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Filed 7/11/14 P. v. King CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY LEE KING, Jr.,

Defendant and Appellant.

 A137858

 (Lake County

 Super. Ct. No. CR926466)

On May 7, 2011, defendant Jerry Lee King’s young friend, M.W., argued by text 

and phone with Tina M., whom he wanted to be his girlfriend. A friend of Tina M.

challenged M.W. to fight. King drove M.W. to the house where Tina M. was attending a 

party. Three men approached King’s vehicle and King fired two shots at them with a 

semiautomatic pistol through the car window, severely wounding Marvin Turl. After 

dropping off M.W., King proceeded to the apartment complex where his girlfriend, 

Ashlee Hernstedt (Ashlee), lived. There, by text and phone, King argued with the 

boyfriend of Tiffany Hernstedt (Hernstedt), Ashlee’s sister. Following this argument, 

King brandished his pistol at Hernstedt’s door, making threats.

King was tried for the shooting and the brandishing at the same time. A jury 

found him guilty of six of the seven counts with which he was charged and the court 

sentenced King to 31 years to life in prison.

On appeal, King contends: (1) the court erred in denying his motion to sever the 

charges related to the shooting from the charges related to the brandishing; (2) the court’s 
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sentence constituted cruel and unusual punishment; and (3) the court erred in calculating 

the length of concurrent sentences that were stayed, pursuant to Penal Code section 654.1

King’s contentions are without merit and we affirm.

BACKGROUND

I. Procedural Background

On December 2, 2011, the People filed an information charging King with seven 

counts: (1) attempted murder of Turl (§ 664/187, subd. (a)); (2) assaulting Turl with a 

firearm (§ 245, subd. (a)(2)); (3) grossly negligent discharge of a firearm (§ 246.3, subd. 

(a)); (4) malicious discharge of a firearm from a vehicle (§ 12034, subd. (c));2(5) 

carrying a weapon concealed within a vehicle (§ 12025, subd. (a)(1));3(6) carrying a 

loaded firearm within a vehicle while in a public place (§ 12031, subd. (a)(1));4and (7) 

brandishing a firearm in a public place (§ 417, subd. (a)(2)). 

An allegation of personal discharge of a firearm causing great bodily injury 

(§ 12022.7, subd. (a)) accompanied each of counts 1 through 4. In addition, an allegation 

of personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) 

accompanied counts 1 and 4. Also accompanying count 1 were the following allegations: 

(1) personal discharge of a firearm (§ 12022.53, subd. (c)); (2) personal use of a gun (§§ 

12022.5, subd. (a)(1), 12022.53, subd. (b)); and (3) personal use of a handgun (§§ 

 

1

 Unless indicated otherwise, all statutory citations are to the Penal Code.

2

 Section 12034 was repealed, effective January 1, 2012. (Stats. 2010, ch. 711, 

§ 4, No. 10 West’s Cal. Legis. Service, p. 4138.) The crime of malicious discharge of a 

firearm from a vehicle is now prohibited by section 26100, subdivision (c). Also 

effective January 1, 2012, section 12022.53, subdivision (d), was amended to apply to 

section 26100 rather than to section 12034.

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 Section 12025 was repealed, effective January 1, 2012. (Stats. 2010, ch. 711, 

§ 4, No. 10 West’s Cal. Legis. Service, p. 4138.) The crime of carrying a weapon 

concealed within a vehicle is now prohibited by section 25400, subdivision (a)(1).

4

 Section 12031 was repealed, effective January 1, 2012. (Stats. 2010, ch. 711, 

§ 4, No. 10 West’s Cal. Legis. Service, p. 4138.) The crime of carrying a loaded firearm 

within a vehicle while in a public place is now prohibited by section 25850, subdivision 

(a).
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1203.06, subd. (a)(1), 12022.5, subd. (a)). Associated with count 2, the information 

alleged personal use of a handgun (§ 12022.5, subd. (a)). On the People’s request, an

allegation that the attempted murder was willful, deliberate and premeditated was 

dismissed prior to trial. 

A jury acquitted King on count 1 and found him guilty on the remaining counts. 

