greater crime of attempted 

voluntary manslaughter.” The 25-year-to-life enhancement required by section 12022.53, 

subdivision (d) does not apply to manslaughter or attempted manslaughter. (§ 12022.53, 

subd. (a).) The enhancement was imposed only because the prosecution chose to charge 

defendant not only with attempted murder, leading to her conviction of the lesser offense 

of attempted manslaughter, but also with mayhem, normally an inevitable consequence of 

such a shooting. The situation here may be distinguishable from the facts in People v. 

Schueren (1973) 10 Cal.3d 553,9on which defendant relies, but it is nonetheless true that 

involuntary manslaughter is punishable by a sentence of three, six or eleven years (§ 193, 

subd. (a)), while mayhem is punishable by a sentence of only two, four, or eight years 

(§ 204), yet the mandatory enhancement applies only to the offense with the lower base 

term. In that sense, application of the mandatory enhancement to defendant‟s sentence 

may fairly be characterized as “unusual” in the constitutional meaning of the term. 

(Schueren, pp. 560-561.)

Moreover, it is also significant that the 27 years to life sentence resulting from the 

enhancement is longer than the sentence prescribed under California law for first degree 

 

9

In Schueren, the Supreme Court held that where a defendant had been convicted of a 

lesser included offense under the accusatory pleading test for which the statutory 

punishment was greater than for the offense charged, the constitutional proscription 

against cruel or unusual punishment prohibited imposition of the longer sentence. Under 

the circumstances, the court held, a prison term exceeding the sentence for the offense 

charged was “an „unusual‟ punishment.” (People v. Schueren, supra, 10 Cal.3d at p. 560.) 

“A statute valid on its face may be unconstitutionally applied [citations] and under the 

circumstances of this case a prison term exceeding [the shorter term of the offense 

charged] is an unconstitutional application of the penalty provision of that section.” (Id.

at p. 561.) 
13

murder (§ 190, subd. (a)), rape of a minor (§ 264, subd. (c)), and many other arguably 

more serious offenses involving intentional acts causing extreme harm. “[I]f among [the 

criminal penalties prescribed in the jurisdiction] are found more serious crimes punished 

less severely than the offense in question, the challenged penalty is to that extent 

suspect.” (In re Lynch, supra, 8 Cal.3d at p. 426.)

While comparison of the penalty imposed by California for the use of a gun 

causing harm to the penalty imposed by other states for like conduct is perhaps of limited 

significance (see People v. Martinez, supra, 76 Cal.App.4th at p. 498), defendant asserts, 

and the Attorney General does not dispute, that as of July 2016, no other state imposes a 

similar mandatory enhancement in such a case. At a minimum, “if the challenged penalty 

is found to exceed the punishments for the offense in a significant number of [other] 

jurisdictions, the disparity is a further measure of its excessiveness.” (In re Lynch, supra, 

8 Cal.3d at p. 427.)

Detailed comparison of the facts in this case with those in which the courts have 

rejected claims of cruel and unusual punishment is of limited value. What is significant is 

that in most of those cases the court considered the defendant to have engaged in 

reprehensible conduct reflecting a disposition to commit other antisocial acts. For 

example, in People v. Em, the court considered that the “Defendant has proven himself to 

be completely resistant to the rules and structures of civilized society and the criminal 

justice system, and to be indifferent to basic social mores. The danger he presents to 

society is significant. Defendant committed this crime, not because he was in the wrong 

place at the wrong time, but because he has a complete disregard for the rule of law and 

lack of respect for human life.” (People v. Em, supra, 171 Cal.App.4th at p. 976.) In 

People v. Gonzales (2001) 87 Cal.App.4th 1, 16, “defendants were gang members.” 

Although the “youth and incidental criminal history [of one of the defendants were] 

factors in his favor,” the “seriousness of the crime and the circumstances surrounding its 

commission” indicated that he nonetheless “pose[d] a great danger to society.” (Id. at 

p. 17.) In People v. Martinez, supra, 76 Cal.App.4th 489, the defendant was convicted of 

attempted murder. After being asked by the victim to leave his store, the defendant told 
14

the victim he was going to return and kill him; he left and obtained a .22-caliber rifle 

from an acquaintance he told he was going to shoot a person who had disrespected him in 

front of his girlfriend; he returned to the store, repeating that he was going to kill the 

victim; after firing one shot that missed the victim, he then shot the victim in the stomach. 

(Id. at p. 492.) The appellate court observed that the “provocation” there “was 

insignificant in comparison to [defendant‟s] response, which was vicious and not rash or 

unsophisticated, and that [the defendant] would have continued shooting if his girlfriend 

had not been in the way.” (Id. at p. 496.) Based on the circumstances of the offense and 

the defendant‟s lack of remorse, the probation report found the 23-year-old defendant to 

have “ „a callous disregard for the safety and well-being of others‟ ” whose behavior 

“ „must be viewed as extremely violent and dangerous . . . . For the safety of the victim 

and community members, the defendant should be removed from the community for an 

extended period of time.‟ ” (Ibid.) In People v. Zepeda (2001) 87 Cal.App.4th 1183, 

1215, the defendant had “committed an unprovoked murder for the apparent purpose of 

establishing himself within a street gang, and to establish the gang‟s strength in the 

community.” The defendant had previously been committed to the California Youth 

Authority for committing an assault with a deadly weapon, and at the time of the offense 

in question he was on parole for a previous drive-by shooting. “His recidivism and the 

violence of his past and current offenses warrant[ed] a lengthy sentence.” (Id. at 

p. 1216.)10 Thus, with respect to the nature of the offender, a principal consideration in 

evaluating whether a sentence is constitutionally excessive, there is a highly significant 

difference between the defendant in this case and the defendants in cases in which the 25 

year-to-life enhancement has been upheld. 

