THE PEOPLE v. <<

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v.

ANGEL JOSE CABANILLAS, Defendant and Appellant. v. v.

F058890

Decided: March 30, 2011

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Appellant Angel Jose Cabanillas, a juvenile who was tried as an adult, was convicted of nine offenses, including the second degree murder of Manuel Rayas (Pen.Code,1 § 187;  count 1), shooting at an inhabited house (§ 246;  counts 4–6), the premeditated attempted murder of Andres Esparza (§§ 664/187;  count 7), discharging a firearm from a motor vehicle (§ 12034, subd. (c);  count 8), assault with a firearm (§ 245, subd. (a)(2);  counts 9–10), and active participation in a criminal street gang (§ 186.22, subd. (a);  count 11).2  The jury also found numerous sentence enhancement allegations to be true, including allegations the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).  Appellant was 14 years old at the time he committed the crimes.   He was sentenced to prison for an aggregate term of 132 years to life.

On appeal, appellant contends:  (1) the trial court erred by excluding the audio portion of a defense video showing appellant, supposedly intoxicated, in a police interview room following his arrest;  (2) the trial court erred by permitting the prosecution to present an excessive amount of evidence of prior gang-related crimes committed by appellant and members of his gang;  (3) the trial court erred in instructing the jury on second degree felony murder;  (4) the trial court erred in imposing both the gang and personal firearm use enhancements for appellant's convictions of assault with a firearm;  and (5) appellant's lengthy prison sentence constitutes cruel and unusual punishment.   We agree with appellant's fourth contention, which respondent concedes, and will remand the matter for the trial court to restructure appellant's sentence.   In all other respects, the judgment is affirmed.

A. Background

The prosecution presented evidence that, one evening in June 2006, appellant engaged in a short but violent crime spree in a residential neighborhood in Modesto, leaving one person dead and another seriously injured.   Appellant committed the crimes from the right front passenger seat of a teal-colored Honda, which stopped at four different houses located in close proximity to one another.   The Honda was driven by Isidoro Mata. Appellant's brother, Pedro Cabanillas, was also a passenger in the car.   All three of the Honda's occupants were members of the Sureño criminal street gang, particularly the Sureño set known as South Side Trece (SST).3

The defense did not dispute that appellant was a gang member or that he engaged in the conduct underlying the charged offenses.   The defense relied primarily on the theory that appellant acted without the requisite mental state for a number of the offenses and enhancements due to intoxication and various mental conditions, including posttraumatic stress disorder.   Among other things, appellant presented evidence that, less than a week before the shootings, he was released early from juvenile hall and tried unsuccessfully to obtain medications that had been prescribed to him by the juvenile hall psychiatrist for the treatment of depression, insomnia, and auditory hallucinations.

B. The Prosecution

On June 10, 2006, around 6:00 p.m., the subject Honda stopped at a house located on Montavenia Street.   Appellant pointed a rifle out the front passenger window at mainly juvenile members of the Marquez family, who were spending time in their front yard.   Appellant focused particularly on 16–year–old Alicia, who was sitting on a car parked in the driveway and wearing a red sweatshirt.   Red is a color associated with the Norteño gang, an enemy of the Sureño gang.   Before the Honda drove away, appellant cursed at the Marquez children and said something in Spanish that meant essentially, “What are you looking at, you mother F'er?” Appellant also made an angry comment about the color of Alicia's shirt.   During the incident, one of the Honda's passengers threw up a gang hand sign representing the number 13.

After leaving the house on Montavenia Street, the Honda stopped at a house two doors down on Parducci Street.   There, appellant spoke with a juvenile named Esteban, saying, “Come on, we gotta go do this.”   Esteban responded, “Okay, okay, I'll be there.”   Esteban's sister, Azalia Berumen, came out of the house and pulled Esteban away from the Honda.   Berumen shouted at the occupants of the Honda to get away from her brother.   She also hit and kicked the car with her hands and feet.   As Berumen was standing approximately two feet from the Honda, appellant pointed a rifle at her and told her to get away from the car.   Berumen threw herself down and the Honda drove away.   Shortly thereafter, Berumen heard the sound of gunshots coming from the direction of Almaden Way, which was a street behind Parducci Street.

At the subject house on Almaden Way, a large birthday party was in progress, with more than 20 adults and 15 children in attendance.   A bounce house, a table with chairs underneath a tarp, and a basketball court were set up in front of the house and all were in use.   The door to the garage was open.   The garage was being used as a place to serve food and as a seating area for people to eat and watch a pay-per-view fight.   None of the partygoers was known to be involved in either the Norteño or Sureño gang.

During the incident on Almaden Way, the Honda drove by the house three or more times.   On the first pass, the Honda slowed down but did not stop.   When the car reached the corner, appellant leaned out the window and put his hands up in a “What's up” gesture.

On the second pass, the Honda stopped in front of the house and appellant pointed a rifle at Johnny Silva.   At the time, Silva was wearing a red and white jersey associated with the San Francisco 49ers football team.   Silva jumped behind a vehicle and people started yelling and running, and trying to get all the children inside the house.