The jury found the special allegations with respect to counts 2 through 4 to be true. It 

also found that the brandishing alleged in count 7 occurred in a public place.

At sentencing, the court designated count 4 as the principal offense, for which it 

sentenced King to a term of 5 years, consecutive to an indeterminate term of 25 years to 

life for the section 12022.53, subdivision (d), enhancement. The court imposed a 

sentence of one year for each of counts 5 and 6, both terms to be served concurrently with 

the principal term. The court also imposed a one-year term on count 7, to be served 

consecutive to the principal term. Sentence on the remaining counts and allegations was 

stayed. 

King timely filed a notice of appeal on January 31, 2013. 

II. Factual Background

A. The Shooting Incident5on May 7, 2011

On May 7, 2011, the almost 19-year-old King had a gun in his car. The gun was a 

Hi-Point model CF .380 semiautomatic pistol and was registered to Michael Roy, King’s 

brother-in-law, with whom King lived. King testified that Roy met him at a gas station 

that morning, gave him the gun, and asked him to take it home. King placed the gun 

under the front passenger seat of his car and did not take it out when he returned home 

because it “skipped [his] mind.”

 

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 The charges relate to two incidents—a shooting on May 7, 2011, and the 

brandishing of a firearm in the early morning of May 8, 2011. We refer to the former as 

“the shooting incident” and the latter as “the brandishing incident.” Charges 1 through 4 

relate to the shooting incident, and we refer to these as “the shooting charges.” The 

remaining charges relate to the brandishing incident and we refer to them as “the 

brandishing charges.”
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David Rogers was a friend of King’s and King spent the afternoon and early 

evening at Rogers’s house. Monique Throop6and M.W., who was 13 years old at the 

time, were also there. 

Meanwhile, Tina M., who was 17 years old, Travis Yudnich, Douglas Davis, Turl,

Tonya Sullivan and others attended a Mother’s Day barbecue at the home of Sullivan’s 

mother. Tina M. began to receive text messages and phone calls from M.W., who wanted 

to be her boyfriend. At first, the interchange was friendly, but M.W. became angry when 

Tina M. refused his entreaties. M.W. continued his messages and calls to Tina M. after 

the party moved to Turl’s and Sullivan’s residence, on Walnut Street in Clearlake. Tina 

M. had her phone on speaker, so M.W.’s pleas were heard by others. Sullivan was 

annoyed, picked up the phone, and had a verbal altercation with M.W. Tina M. testified 

that Sullivan challenged M.W. to come over in a “threatful way,” specifying her address. 

Tina M. heard King’s voice in the background over the phone. King said that they had a 

gun.

M.W. told King that he had been challenged and that he wanted to go to Sullivan’s 

house and fight. He asked King for a ride.7 King and M.W., accompanied by Rogers and 

Throop, went to Sullivan’s house. Before leaving, King remembered that the gun was in 

the car, but he did not take it into the house. When they arrived, King parked near the 

corner at Redwood Street. It was undisputed that after arrival, King fired at least two 

shots from his car in the direction of Turl, Yudnich, and Davis, striking Turl.

Turl, Yudnich, and Davis all testified that gunshots came from King’s car without 

provocation on their part. However, shortly after the shooting Turl told a police officer 

that an exchange of racial epithets had preceded the shooting. Yudnich testified that he 

threw his pocket knife at King’s car as it left after the shooting.

King relied on a self-defense claim during trial. M.W. testified that when they 

arrived, Turl, Yudnich and Davis argued with them, calling M.W. a “nigger” and 

 

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Throop is also identified as Martinique in the record.

7

 King testified that he did not want M.W. to go alone and offered to drive him. 
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threatening to beat him. M.W. saw that one of the men held a knife. They began to run 

toward King’s car. As the attackers ran they used the “N word.” The knife was thrown 

at the car, at which point King fired two shots out the passenger window at the 

approaching group.

King’s testimony was similar to M.W.’s. He and M.W. got out of the car after 

they arrived. As soon as they did, he heard yelling and saw “big white guys” 

approaching at a fast pace and yelling, “We’re going to fuck you niggers” and “We’re 

going to kill you.” King and Rogers asked, “Is there a problem?” and one of the men 

replied, “Fuck yeah, there’s a problem, niggers.”

