Filed 5/30/13 P. v. Garcia CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
JOSE GARCIA,
Defendant and Appellant. B234395
(Los Angeles County Super. Ct. No. BA303810)

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

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Zee Rodriguez and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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

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

2 In January 2012, this section was renumbered as section 29815.3 unlawful firearm activity but d eadlocked on whethe r defendant was guilty of first degree murder, and a mistrial was d eclared as to that count. 3 The third jury found defendant guilty of first degree murder and found the firearm and special circumstance allegations
to be true.
2. Prosecution evidence 4 On January 17, 2006, Emilio Isaac Huesca was drivin g a red Cadillac owned by his friend, Armando Arias, in the City of Lo s Angeles, with Arias as a passenger. The Cadillac was equipped with various electron ics including television screens mounted on the back of the front seat headrests, and a PlayStation. At a pproximately 11:45 p.m., Detective Kelle Baitx of the Los Angeles Po lice Department responded to a shooting call and found Arias in an alley behind his house. Arias had been shot several times and was on his knees facing the wall. His upper bod y was leaning against the wall. The red Cadillac was gone. Detective Baitx found a single bullet on the ground and it was
booked into ev idence and submitted for testing. Detective Tommy Thompson in terviewed Huesca and tes tified that Huesca told him that two people in a car blocked the Cadillac in the alley. 5 Surveillance video
cameras were located at a Laundromat across th e street from the alley but did not capture the shooting. A video time stamped at 11:30 p.m. showed a car similar to defendant’s mother’s Acura, circle the area a nd then back up into the alley. Dr. Stephen Scholtz, a deputy medical examiner in the Lo s Angeles County Coroner’s Office and a forensic pathologist co nducted an autopsy on Arias’s body, which had 12 entry wounds located on the back of the bo dy. One entry wound was in the head

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

4 In the second trial, in which the jury found defendant guilty of unlawful firearm activity, the parties stipulated that prior to January 17, 20 06, a court ordered defendant not to possess a firearm. The facts relevant to the issues on app eal are taken from the third trial.

5 Huesca did not testify and at the time of trial his whereabouts were unknown.4 by the right ear and the majority were locate d in the lower back of the torso. The gunshots damaged Arias’s internal organs and three of the wounds were fatal. The cause of death was multiple gunshot w ounds and the downward traj ectory of the bullets was consistent with the victim being shot from be hind, as he knelt on the ground. Dr. Scholtz
recovered four medium caliber bullets from Arias’s body during the autopsy. Los Angeles Police Department Officer Genaro Arredondo, a firearms expert, conducted forensic testing on the expended bullet found at the shooting scene and those recovered by Dr. Scholtz. All fi ve bullets were of the same general caliber and were fired from either a nine-millimeter, .38-caliber, or .357-caliber gun. Two of the bullets recovered from Arias’s body we re fired from a single gun. The other three bullets were extensively damaged and Office r Arredondo could not defin itively establish that they were also fired from the same gun. At about 3:00 p.m. on January 18, Rolando Gavidia saw a large flatbed tow truck dropping off a red Cadillac on the street outsi de his house. Gavidia saw his neighbor, Russell Garcia, speak with two young men in a white Explorer that accompanied the tow truck. One of the young men was later identified as Ramon Garcia, Russell’s son. 6 Gavidia’s son called the police to report the pr esence of the red Cadillac. All electronic equipment including the stereo and headrest television screens had been removed from
the Cadillac. Detective Thompson interv iewed Ramon at a juvenile camp. Defendant paid Ramon and Luis Flores to dispose of the stol en Cadillac. The car battery did not work when the electronic equipment was removed so defendant arranged for the Cadillac to be transported to Russell’s house. Ramon iden tified defendant by his distinctive gang
tattoos and street moniker.
Defendant was arrested on June 1, 2006, and advised of his cons titutional rights.
The detectives told defendant the entire shooting was captured on video. Initially,