When, just minutes later, the Honda approached a third time, the few men remaining in front of the house tried to take cover inside the open garage, including Silva and his brother, the victim Manuel Rayas, who was the last person to get inside the garage.   Meanwhile, the Honda stopped directly in front of the driveway.   Appellant pointed a rifle out the car window and fired at least two shots, one of which hit a dryer inside the garage.   At this point, the Honda may have left and returned quickly.   Appellant fired another shot that struck Rayas in the chest.   Rayas later died in the hospital as a result of the gunshot wound.

Finally, the Honda stopped at a house on Spokane Street.   Andres Esparza, who was around 17 years old, was standing in the driveway talking on a portable telephone.   His father was also sitting outside in front of the house.   One of the Honda's occupants said, “We are scrapas.”   Esparza answered, “What do I have to do with that?”   Appellant pointed his rifle out of the window.   When Esparza dropped to the ground, he was shot in the right calf.   An ambulance arrived quickly and transported Esparza to the hospital.   Esparza explained that doctors never removed the bullet from his leg because it would have required extensive cutting to his leg from the knee down.

Although Esparza denied any gang membership, he had a “Mongolian haircut” which is a style associated with the Norteño gangs in Stanislaus County.   Esparza also had a large tattoo across his chest that read “DSSM.” “DSSM” are the initials of Deep South Side Modesto, a set of the Norteño criminal street gang.

Beginning at 6:11 p.m., the first of a series of 911 calls concerning the shooting at Almaden Way was received by Stanislaus County emergency dispatch.   At 6:14 p.m., a 911 call regarding the shooting at Spokane Street came in.   Dispatch provided police officers on patrol with a description and partial license plate number for the Honda.   At 6:23 p.m., a police officer reported to dispatch that he was following a teal Honda Accord matching the description.   The officer had spotted the Honda crossing the Seventh Street Bridge.

At 6:27 p.m., the Honda was stopped by three patrol cars.   After the Honda's occupants were removed from the car and placed under arrest, officers searched the car and found two 40–ounce bottles of beer on the right front passenger seat.   One of the bottles was full, and the other was about half full.   Officers later returned to the Seventh Street Bridge, which crossed a river.   They went to see if they could find any contraband, such as a weapon, that had been discarded from the Honda but did not find anything.

The prosecution presented evidence that appellant was belligerent towards police officers during his arrest.   When he got out of the Honda, he shouted profanities at the officers.   When appellant was asked to lift up his shirt, he pulled off both the shirts he was wearing and threw them on the ground.   Appellant continued to yell, saying “the officers ‘are a bunch of fucking rednecks, and fucking white boys,’ and ‘You're only pulling us over because we're Mexican.’ ”   Appellant also yelled, “You don't know who the fuck we are.”   Appellant yelled out “South Side,” after he was handcuffed and as he was being placed in a patrol car.   The jury was shown a brief video of appellant making taunting comments to an officer after he was placed in the patrol car.

Although appellant was agitated and loud during his arrest, he did not appear to be intoxicated to any of the officers that testified at trial.   For example, Officer Ryan Mayfield testified that appellant appeared aware of his surroundings and what was happening.   Appellant was able to walk without assistance and did not slur his speech.   Officer Mario Gonzales further testified that, although he could smell alcohol on appellant, he did not think appellant was drunk or intoxicated to the point he did not know what he was doing.   Officer Gonzales observed that appellant was able to move and walk on his own and appeared to be in control of his movements.

Gang Evidence

Modesto Police Officer Robert Gumm met appellant in juvenile hall on December 31, 2005, six months before this incident, when the officer was there to interview another minor.   Appellant signaled to get Officer Gumm's attention and told the officer that he wanted to talk to the police.   Officer Gumm realized appellant was the person who had been shot in a recent incident under investigation by the sheriff's department.

Officer Gumm arranged to talk to appellant at the sheriff's department on January 4, 2006.   Appellant was still in custody at the time.   Two sheriff's detectives were present when Officer Gumm conducted what is known as a “debrief,” which is where a gang member provides information to law enforcement agents about what is going on in his gang and on the street.   It is considered a very valuable tool for gathering intelligence about gangs.

Officer Gumm testified that appellant wanted to speak with the police because he was seeking to have charges that were pending against him dismissed.   Officer Gumm explained that the day appellant was shot, a firearm was located that appellant admitted belonged to him.   As a result, appellant was charged with being a minor in possession of a firearm.

Officer Gumm told appellant he would talk to the district attorney's office but warned appellant that he could not make any promises and it was up to the district attorney to decide whether to pursue or drop the charges.   Although Officer Gumm never talked to the district attorney's office, the charges were eventually dropped.   Officer Gumm never told appellant that he had not contacted the district attorney's office.

During the debriefing, appellant admitted he was an SST gang member.   Appellant said he had been jumped into the gang by Albert Robles and Reynaldo Gonzalez and was given the gang moniker “Shadow.”   Appellant estimated there were approximately 45 members of SST.