As the men began to run toward them, King saw that one of them had a knife. He 

yelled to M.W., “He’s got a knife. Get back in the car.” The only thing he could think of 

was stopping the person with the knife. So he leaned into the car across the driver’s seat, 

grabbed the gun from under the passenger seat, pointed it out the window and fired at the 

closest person, who was at most 15 feet away. King stopped shooting when the men 

stopped advancing.

King was five feet, five inches tall and M.W. was even smaller. They were “fairly 

smaller” than the three men. King testified, “I was trying to stop him. I figured that if I 

stopped one, it will stop all of them.”

A recorded interview with M.W. was played for the jury. In the interview, M.W.

said that King and Rogers laughed as King was shooting.8

As a result of Turl’s injury, a bullet is permanently lodged in the base of his spine,

causing him constant pain and preventing him from doing things he used to do. A doctor 

and a nurse testified as to the extent of Turl’s injuries and resulting disabilities.

After the shooting, King dropped Rogers and Throop off at Rogers’s house. King 

parked in the driveway of his house, got the keys to the van, and drove M.W. home. He

returned home and then decided to go to Ashlee’s residence. He stated that he took the 

 

8

 Prior testimony by Rogers was read to the jury. Rogers did not recall that King 

was laughing.
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gun with him and put it in the van because he was worried that the men he had 

encountered would come after him. 

The police were dispatched to the scene of the shooting about 9:48 p.m. During 

subsequent investigation, the police found one ejected, semiautomatic .380 ACP caliber 

casing inside King’s car, on the passenger side. The police did not find casings or a 

pocket knife on the street. The spent casing had been fired from Roy’s gun and matched 

the live ammunition later recovered at the scene of the brandishing incident.

B. The Brandishing Incident on May 8, 2011

Hernstedt was Ashlee’s sister and they lived in the same apartment complex in 

Clearlake. On the night of May 7, 2011, she heard King tapping on her window and King 

asked, “Where the fuck is your sister at?” Hernstedt said she didn’t know and told King 

to leave her alone. Hernstedt was scared, so she called her boyfriend, Perry Bishop, to 

tell him what had happened. King pounded on Hernstedt’s door about 30 minutes later. 

She looked through the peephole and told him to go away. King pulled out a gun, cocked 

it and said, “This is for your boyfriend. Don’t have him call me ever again.” Hernstedt 

called the police. Her 911 call was logged at 12:22 a.m. on May 8, 2011.

The police arrived and contacted Hernstedt. They then encountered King as he 

left Ashlee’s apartment. King was “[v]erbally aggressive,” “yelling expletives” such as 

“[f]ucking niggers.” The police handcuffed King and detained him in a patrol vehicle. 

King gave his consent for the police to retrieve the gun from the van. In the van, which 

was registered to Roy, the police found the gun. The gun contained five live rounds. It 

was “functional, operable, and in proper working condition.”

King testified that he had knocked on Hernstedt’s door while looking for Ashlee. 

Hernstedt yelled at him not to come over at that time of night. He was waiting for Ashlee

to arrive when he received a text message from Bishop telling him not to yell at 

Hernstedt. King called Bishop and Bishop told him that he would “fuck [him] up” and 

“beat [him] until [he] couldn’t walk” if he went to Hernstedt’s again. King testified that 

he retrieved the gun from the van, took out the bullets and brandished it in front of 
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Hernstedt’s door while telling her not to “have [her] boyfriend coming over here trying to 

fight [him].” King then put the gun back into the van. 

King conceded that his conversation with Bishop did not justify his using the gun. 

He explained that he was “sh[a]ken up” and “besides [himself]” because of the shooting. 

When Bishop threatened him, he snapped. He went to Hernstedt’s door with a gun so 

that she would call Bishop and tell him not to come. King reloaded the gun before 

putting it back in the van because he believed that Bishop might still come to the 

apartment complex. King acknowledged that he drove with a loaded gun prior to the 

shooting and when he drove from his house to Ashlee’s apartment. 