6 We refer to Russell Garcia and his son Ra mon Garcia by their first names to avoid confusion, not out of di srespect. They are not related to defendant.5 defendant did not talk to the detectives but when walking toward th e booking area at the police station he told Detec tive Thompson that he though t the Cadillac belonged to
Huesca. He had been in the Cadillac with Hu esca in the past and about two weeks before the shooting followed him w ith the intention of stea ling the car and selling the
electronics. Detective Thom pson took defendant aside wh en he started to provide
additional details of the shooti ng and recorded the conversation. 7 On the day of the shooting, defendant saw Huesca driving the Ca dillac and followed the car to the alley.
He used his mother’s Acura to block the Cadillac from leav ing the alley. He ordered
Arias and Huesca out of the car and told them to face the wa ll and not to look at him. Arias “kept fidgeting” and defe ndant shot him with a .38-caliber gun. He took the
Cadillac to his mother’s house and removed all of the electronic equipment. He asked his
friends Ramon and Flores to help dispose of the Cadillac and told them it was stolen, but “not that hot.” Defendant paid for a tow tr uck to move the Cadillac because the battery stopped working. Defendant said he dispos ed of the gun but would not disclose the location. He also refused to identify the in dividual that drove his mother’s Acura away
from the crime scene. At the end of the interview, defendan t was told he was allowed to make a telephone call. Defendant’s cell had a telephone and a mon itoring device and defendant’s side of
the conversation was record ed when he made a call. 8 Defendant said, “Shit they got me
motherfucker. For the murder. They got me for murder. . . . They got me on video and they fuckin.’ They got me driving and shit.” In Span ish, defendant said, “they have everything, dude, they have everything.”

7 A compact disc containing an audio reco rding of the intervie w was played for the jury and, along with a transcri pt, was admitted into evidence.

8 A compact disc containing an audio recording of defendant’s portion of the conversation was played for the jury and, along with a transcript, was admitted into evidence.6 DISCUSSION
I. Dual Use Doctrine
Defendant claims that the trial court violated California Rules of Court, rule 4.420(d), 9 known as the dual use doctrine, by usi ng a factor that was an element of
the crime of unlawful firearm act ivity (§ 12021, subd. (d)(1)) 10 to justify imposing the upper term for the same crime. The Peop le respond that defe ndant has forfeited any challenge to his sentence on this basis because he failed to object in the lower court to the court’s imposing the aggravated term. The Supreme Court, in People v. Scott (1994) 9 Cal.4th 331, held “that the waiver doctrine should apply to claims involving the trial court’s fa ilure to properly make or articulate its discretionary sentencing choices . Included in this category are cases in which the stated reasons allegedly do not appl y to the particular case, and cases in which the court purportedly erred because it double- counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” ( Id. at p. 353.) The court concluded, “In sum, we hold that complaints
about the manner in which the trial cour t exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” ( Id. at p. 356.) In the instant case, defendant had an oppo rtunity to do so but did not interpose an objection at the sentencing hearing or argue th at the trial court’s consideration of his probation status was imprope r or somehow constituted an impermissible dual use of

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

10 In January 2006, when defendant committed the offens es herein, section 12021, subdivision (d)(1) stated in re levant part: “Any person who, as an express condition of probation, is prohibited or restricted from owning, possessing, controlling, receiving, or purchasing a firearm and who ow ns, purchases, receives, or has in his or her possession or under custody or control, any firearm . . . is guilty of a public offense . . . .”7 facts. We therefore conclude that his appe llate challenge to the trial court’s sentencing choices and supporting rationale must be deemed waived.

II. Constitutionality of Defendant’ s Life Without Parole Sentence
Defendant contends that hi s sentence of life without the possibility of parole violates the Eighth Amendment’s and the St ate Constitution’s proscr iptions against cruel and unusual punishment because it was grossly disproportionate. 11 We find this argument unavailing. First, defendant failed to raise this c ontention in the trial court and therefore forfeited the issue on appeal. Nevertheless, to forestall a subsequent ineffectiveness of counsel claim and in the interest of judici al economy, we cons ider the issue. ( People v.
Norman (2003) 109 Cal.App.4th 221, 230.) Under the Eighth Amendmen t of the federal Constitution, we must assess three factors to determine whether a sentence is disp roportionate to the offe nse: (1) the gravity of the offense and the harshness of the penalty ; (2) sentences imposed for other crimes in the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions. ( Ewing v. California (2003) 538 U.S. 11, 22.) Defendant makes no attempt to present an intrastate comparison of sentences for other crimes or an interstate comparison of
sentences for the same crime. Hi s argument fails on this basis alone. Under the California Constitution, we a ssess whether a punishment “shocks the
conscience and offends fundam ental notions of human dignity” based on a number of factors, including: (1) the na ture of the offense and/or the offender; (2) a comparison of the sentence with punishments prescribed in California for different offenses; and (3) a comparison of the challenged sentence with punishments prescribed for the same offense in other jurisdictions. ( In re Lynch (1972) 8 Cal.3d 410, 424.) We reject defendant’s