Appellant also identified various sets of the Sureño gang and rival Norteño gang.   One of the Norteño sets appellant mentioned was Deep South Side Norteño (DSSN), which also went by the name Deep South Side Modesto (DSSM).

Appellant identified numerous SST members, some by name, some by their gang monikers, and some by other factors such as their street address, or the type of car they drove.   The trial court overruled the defense's Evidence Code section 352 objection to Officer Gumm's testimony regarding this information, which the prosecutor argued was relevant to demonstrate the extent of appellant's knowledge of the gang.

In addition to identifying SST members, appellant described various criminal activities in which they engaged.   Appellant identified three SST members who possessed guns and what types of guns they possessed.   Appellant also described the SST's hit list or list of persons that were “green lighted,” meaning SST leadership had preapproved assaults on such persons.   Appellant specifically named about a half dozen people as being on the list.   Appellant also said the list included any member of the Vernon Block Gangsters (VBG), a subset of the Norteño gang.

Appellant told Officer Gumm about two drive-by shootings in which appellant was involved with SST members Isidoro Mata (the driver in this case), and Andres Hernandez.   Both shootings occurred in November 2005, about a week apart from each other.   During one of the shootings, appellant was in the backseat of Hernandez's vehicle, Hernandez was driving, and Mata was in the front passenger seat.   Mata had a .22 revolver, which he used to shoot at a house on Amador Street.   In the other shooting, appellant was driving Hernandez's vehicle, Mata was in the backseat, and Hernandez was seated in the front passenger seat.   Hernandez fired a .25 semiautomatic firearm multiple times at a house on North Riverside.   One of several males standing in front of the house was shot in the neck.   The gun was later thrown into the Tuolumne River.

Appellant also identified two SST members, Homar Garcia and Reynaldo Gonzalez, as the shooters in a homicide that occurred in June 2005.   Appellant said that Reynaldo used a .38 revolver and Garcia used a .22 semiautomatic handgun.   After the shooting, they came to appellant's house and showed him the empty casings from the .38 revolver, and indicated they wanted appellant to throw them in his trash.   When appellant told them they were not going to throw them in his trash, they discarded the casings in a neighbor's trashcan.   Appellant also said he saw the .38 revolver they used in the shooting, and that several days later they threw it off the Seventh Street Bridge into the Tuolumne River.

Appellant further identified two SST members as being perpetrators in a stabbing that was being investigated by the sheriff's department and two others who were involved in a homicide of a Norteño gang member.

Appellant also discussed crimes committed against members of his own gang.   Appellant identified Mario Armenta as the shooter in a homicide of SST associate Ramiro Sosa. Other SST members had been present during the shooting and told appellant that Armenta was the shooter, but they were uncooperative with police because they wanted to handle the situation themselves.   As a result of the shooting, Armenta was green lighted.   In a more recent incident in December 2005, appellant's cousin, Jefte Garcia, was killed.   Appellant also described the two persons associated with the homicide as being green lighted.

Following the debriefing on January 4, 2006, Officer Gumm put the information appellant provided in a report and disseminated the report to other law enforcement agents, including those in the sheriff and police departments.

On March 28, 2006, Officer Gumm spoke with appellant again at appellant's house.   Because appellant's family did not know he was providing information to the police, Officer Gumm used a probation search as a pretext for the meeting.   Appellant provided Officer Gumm with information regarding the homicide of Jair Garcia on March 23, 2006.   Jair Garcia was the brother of Jefte Garcia, who was killed in December 2005, and was also appellant's cousin.   Appellant said several SST members were talking and they believed the killing of Jair Garcia was carried out by a DSSN or DSSM member, and they talked about doing a shooting on that gang in retaliation.

Appellant also talked about a recent shooting at the address of a documented VBG member.   Appellant identified SST member Armando Neri as the likely shooter.   Appellant said Neri was in possession of a .38 handgun, a .22 handgun, and a rifle.   He thought the guns would be at Neri's house, and that Neri and another Sureño possibly committed the drive-by shooting in an older white car that was owned by Neri's girlfriend.   In addition, appellant told Officer Gumm that SST members commonly used stolen cars to commit drive-by shootings.   Appellant identified Ricardo Garcia as providing shaved keys, which was one of the ways they had access to stolen cars.

During this second meeting with appellant, Officer Gumm was worried about appellant and told appellant that if he ever got involved in something big like a shooting, he was not going to be able to help appellant.   Officer Gumm also gave appellant $100.   Officer Gumm testified that the money was for information appellant provided that later led to the arrest of a documented gang member and recovery of a sawed-off shotgun.   Officer Gumm explained that the information gave officers a means to search Aurelio Tejeda's home.   When they searched Tejeda's home in February 2006, they found a sawed-off shotgun that was painted blue.   Officer Gumm explained that blue is the color associated with Sureños.   Officers also located shotgun ammunition.   As a result of the search, Tejeda was arrested and convicted of two charges with gang enhancements.