DISCUSSION

I. Severance of Charges

Prior to trial, King moved to sever the three misdemeanor brandishing counts from 

the felony shooting counts. Following a hearing, the court denied King’s motion. King 

contends that the court erred in denying his motion and that his case was prejudiced as a 

result. We discern no abuse of discretion.

A. Legal Standard

Section 954 provides, in relevant part: “An accusatory pleading may charge two 

or more different offenses connected together in their commission . . . or two or more 

different offenses of the same class of crimes or offenses . . .; provided, that the court in 

which a case is triable, in the interests of justice and for good cause shown, may in its 

discretion order that the different offenses or counts set forth in the accusatory pleading 

be tried separately or divided into two or more groups and each of said groups tried 

separately.”

When charges have been properly joined pursuant to section 954, we review the 

denial of a motion to sever for abuse of discretion. (People v. Smith (2007) 40 Cal.4th 

483, 510.)

B. Section 954 Permits Joinder of the Counts Against King

King contends that section 954 does not permit joinder of the shooting charges 

with the brandishing charges because they are neither “of the same class of crimes” nor 
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“connected together in their commission.”9 We conclude that the shooting incident and 

the brandishing incident were connected together in their commission, so we need not 

consider whether they are of the same class of crimes.

“ ‘Offenses “committed at different times and places against different victims are 

nevertheless ‘connected together in their commission’ when they are . . . linked by a 

‘ “common element of substantial importance.” ’ [Citations.]” ’ ” (People v. Valdez

(2004) 32 Cal.4th 73, 119.)10

“Where an accusatory pleading charges separate offenses each involving the use 

of the same gun in their commission, the joinder has been held to be proper under section 

954.” (People v. Pike (1962) 58 Cal.2d 70, 84; accord, Walker v. Superior Court (1974) 

37 Cal.App.3d 938, 941; see also People v. Kemp (1961) 55 Cal.2d 458, 475 [it was a 

common element of substantial importance that “appellant was armed with the same gun 

and the gun was used in each set of offenses”]; People v. Walker (1952) 112 Cal.App.2d 

462, 471 (Walker).) In People v. Scott (1944) 24 Cal.2d 774, 779 (Scott), the court 

upheld joinder because: “The possession of the firearm in the present case intimidated 

the complainant and was therefore an important element of the rape. It was also the basis 

of the offense charged under the Dangerous Weapons’ Control Law. The possession of 

the weapon was thus a common and important element of each crime.”

King states that “Scott is clearly distinguishable. It did not involve two 

transactionally distinct incidents and it did not hold that the mere fact that a gun was used 

in two disconnected episodes was a sufficient substantial commonality to warrant the 

 

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 The People contend that King is “barred by the doctrine of judicial estoppel” 

from arguing that section 954 does not permit joinder because King’s defense counsel 

conceded that joinder was permitted at the hearing on his motion to sever counts. The 

People cite no authority holding that such a concession waives the issue on appeal. We 

do not consider the question because the People prevail on the merits.

10

 King makes an argument that when the Legislature first permitted joinder of 

charges “ ‘connected together in their commission’ ” in 1915, it did not intend to permit 

joinder of different offenses if they did not relate to the same act or transaction. King’s 

argument was rejected by the California Supreme Court in Alcala v. Superior Court

(2008) 43 Cal.4th 1205, 1218.
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joinder. On the contrary; in Scott, the use of the gun was necessary to show force and 

absence of consent with respect to the rape charge. That same use, involving as it did 

possession, also showed unlawful possession as a factually included lesser offense. In 

this case, the possession and brandishing involved in the second incident were not 

factually included offenses in the first.” King has misread Scott. In Scott, the Dangerous 

Weapons’ Control Law charge was for changing, altering, removing, or obliterating 

identification marks from the firearm (for which possession of the altered firearm was 

presumptive evidence that the possessor had performed the alteration.) (Scott, supra, 24 

Cal.2d at p. 778.) Thus, the charge under the Dangerous Weapons’ Control Law was not, 

as King asserts, a “factually included lesser offense.”11

King also seeks to distinguish Walker as “inapposite to the present case” because 

it “was a case of cross-admissibility of an evidentiary fact in support of an inference of 

identity.” To the contrary, the Walker court was explicitly addressing a question of 

improper joinder when it wrote: “Moreover, a joinder of distinct offenses is permissible 

if there is a common element of importance in their commission. [Citation.] Such a 

common element here appears in that the appellant was armed with the same gun and the 

gun was used in each set of offenses.” (Walker, supra, 112 Cal.App.2d at p. 471.)