 

10 Zepeda and the other California cases are in accord with decisions of the United States 

Supreme Court rejecting Eighth Amendment challenges to lengthy sentences applied to 

recidivist offenders. (E.g., Ewing v. California (2003) 538 U.S. 11, 29-30 [“Ewing‟s 

sentence is justified by the State‟s public-safety interest in incapacitating and deterring 

recidivist felons, and amply supported by his own long, serious criminal record.”]; 

cf. Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive 25 year-to-life sentences 

imposed under “three strikes” law not an unreasonable application of clearly established 

federal law].)
15

We recognize, as we must, that “the Legislature determined in enacting section 

12022.53 that the use of firearms in commission of the designated felonies is such a 

danger that „substantially longer prison sentences must be imposed . . . in order to protect 

our citizens and to deter violent crime.‟ ” (People v. Martinez, supra, 78 Cal.App.4th at 

p. 497.) We do not question the validity of the enhancement it prescribes in most

situations. Nonetheless, in determining the constitutional permissibility of the sentence in 

a particular case, “the ultimate test remains whether the punishment prescribed shocks the 

conscience and offends fundamental notions of human dignity.” (Smith v. Municipal 

Court (1978) 78 Cal.App.3d 592, 596.) The sentence here did indeed shock the 

conscience of most of the jurors who heard all of the evidence,11 and the probation officer 

and the trial court also appear to have considered the mandatory 25-year-to-life 

enhancement most disturbing. Considering the circumstances leading to the commission 

of this offense and the nature of this particular offender, buttressed by the comparison to 

other sentences prescribed in California for equally serious offenses and the treatment of 

gun use in all other American jurisdictions, we are compelled to conclude that this is one 

of those rare instances in which the prescribed penalty does exceed constitutional limits.

Having determined that defendant‟s 27-year-to-life sentence constitutes cruel and 

unusual punishment, we are left with no clear method or standard to determine a 

permissible sentence under the circumstances. Defendant‟s crime is a serious offense and 

 

11 A majority of the jurors came forward at sentencing to state they were “stunned to 

learn of the sentencing guidelines for the enhancements they found true,” felt 

“ „compelled to offer our strong personal views that the mandated jail time for the gun 

and bodily injury enhancements is just plain wrong for this particular case,‟ ” and that 

“ „adding a 25-to-life enhancement to the jail time for [the] underlying crimes would not 

be justice‟ for the defendant „and it would not do a thing to help the victim.‟ ” Seven 

jurors signed a letter to the district attorney stating that they “could not have been more 

shocked to learn that our verdict ties the judge‟s hands at sentencing, and that the charges 

we convicted Ms. Cuiriz of carry a mandatory minimum sentence of 25 years to life. We 

feel betrayed.” Another juror stated he found “the mandatory minimum sentencing 

associated with those charges in this specific case to be obscene, truly offensive to what I 

consider to be standards of decency and morality. I feel this way after having heard all of 

the evidence in the case, after discussing that evidence with the other jurors, and after 

delivering the guilty verdicts on the various charges.”
16

undoubtedly justifies stern punishment. Simply striking the 25-year enhancement would 

result in a sentence of only two years, which would not adequately reflect the gravity of 

defendant‟s offense or the serious nature of the injury that she inflicted. Given our 

rejection of the sentence that the trial court imposed under the mayhem count of the 

information, we believe that activation of the 12-year sentence the trial court imposed but 

stayed for the commission of attempted voluntary manslaughter will do justice to the 

public interest in enforcement of the criminal laws while recognizing the defendant‟s 

right to avoid excessive punishment. (Cf. Dillon, supra, 34 Cal.3d at p. 489 [modifying 

judgment by reducing degree of the crime to murder in the second degree].) This 

sentence aggregates the base term for the offense defendant was found to have committed 

(§§ 193, subd. (a), 664, subd. (a)) and gives appropriate weight to the statutory 

enhancements for defendant‟s personal use of a firearm (§ 12022.5, subd. (a)) and having 

inflicted great bodily injury (§ 12022.7, subd. (b)).12

Disposition

The judgment is modified to vacate the sentence imposed and to vacate the stay 

with respect to the sentence imposed by the trial court under count one for attempted 

voluntary manslaughter, imprisonment for a term of 12 years. In all other respects the 

judgment is affirmed.

 

12 In view of this disposition it is unnecessary to consider defendant‟s additional 

contention that the sentence imposed by the trial court unreasonably penalizes the 

exercise of the Second Amendment right to bear arms.
17

_________________________

Pollak, Acting P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.

A144351
18

Trial court: Contra Costa County Superior Court

Trial judge: Honorable Trevor White

Counsel for plaintiff and respondent: Kamala D. Harris and Xavier Becerra, 

Attorneys General, Gerald A. Engler, Chief 

Assistant Attorney General, Jeffrey M. 

Laurence, Senior Assistant Attorney General, 

Donna M. Provenzano, Supervising Deputy 

Attorney General, and Arthur P. Beever Deputy 

Attorney General

Counsel defendant and appellant: Robert H. Derham and Tiffany J. Gates

A144351