Officer Gumm's last contact with appellant was on April 19, 2006, during a probation search set up by the probation department.   During the search, Officer Gumm stayed outside with appellant.   Appellant immediately told Officer Gumm that he had some ammunition he wanted to turn in.   Appellant directed the officer to a half-full Winchester box containing 27 rounds of semiautomatic ammunition.   The box bore the words “187 chaps” in blue writing.   Officer Gumm explained that “187 chaps” was a derogatory term used by Sureños against Norteños.   The “187” represented the Penal Code section number for murder, and “chaps,” which was short for “chepette,” was a derogatory term for Norteños.   Two additional types of ammunition were also recovered during the search.

Officer Sharpe's Testimony

Samuel Sharpe, a juvenile probation officer who worked with the Gang Intelligence Office, testified for the prosecution as an expert in criminal street gangs.   Officer Sharpe explained that South Side Trece is a set of the Sureño gang, with approximately 30 to 45 members.   SST and Sureños identify with the color blue, the number “13,” and shaved heads.

A few days prior to Officer Sharpe's testimony, the defense raised a question as to the admissibility of 53 incidents the prosecutor had indicated Officer Sharpe would be called on to testify to support his opinion that appellant and his two companions in the instant case qualified as gang members under criteria employed by the Modesto Police Department.   The court deferred ruling on the admissibility of the incidents until the prosecutor was able to provide the court with a list of the incidents.

When the issue came up again the morning of Officer Sharpe's testimony, the parties indicated they had agreed to stipulate “that Pedro Cabanillas and Isidoro Mata are documented members of the criminal street gang Sureños, and the Sureño set known as South Side Trece, or SST.” As a result of the stipulation, the number of incidents the prosecutor sought to introduce fell from 53 to 14 incidents (specifically referred to as incidents 51, 17, 35, 23, 32, 48, 11, 14, 26, 6, 27, 19, 33, 12).   The trial court ruled all but one of the 14 incidents admissible.   Officer Sharpe subsequently testified about most of these incidents and explained how they and other evidence, summarized in the chart below, supported his opinion that appellant was an SST gang member under the relevant criteria employed by the police department to validate a person as a gang member.

Gang Membership Criteria

Supporting Incidents and Evidence

(1) Self-proclaimed

On May 6, 2005, appellant told Detective Richards he joined the Sureño gang a few months earlier for protection and items located on appellant at the time also proclaimed membership (i.e., blue marijuana smoking pipe etched with “X3” and “SST”) (Incident 51);  during their conversations in 2006, appellant told Officer Gumm he was an SST member;  and on June 10, 2006, in the instant case, appellant said “South Side” to an officer during his arrest.

(2) In-custody classification admission

No incidents discussed.

(3) Arrested with gang members

In the instant case, appellant was arrested along with SST gang members, Pedro Cabanillas and Isidoro Mata;  and on April 23, 2006, appellant was arrested with them, as well as SST member Armando Colin (Incident 17).

(4) Associates with gang members on a regular basis

During a probation search of appellant's house on March 15, 2006, letters were found from SST member Efrain Gonzalez (Incident 23);  the night appellant was shot in the head, Efrain Gonzalez transported appellant to the hospital (Incident 32);  and on July 26, 2005, appellant was contacted with SST members Reynaldo Gonzalez and Isidoro Mata, and SST associate Jair Garcia (Incident 48).

(5) Identified by reliable source

A group supervisor at juvenile hall indicated that on May 2, 2006, appellant was in a gang-related fight with Derek M. (Incident 14);  and on February 14, 2006, when SST member Aurelio Tejeda was arrested for possession of a shotgun, Tejeda indicated to Officer Gumm that appellant was an SST member (Incident 26).

(6) Identified by untested source

On February 2, 2006, Sharpe, pursuant to his work as a gang officer, contacted Pedro Cabanillas, who identified appellant and others as SST gang members.

(7) Wears or displays gang evidence

Appellant's possession of the blue marijuana smoking pipe, etched with “X3” and “SST” (Incident 51).

(8) Frequents gang areas

No incidents discussed.

(9) Uses gang words, phrases, or terms

Appellant turned in to Officer Gumm a box of ammunition on which was written “187 chaps” (Incident 19).

(10) Gang tattoos, scars, marks, etc.

On December 13, 2005, it was observed that appellant had three dots tattooed on his left wrist (Incident 33).

Based on the forgoing incidents and evidence, as well as photographs depicting appellant with other SST members, Officer Sharpe opined that appellant was a Sureño gang member belonging to the SST set.

Officer Sharpe further testified that the specific incidents in this case exemplified SST's primary activities, which included the crimes of murder, attempted murder, shooting at an occupied residence, assault with a firearm, and shooting from a vehicle.