King attempts to convince us that “older cases in this area tend to use the term 

‘common element’ when they are in actuality discussing ‘cross-admissibility’ of an 

evidentiary fact to establish identity, scheme or intent. That usage unfortunately tends to 

confuse the statutory pre-requisites for joinder with the evidentiary prejudice analysis 

involved in motions to sever and the question of cross-admissibility.” King cites no 

 

11

 King discusses Scott more adequately in his reply brief. He states: “[I]t 

appears that there was no other evidence of defendant’s possession or tampering other 

than his possession of a tampered with gun at the time of the rape.” We find nothing in 

Scott that justifies this conclusion. Scott provides only a brief factual summary and 

simply states that “[t]he evidence as to Count V shows that defendant had in his 

possession an automatic pistol, and that someone had tampered with the identification 

marks in violation of the statute.” (Scott, supra, 24 Cal.2d at p. 778.) There is no basis 

for concluding, as King does, that the only evidence of defendant’s possession of the 

pistol was evidence of possession during the rape.
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authority in support of that argument, and his example (Walker) does not support the 

argument.

The cases holding that use of the same gun is a common element of substantial 

importance are older cases, but they are still good law. King cites no case to the contrary. 

Section 954 permits joinder of the shooting charges and the brandishing charges.

C. The Court did not Abuse Its Discretion

Further, even if cross admissibility were required under section 954, the 

brandishing evidence would have been admissible in a separate trial on the shooting 

charges here. “In determining whether a trial court abused its discretion under section 

954 in declining to sever properly joined charges, ‘we consider the record before the trial 

court when it made its ruling.’[12] [Citation.] Although our assessment ‘is necessarily 

dependent on the particular circumstances of each individual case, . . . certain criteria 

have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ 

[Citation.]

“First, we consider the cross-admissibility of the evidence in hypothetical 

separable trials. [Citation.] If the evidence underlying the charges in question would be 

cross-admissible, that factor alone is normally sufficient to dispel any suggestion of

prejudice and to justify a trial court’s refusal to sever properly joined charges. 

[Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 774-775 (Soper).)

The prejudice that King asserts was that the jury improperly used evidence of 

King’s brandishing of the gun at Hernstedt as character evidence, tending to negate his 

cognizable claim of self-defense and lowering the People’s burden of proof. King does 

not contend that evidence of the shooting incident prejudiced his defense on the 

brandishing charges.13 Accordingly, we focus only on whether evidence of the 

 

12

 The parties and the court relied on the preliminary hearing testimony.

13

 In closing argument, defense counsel conceded the brandishing-incident 

charges: “[L]et me relieve you of responsibility that you really don’t have, and that is the 

responsibility to decide counts 5, 6, and 7, the brandishing charge at . . . Hernstedt’s 
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brandishing incident would have been admissible in a hypothetical separate trial of the 

shooting charges.

The People argue that evidence of the brandishing-incident was relevant to prove 

King’s intent during the shooting incident. King contends that this argument is 

“misplaced.” He points out that brandishing (§ 417, subd. (a)(2)) is a general intent 

crime, while the attempted murder requires a specific intent. His contention seems to be 

that the willful engagement in a general intent crime cannot be relevant to prove the 

specific intent that is an element of a specific intent crime.

King’s argument fails because a specific intent may be inferred from King’s 

actions during the brandishing incident, even though such an intent was not an element of 

any of the brandishing charges. The question is not whether King’s willful commission 

of the general intent crime of brandishing is relevant to prove intent to murder, but 

whether evidence of the brandishing incident allows an intent on King’s part to be 

inferred, independent of the definition of the crime, that is relevant to prove or disprove 

King’s intent during the shooting incident.

At the hearing on the motion to sever, King’s counsel made it clear that the 

defense would be relying on a theory of self-defense. In closing argument, King’s 

counsel told the jury that self-defense was “the issue in this case.” 