11 “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” (Cal. Const., art. I, § 17.) “Excessive ba il shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.)8 claim of disproportionality under the Califor nia Constitution for the same reason that we reject his federal claim—he has failed to offer any inter- and in trastate comparisons. People v. Dillon (1983) 34 Cal.3d 441 ( Dillon ), on which defendant relies, holds
that murder committed in the commission of a robbery is a serious crime presenting a high level of danger to society. In that case, however, our Supr eme Court concluded the facts of the specific crime in question and th e defendant’s culpability weighed in favor of concluding the impos ition of a life sentence constituted cr uel or unusual punishment. ( Id. at pp. 488–489.) The particular facts of Dillon were central to our Supreme Court’s conclusion. The shooting in Dillon occurred during an attempt to steal marijuana plants the victim was cultivating. ( Id. at pp. 451–452.) The defenda nt had previously overheard
the victim threaten to shoot a nyone coming on his property. ( Id. at p. 451.) An accidental firearm discharge during the atte mpted robbery alerted the victim to the presence of the defendant and his cohorts. ( Id. at p. 452.) The defendant heard the victim approaching, saw him carrying a shotgu n, and, “[w]hen [the victim] drew near, defendant began rapidly firing his rifle at him.” ( Ibid. ) The facts in Dillon contrast dramatically with the carjacking, robbery and murder of Arias. Defendant had a prior criminal histor y and was on probation at the time of the
murder. Defendant chose to take the Ca dillac while it was being driven, thereby guaranteeing a confrontation with the owner. He carefully planned the carjacking having
followed Huesca some two weeks earlier. De fendant chose to force Arias and Huesca to kneel by the wall when they exited the Cadillac and did not leave immediately with the Cadillac. When Arias “fidgeted,” defendant s hot him in the back a nd head 12 times. He then stripped the Cadillac of its electronic co mponents and made plans with his friends to dispose of it. Defendant showed no remorse in his statements to police or at sentencing.
Defendant contends that his sentence c onstitutes cruel and u nusual punishment because he was “barely more than a child himself” wh en the shooting occurred. Defendant was 18 years old, a nd, under these circumstance s, we find the factor of defendant’s age was “substantially outweighe d by the seriousness of the crime and the9 circumstances surrounding its commission . . . .” ( People v. Gonzales (2001) 87 Cal.App.4th 1, 17.) Successful challenges to sentences on the grounds of cruel and unusual punishment are rare. ( In re Nuñez (2009) 173 Cal.App.4th 709, 734, 735.) This
is not one of the rare cases in which the se ntence imposed should be reduced as cruel and
unusual.

III. Court Security Fee Defendant argues, and the People concede, that the trial court improperly imposed a total security fee of $80, pursuant to secti on 1465.8, subdivision (a)(1). At the time of defendant’s conviction on count 2, on Octo ber 27, 2008, former section 1465.8, subdivision (a)(1) provided: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .” As of October 19, 2010, the security fee was increase d to $40. (§ 1465.8, subd. (a)(1), as amended by Stats. 2010, ch. 7 20, § 33.) Because the $40 security fee was
unauthorized at the time defe ndant was convicted of coun t 2, we will correct the judgment. (See People v. Davis (2010) 185 Cal.App.4th 998, 1000 [new court facilities fee imposed by Gov. Code, § 70373 does not apply to cases in which the defendant’s conviction was rendered before effective date]; People v. Alford (2007) 42 Cal.4th 749, 754 [§ 1465.8’s “legislative history supports the conclusion the Legislature intended to impose the court security fee to all co nvictions after its operative date”].)10 DISPOSITION The judgment is modified to reduce the section 1465.8 court security fee from $80 to $60 for the reasons stated herein. The trial court is directed to send a corrected abstract of judgment to the Department of Corre ctions and Rehabilita tion reflecting the modification in the amount of the court security fee. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

________________ _____, J. *
FERNS
We concur:

________________ ____________, Acting P. J.
ASHMANN-GERST

___________________ _________, J.
CHAVEZ

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