When the prosecutor asked Officer Sharpe to testify regarding other examples of the gang's primary activities, defense counsel offered to stipulate that SST had as its primary activities the commission of enumerated felonies.   When the prosecutor declined to enter the stipulation, defense counsel objected to the introduction of further evidence of primary activities under Evidence Code section 352, and the objection was overruled.   Officer Sharpe then went on to list the following crimes by SST members as examples of the gang's primary activities of murder, firearm possession, drive-by shootings, and assaults with firearms: 4

— Raul Peña and Sergio Feliz pled guilty in connection with the shooting death of Norteño gang member Ruben Neuman on July 10, 2004.

— On January 6, 2005, Armando Colin was arrested in possession of a firearm.

— Edgar Murillo and Roberto Cervantes were arrested for being in possession of a loaded firearm based on two firearms found in their vehicle.

— On June 15, 2004, Juan Carlos Lopez, while in the company of Armando Neri, was arrested for possession of a short-barreled shotgun and for carrying a concealed firearm with an active gang member.   Neri was in possession of a 12–gauge sawed-off shotgun.

— On June 18, 2004, Raul Peña and José Ochoa were found in possession of a handgun.

—On December 14, 2005, Octavio Alvarez, Reynaldo Alvarez, and Victor Espinal were in a car with an SKS assault rifle.

— On February 14, 2006, a shotgun was recovered from Aurelio Tejeda.

—On November 26, 2005, the house of Seraphin Orejel was shot at;  the gun used was the one appellant had in his possession on December 24, 2005.

—The drive-by shooting on Riverside Drive, in which appellant identified Andres Hernandez as the shooter, himself as the driver, and Isidoro Mata as the left rear seat passenger.

— On June 8, 2005, the shooting death of Uriel Zapien by Homar Garcia and Reynaldo Garcia, who came back to show appellant the guns and to ask him to get rid of spent ammunition.

— March 20, 2006, the shooting on Vernon street in which appellant identified Armando Neri as the shooter.

After this testimony, the trial court called a break and, outside the presence of the jury, asked the prosecutor how many more incidents he intended to go over.   The prosecutor indicated that he was moving on to the subject of predicate offenses committed by the gang.   The court observed:  “I want you to try to streamline that a little bit.   I mean, that last series just was mind boggling.”   Defense counsel reminded the court that he had raised an Evidence Code section 352 objection and had “offered to stipulate to it, the entirety of what was said.”   The court responded:  “I'm assuming you're still objecting on that ground, and the more we get, the closer I'm coming on granting that.”   The prosecutor pointed out that there was case authority holding that “if there's simply a recitation of the crimes, without detail, there is insufficient evidence” of a gang's primary activities.   The court responded:  “I'm not telling you how you have to do it, I'm just saying we need to streamline it.”

When Officer Sharpe's testimony resumed, he identified certified records of juvenile adjudications or convictions of predicate offenses committed by SST members, which were admitted into evidence without objection, including appellant's adjudications of second degree burglary and automobile theft, Isidoro Mata's adjudications of burglary and receiving a stolen vehicle.   Other conviction records included those of José Manuel Garcia for possession of a concealed weapon, Sergio Feliz for assaults with a deadly weapon, and Raul Peña for assault with a deadly weapon.

Presented with a series of hypotheticals based on the incidents in this case, Officer Sharpe opined that the crimes were committed for the benefit of appellant's gang, SST, at the direction of the gang, and in association with members of the gang.

The Defense

Forensic toxicologist Jeffrey Zehnder reviewed appellant's medical records from the night of June 10, 2006.   When appellant's blood was drawn at the hospital around 8:50 p.m., his blood alcohol concentration measured at .04 percent.   Zehnder opined that appellant's blood alcohol concentration at 6:23 p.m. would have been around .077 or .08 percent.   At this level, a person's ability to operate a car or similar machinery would likely be impaired by errors in judgment and lowered inhibition.

As further evidence of intoxication, the defense played a silent video of appellant in a police interview room following his arrest.   The video shows appellant sitting alone for period of time at a table, frequently resting his head on the table.   At one point, Officer Gonzales enters the room.   Appellant stands up and Officer Gonzales appears to conduct some type of forensic test on appellant's hands, which are restrained behind his back.   Two female officers also become visible in the lower part of the screen and they appear to assist Officer Gonzales at different points during the video.

While his hands are being tested, appellant starts leaning over and saying something.   Officer Gonzales responds by placing a wastebasket on the table in front of appellant.   Appellant leans over the wastebasket several times, appearing to throw up.   Eventually, Officer Gonzales helps appellant sit back in the chair and one of the female officers puts the wastebasket on the ground next to appellant.   Appellant continues to lean his head over the wastebasket, while Officer Gonzales completes the testing of appellant's hands.   Appellant then rests his head back on the table and the officers leave the room.

After the officers leave, appellant leans over the wastebasket, appearing to throw up again.   After he sits back up, appellant starts falling sideways and falls off his chair onto the floor.   Officer Gonzales comes back into the interview room and helps appellant back up onto his chair.   Appellant puts his head on the table, while Officer Gonzales appears to make adjustments to the restraints on appellant's hands.