Thus, King himself placed his mental state squarely before the jury. Evidence that less 

than three hours after the shooting incident, King used the firearm with the intent of 

intimidating someone with whom he was having a verbal argument (an offensive use) 

supports the inference that King had earlier employed the gun with similar intent, and not 

with an intent consistent with defensive use. Accordingly, evidence of King’s intent 

during the brandishing incident was relevant to the jury’s consideration of whether King 

 

place. My client admitted it, okay. You can find him guilty of that. Those counts aren’t 

an issue.”
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had acted in self-defense and it had substantial probative value because the brandishing 

so closely followed the shooting.

14

In a hypothetical separate trial on the shooting charges, the People could have 

legitimately sought to admit evidence concerning the brandishing incident, pursuant to 

Evidence Code section 1101, subdivision (b).15 In such a case, the court would have to 

determine whether, “its probative value is substantially outweighed by the probability 

that its admission will (a) necessitate undue consumption of time or (b) create substantial 

danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. 

Code, § 352.)

“ ‘ “Prejudice” as contemplated by [Evidence Code] section 352 is not so 

sweeping as to include any evidence the opponent finds inconvenient. Evidence is not 

prejudicial, as that term is used in a [Evidence Code] section 352 context, merely because 

it undermines the opponent’s position or shores up that of the proponent. The ability to 

do so is what makes evidence relevant. The code speaks in terms of undue

prejudice . . . .’ ‘The “prejudice” referred to in Evidence Code section 352 applies to 

evidence which uniquely tends to evoke an emotional bias against the defendant as an 

individual and which has very little effect on the issues. In applying [Evidence Code] 

 

14

 In his opening brief, King discussed intent with reference to the crimes with 

which he was charged, but failed to discuss the elements of his defense of self-defense 

and the relevance that the intent shown by the brandishing incident had for the jury’s 

consideration of that defense. 

15

 Evidence Code section 1101, subdivision (a) provides: “Except as provided in 

this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character 

or a trait of his or her character (whether in the form of an opinion, evidence of 

reputation, or evidence of specific instances of his or her conduct) is inadmissible when 

offered to prove his or her conduct on a specified occasion.” However, Evidence Code 

section 1101, subdivision (b) provides: “Nothing in this section prohibits the admission 

of evidence that a person committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, or whether a defendant in a prosecution for an 

unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith 

believe that the victim consented) other than his or her disposition to commit such an 

act.”
13

section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Branch

(2001) 91 Cal.App.4th 274, 286.) There was nothing about the brandishing incident that 

would uniquely evoke an emotional bias against King. Nor was its probative value as a 

counter to King’s assertion of self-defense outweighed by the time consumed in 

presenting the evidence. Accordingly, we have no reason to believe that a trial court 

would exercise its discretion to deny admission of the brandishing incident evidence. 

In hypothetical separate trials of the shooting and the brandishing charges, the 

evidence would have been cross-admissible. The general rule is that if the evidence is 

cross-admissible, an argument that the trial court abused its discretion in denying a 

motion to sever fails. There is nothing about this case that argues for an exception to the 

general rule.16 We conclude that there was no abuse of discretion by the court when it 

denied King’s motion for severance of charges. 

D. Joinder of the Charges did not Deprive King of Due Process

“ ‘[E]ven if a trial court’s ruling on a motion to sever is correct at the time it was 

made, a reviewing court still must determine whether, in the end, the joinder of 

counts . . . for trial resulted in gross unfairness depriving the defendant of due process of 

law.’ ” (Soper, supra, 45 Cal.4th at p. 783.) King contends that such was the result in his 

case. 