After Officer Gonzales leaves the room, appellant leans back over the wastebasket, appearing to throw up again.   Appellant then falls off his chair and onto the floor a second time.   Officer Gonzales and a female officer enter the room.   Officer Gonzales helps appellant sit up on the floor and lean against the chair.   The officers then leave.   While he is sitting on the ground, appellant uses his legs to drag the wastebasket towards him.   He then lies back down on the floor with the wastebasket between his legs.   Appellant remains lying on the floor until two male paramedics arrive, help appellant up, and escort him from the room.

Dr. Matthew Soulier testified as an expert in child psychiatry.   Dr. Soulier was a child psychiatrist on the staff of UC Davis Medical Center.   He also had experience working in jails and evaluating juveniles.   Dr. Soulier did not meet or evaluate appellant but testified generally about age and mental health issues pertinent to the defense case.

Dr. Soulier's testimony first addressed the question of how adolescents and teenagers think and behave differently than adults.   In this regard, Dr. Soulier testified that teenagers tend to be more impulsive, are more likely to engage in risky behavior, and, in making decisions, tend to worry a lot about what their peers are going to think about them.   Teenagers also think more in terms of short-term consequences and rewards, not “how is this going to affect my life for a couple years down the road.”   With respect to alcohol use, Dr. Soulier testified that alcohol affects teenagers like it affects adults in that it lowers inhibitions and “makes you maybe engage in some behavior you later regret.”

Dr. Soulier also discussed the criteria for posttraumatic stress disorder (PTSD) contained in The Diagnostic and Statistical Manual, Fourth Edition (DSM–IV).   The first criterion is that a person has to experience a traumatic event and continue to re-experience it.   In this regard, it is common for someone suffering from PTSD to have nightmares about the traumatic event.   The second criterion is the avoidance of stimuli that remind the person of the event.   The third criterion is hyperarousal.   Dr. Soulier used the example of Vietnam veterans:  “They're more watchful, they're more jumpy, they startle easily.   Sometimes they can be much more aggressive.   If they perceive, again, danger coming at them because their system, again, it's just kind of—the thermostat's just kind of turned up a little bit too high, and it really impairs their lives.”

Dr. Soulier agreed that a 14–year–old's ordinary difficulty in making a rational decision would be “further aggravated” if the minor were mildly intoxicated and suffered from untreated PTSD and a related sleep disorder.

When asked whether escalating depression often precedes auditory hallucinations, Dr. Soulier testified:  “Very often hallucinations are associated with depression.   If someone gets worse and feeling worse, very often the frequency and intensity of voices, of hearing these things goes up.”

Dr. Soulier defined “malingering” as “a conscious choice to lie about something to gain something.”   Based on his experience with jail inmates, Dr. Soulier testified that he would be more likely to suspect a jail inmate of malingering about symptoms of mental illness if the inmate were facing a severe consequence like a life sentence than if the inmate were facing a small consequence.

Dr. Soulier also described the medications that later witnesses testified were prescribed to appellant.   Risperdal is a commonly prescribed medication for hallucinations.   It is not a medication a person can get high on and it has unpleasant side effects.   Trazodone is a mild antidepressant used as a sleep agent for insomnia.   Prozac is an antidepressant in the class of selective serotonin reuptake inhibitors.

Risperdal becomes effective relatively quickly and most people feel an immediate effect in taking the medication.   Dr. Soulier testified that, if a person were to stop taking Risperdal suddenly, it “should immediately stop working․  So if it was diminishing and dampening hearing voices that weren't present in reality, those voices should come back fairly quickly.”   Prozac, in contrast, takes time to build up in the system with people reporting benefit after four to six weeks.   If a person stops taking it, it is slow to taper out of the person's system.

Dr. Soulier opined that, if he were treating a 14–year–old patient in juvenile hall with Prozac and Risperdal, and that patient were released, he would want the involvement of the patient's parent or guardian to make sure the patient was able to continue the medication.   He would also want to follow up with the patient to see if the medications were working at targeting the symptoms and to check to see if the patient was experiencing any intolerable side effects.

Dr. Soulier confirmed that a marriage and family therapist can be qualified to diagnose mental illness.   Due to the shortage of child psychiatrists, psychiatrists necessarily rely heavily on the therapists that work directly with children.   Dr. Soulier explained:  “No matter what setting I've found myself in, you work as a team and you collaborate with therapists, psychologists, and you work together to take care of this person or this family.”

Rachel Acosta, a family therapist, was lead clinician at juvenile hall in the spring of 2006.   She testified as an expert in therapy and counseling, and rendered opinions concerning appellant's psychological status around the time of the shootings.   Acosta testified that her everyday work at juvenile hall consisted primarily of one-on-one consultations with minors incarcerated at the hall.   As part of her work, she formulated opinions as to minors' psychological conditions and made recommendations for medications to psychiatrist, Dr. Charles Edwards.   The diagnoses Acosta made were based on her general experience and on criteria from the DSM–I

Acosta first met appellant on May 9, 2006.   Their meeting lasted approximately one hour.   As a result of the meeting, Acosta was of the opinion that appellant suffered from PTSD and depression.   Her opinion was based on appellant's reports of flashbacks and anxiety dreams revolving around the recent traumatic event of being shot in the head on December 23, 2005.   Appellant also disclosed a history of being homeless as a child, living in a car, and not having enough food to eat.

Acosta concluded appellant was depressed because he expressed the feeling that he should have died in the shooting and sadness that he had survived.   Appellant also expressed that he felt bad about having done bad things in the past.

Acosta recommended that, after appellant's release, which was originally scheduled for June 14, 2010, he participate in counseling through the Juvenile Justice Mental Health outpatient program.   When she talked to appellant about receiving such treatment, he seemed very motivated to be part of that.

After meeting appellant on May 9, 2006, Acosta recommended that he see Dr. Edwards the same day.   Dr. Edwards prescribed appellant Prozac for depression and Trazodone for insomnia.

On May 23, 2006, Acosta saw appellant again at a two-week patient review conducted by Dr. Edwards.   At that time, appellant reported that he was hearing voices.   Acosta observed that appellant's demeanor was “very troubled.”   Acosta encouraged appellant to continue treatment with outpatient services.   Dr. Edwards prescribed appellant Risperdal, an antipsychotic.

After the May 23 meeting, Acosta expected to see appellant again in two weeks, but he was discharged early around June 4, 2006, due to overcrowding and because appellant was there on a relatively minor charge.   On June 6, 2006, appellant called Acosta.   He told her he wanted to get back on his medications but did not have a prescription.   The next day, Acosta called appellant's doctor and arranged to have him call the prescription in to a pharmacy.   Acosta then tried unsuccessfully to contact appellant's father and sister as responsible adults to assist appellant in obtaining his medication.

Dr. Charles Edwards, appellant's psychiatrist at juvenile hall, testified that he met appellant for the first time on May 9, 2006, as a result of Acosta's request for a consultation.   Dr. Edwards explained:  “Usually the people that I see in juvenile hall have been screened by mental health professionals, and when they feel there is a reason for concern and would like a psychiatric consultation, they ask me to see the person.”   At the meeting, Dr. Edwards prescribed an antidepressant medication for appellant.

Dr. Edwards met with appellant again two weeks later.   Acosta told Dr. Edwards that appellant had reported hearing voices.   Dr. Edwards inquired about this and appellant confirmed that he had been hearing voices.   Dr. Edwards prescribed Risperdal to attempt to help those symptoms.   In accordance with his usual practice, Dr. Edwards prescribed a low dose of the medication.

Dr. Edwards explained that when he writes a prescription, he gives it to a member of the juvenile hall staff to obtain the medication and administer it to the minor.   After the minor leaves juvenile hall, staff will arrange to call the prescription into a pharmacy so that a member of the minor's family can go and obtain the medication.   After a minor is released, the usual plan is for the minor to see Dr. Edwards or one of the other psychiatrists in the Juvenile Justice Clinic, so that the doctor can follow up on the minor's response to the medication.

After Dr. Edwards met with appellant on May 23, 2006, he had expected to check his progress in two weeks.   Appellant, however, was released before Dr. Edwards had the opportunity to check on him.

On cross-examination, Dr. Edwards acknowledged that he did not “attempt to make a complete presentation and a definitive diagnosis” of appellant's mental conditions, explaining that, “[i]f I were to do that with each of our cases, I wouldn't have any chance of seeing very many [patients].”   Dr. Edwards explained that his focus was on trying to help appellant with the symptoms appellant reported.

On redirect examination, Dr. Edwards confirmed that someone with major depression can suffer from hallucinations.   He further testified:  “I wouldn't purport that I had made a definitive diagnosis of [appellant].   But I certainly believed he was depressed, and I believed he did have hallucinations.   And those are symptoms that I felt he was distressed by, and I felt I would try to help him with those medicines.”

The defense also called Officer Gumm to testify concerning the arrangement he had with appellant for providing information.   In this regard, defense counsel asked Officer Gumm:  “During the time that you used [appellant] as an informant, who oversaw that, it anybody?”   The detective responded:  “[Appellant] was never used as an informant.”   After defense counsel restated the question, Detective Gumm indicated that no one oversaw appellant.   Detective Gumm further testified that he did not consider appellant's role to be one of an informant because appellant did not fit under the police department's written policy concerning informants.

During cross-examination, Detective Gumm elaborated on why he did not view appellant as an informant.   On redirect examination, Detective Gunn acknowledged that in his report concerning his meeting with appellant on March 28, 2006, he referred to appellant as “CI” and that “CI” generally stood for “confidential informant.”   The detective explained that he used the abbreviation “CI” so that he would not have to put appellant's name in the report.