We reject King’s contention. “ ‘Only if there are no permissible inferences the 

jury may draw from the evidence can its admission violate due process. Even then, the 

evidence must “be of such quality as necessarily prevents a fair trial.” [Citation.] Only 

 

16

 If a reviewing court finds that evidence concerning properly joined charges 

would not be cross-admissible in separate trials, then the court considers additional 

factors: “(1) whether some of the charges are particularly likely to inflame the jury 

against the defendant; (2) whether a weak case has been joined with a strong case or 

another weak case so that the totality of the evidence may alter the outcome as to some or 

all of the charges; or (3) whether one of the charges (but not another) is a capital offense, 

or the joinder of the charges converts the matter into a capital case.” (Soper, supra, 45 

Cal.4th at p. 775.) The first of these factors was involved in our analysis above. The last 

does not apply to this case. Despite King’s argument otherwise, the cases against King 

for both the shooting and the brandishing were strong. 
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under such circumstances can it be inferred that the jury must have used the evidence for 

an improper purpose.’ ” (People v. Albarran (2007) 149 Cal.App.4th 214, 229, quoting 

Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) We have determined that 

the jury could properly draw inferences from the brandishing incident concerning King’s 

intent during the shooting incident. Accordingly, King’s assertion that he was denied due 

process fails.

II. The Sentence did not Constitute Cruel and Unusual Punishment

Prior to sentencing, King requested that the court dismiss the enhancements under 

section 12022.53, subdivisions (a)-(d) “to avoid cruel and unusual punishment and in the 

furtherance of justice under [section] 1385.” The court denied King’s request. Pursuant 

to section 12022.53, subdivision (d), the court imposed a prison term of 25 years to life as 

a component of King’s sentence. King contends that his “sentence was an abuse of 

discretion which resulted in a violation of due process and the prohibition against cruel 

and unusual punishment.” We disagree.

The court had no discretion to dismiss the section 12022.53 enhancement. 

(§ 12022.53, subd. (h) [“Notwithstanding Section 1385 or any other provision of law, the 

court shall not strike an allegation under this section or a finding bringing a person within

the provisions of this section.”]) Nonetheless, “ ‘the courts examine whether a 

punishment is grossly disproportionate to the crime.’ ” (People v. Vallejo (2013) 214 

Cal.App.4th 1033, 1045.) Accordingly, we reject King’s abuse of discretion argument 

and consider only whether his sentence violated the state or federal prohibitions against 

cruel and unusual punishment.

“ ‘The Eighth Amendment does not require strict proportionality between crime 

and sentence. Rather it forbids only extreme sentences that are “grossly 

disproportionate” to the crime.’ ” (Ewing v. California (2003) 538 U.S. 11, 23 (plur. opn. 

of O’Connor, J.).) “Outside the context of capital punishment, successful challenges to 

the proportionality of particular sentences have been exceedingly rare.” (Rummel v. 

Estelle (1980) 445 U.S. 263, 272.)
15

Here, if we consider the gravity of King’s offense to the harshness of the penalty, 

we find no gross disproportionality. “The gravity of an offense can be assessed by 

comparing the harm caused or threatened to the victim or society and the culpability of 

the offender with the severity of the penalty.” (People v. Carmony (2005) 127 

Cal.App.4th 1066, 1077.) The harm that King caused Turl was significant. The bullet 

pierced two segments of Turl’s colon and his kidney and was permanently lodged next to 

his spine. Turl has trouble walking 80 percent of the time and is in constant pain. He is 

unable to play with his children as he used to and has lost his career. The harm 

threatened Turl was even more severe: the bullet came within an inch of his aorta and he 

would have bled to death in 5 to 10 minutes had the bullet struck there. 

King’s actions also threatened society. At sentencing, the court quoted the 

probation officer’s report: “The defendant fired a handgun in a residential area that was 

very populated. His reckless actions and blatant disregard for the safety of the public 

could have resulted in additional victims.”

King was highly culpable—he admitted that he intentionally discharged his 

firearm at a group of people when they were 10 to 15 feet away from his car. In 

comparison to the harm that King caused and his level of culpability, a sentence of 31 

years to life in prison is not so extreme as to be grossly disproportionate.

“ ‘In determining whether a particular sentence constitutes cruel or unusual 

punishment under the state Constitution (art. I, § 17), we must determine whether the 

penalty “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. Dennis

(1998) 17 Cal.4th 468, 511.) Courts examine the nature of the offense and offender, 

compare the punishment with the penalty for more serious crimes in the same 

jurisdiction, and measure the punishment to the penalty for the same offense in different 

jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 [superseded on other grounds as 

stated in People v. Caddick (1984) 160 Cal.App.3d 46, 51-52].)

As for the nature of the offender, King cites his youth and lack of prior criminal 

conviction. He relies on Graham v. Florida (2010) 560 U.S. 48. In Graham, the court 
16

held that the Eighth Amendment prohibits juveniles who have not committed homicide 

crimes from being sentenced to life without the possibility of parole. (Id. at p. 82.) 

However, King was not a minor at the time of his offense and his sentence is not 

tantamount to life without the possibility of parole. (See People v. Abundio (2013) 221 

Cal.App.4th 1211, 1220-1221.)

King compares the sentence he received to the maximum sentence he could have 

received on the counts for which he was found guilty, excluding the section 12022.53, 

subdivision (d), enhancement. This is not relevant to our analysis, in which we might 

consider whether, had King committed more serious crimes, he would have received 

lesser punishment. We need only note that section 12022.53, subdivision (d), applies to a 

wide range of felonies:17 those “specified in subdivision (a), Section 246, or subdivision 

(c) or (d) of Section 26100” when the defendant “personally and intentionally discharges 

a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or 

death.” (§ 12022.53, subd. (d).)

King presents no evidence or argument concerning the punishment for the same 

offense in different jurisdictions.

King’s youth and lack of criminal history do not mitigate the harm caused and 

threatened to Turl and to society. “A defendant has a ‘considerable burden’ to show a 

punishment is cruel and unusual.” (People v. Meneses (2011) 193 Cal.App.4th 1087, 

1092-1093.) King has not satisfied that burden.

 

17

 King does compare his sentence to that which he might have received had he 

been convicted of an intentional shooting from a vehicle resulting in death (§ 190, subd. 

(d)). He notes that his sentence “was greater than the 20 years to life sentence” he would 

have received under that section of the Penal Code. However, King fails to take into 

account the fact that a charge under section 190, subdivision (d), may also be 

accompanied by a section 12022.53, subdivision (d), allegation, which if found true, will 

result in a sentence of 45 years to life. Thus, the more serious crime (§ 190, subd. (d)), if 

accompanied by the same enhancement to which King was subject, results in a longer 

sentence than King received. This does not assist King’s argument.
17

III. King was Sentenced Correctly

On count 2, the court imposed and stayed a concurrent middle term of three years 

plus a stayed upper term of 10 years for the personal use of a firearm, stating that the 

upper term was justified by appellant’s firing of more than one round. On count 3, the 

court imposed and stayed a concurrent middle term of two years, enhanced by a stayed 

term of three years for resulting great bodily injury. 

King contends that, pursuant to section 1170.1, subdivision (a), “correct 

sentencing procedure was to impose and then stay a consecutive sentence of one third the 

mid-term for the subordinate counts [counts 2 and 3].” 

Section 1170.1, subdivision (a), provides, in relevant part: “(a) Except as 

otherwise provided by law, and subject to Section 654, when any person is convicted of 

two or more felonies, . . . and a consecutive term of imprisonment is imposed under 

Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall 

be the sum of the principal term, the subordinate term, and any additional term imposed 

for applicable enhancements for prior convictions, prior prison terms, and Section 

12022.1. The principal term shall consist of the greatest term of imprisonment imposed 

by the court for any of the crimes, including any term imposed for applicable specific 

enhancements. The subordinate term for each consecutive offense shall consist of onethird of the middle term of imprisonment prescribed for each other felony conviction for 

which a consecutive term of imprisonment is imposed, and shall include one-third of the 

term imposed for any specific enhancements applicable to those subordinate offenses.”

King has misread section 1170.1, subdivision (a), because, by its own terms, it 

applies only to consecutive sentences, and not to the concurrent sentences imposed on 

counts 2 and 3. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 [“[t]he onethird-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive 

sentence, not a sentence stayed under section 654”].) The reason for this is so that if any 

of the counts are invalidated on appeal, a stayed sentence on the remaining count or 

counts will serve as the principal term and “will ensure that defendant’s punishment is 

commensurate with his criminal liability.” (Ibid.)
18

DISPOSITION

The judgment and sentence of the trial court are affirmed.

_________________________

Brick, J.*

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.