The defense also called two probation officers to testify regarding their interviews of appellant.   Probation officer Victoria Gibson testified that she interviewed appellant on January 25, 2006.   Appellant admitted he was a member of a gang.   However, he expressed a desire to stop participating in the gang lifestyle.   Appellant told Gibson:  “When I go home, I already told my dad that when I get out I'm going to throw out my blue clothes.   I don't want to get shot anymore.”   Appellant explained that when he was shot, he was in the hospital for four days and he was afraid he was not going to survive.   He did not want to risk that happening again.

Probation officer Maria Duran interviewed appellant in juvenile hall on April 24, 2006.   He was there because he and several companions had allegedly stolen stereos out of cars in parking lots.   Appellant admitted that he had been smoking marijuana approximately three times a week.   Duran recommended that appellant be referred to drug court, which gave minors the opportunity to participate in drug or alcohol programs.

Rebuttal

Officer Gonzales testified regarding the events depicted in the defense video of appellant in the interview room after his arrest.   Officer Gonzales testified that during the time he was conducting the test on appellant's hands, appellant was compliant with the instructions and he had no trouble understanding appellant.

Officer Gonzales explained the ambulance crew shown on the video was called because appellant had fallen to the ground a couple of times and they wanted to make sure he was okay.   Officer Gonzales confirmed that appellant was taken to the hospital after the ambulance crew arrived.   Officer Gonzales testified that nothing that occurred in the interview room altered his opinion that appellant was not intoxicated at the time of his arrest.

On cross-examination, Officer Gonzales confirmed that, when appellant was in the interview room, appellant's demeanor was not always consistent.   The officer agreed “[t]here were times when [appellant] was more lucid or appeared to be more lucid, more responsive than others.”   Officer Gonzales also acknowledged there were times when appellant vomited and appeared to be fainting.   Officer Gonzales confirmed that appellant was nonresponsive after the second fall, both when the officer asked appellant if he was okay and when he asked appellant if he wanted help getting up.

After appellant was taken to the hospital, he was seen at 8:40 p.m. by physician's assistant Richard Kelly.   Kelly learned from appellant that he had fainted and vomited.   When Kelly examined appellant, he did not find anything abnormal or unhealthy.   Appellant did not smell of alcohol.   Kelly had appellant take both blood and urine tests.   Appellant's blood alcohol content was determined to be .04 percent.

Kelly testified that his primary diagnosis for appellant was syncope (i.e., fainting) and his secondary diagnosis was “alcohol use.”   He deliberately chose the term “use” instead of “intoxication.”   Kelly explained:  “I don't believe he was under the effects of alcohol when I performed my examination.”   Kelly opined that the origin of appellant's fainting was “most likely psychogenic, from being questioned by police officers.”

Kelly viewed a portion of the defense video showing appellant falling off his chair onto the floor.   It did not appear to Kelly that appellant lost complete consciousness.   Kelly explained:  “[Appellant] came down in what appeared to be more of a controlled manner and ․ he prevented his head from striking the ground.   Certainly he did not fall with very much force.   He seemed to readjust himself, and then he just laid his head down.”

On cross-examination, Kelly acknowledged the existence of a condition known as “near syncope,” where a person almost faints and experiences dizziness and loss of coordination.   Kelly agreed that someone experiencing near syncope “could lose balance and ․ feel queasy, and then ․ still have a controlled, or a slow fall to the ground.”

Mitzi Whitworth, the charge nurse for juvenile hall, testified that a “head-to-toe physical assessment is completed on each juvenile” within 96 hours of the juvenile's initial arrival into juvenile hall.   After appellant was detained in juvenile hall on December 28, 2005, he was assessed as having suffered gunshot wounds to the right side of his face.   When asked a series of questions regarding his mental health, including whether he was suicidal, hallucinating, exhibiting anxiety or panic symptoms, appellant answered all the questions in the negative.   Similarly, when appellant was reassessed following his detention on April 23, 2006, no psychiatric problems were indicated in his assessment.   Appellant also answered in the negative when asked whether, in the past six months, he had experienced trouble concentrating, sleeping, nightmares, or was more depression than usual.   When appellant was reassessed on June 14, 2006, appellant indicated that there had been no significant changes in his health since his assessment the previous month.

Finally, the prosecution presented the expert testimony of psychologist Dr. Jocelyn Roland.   Dr. Roland noted that there was “very little documentation” concerning appellant's mental health treatment in juvenile hall on May 9 and May 23, 2006.   Dr. Roland further testified that, to determine whether a patient is lying to the therapist, it is “frequently useful to get outside information to cross-check against what the patient has said.”   Moreover, no definitive diagnosis should be given to a patient unless the patient meets the exact criteria set forth in the DSM–I

Dr. Roland explained the fact a person is depressed will not necessarily prevent the person from making “judgments and assessments” and engaging in “goal-directed behavior.”   Dr. Roland then discussed specific actions by appellant that, in her opinion, showed that he had engaged in reasoning, goal-directed behavior and understood the potential consequences of his actions.   One example she gave was appellant's report to Officer Gumm about an incident where some people showed up at his house and wanted to discard bullets, but he did not want the bullets to be placed in a trash can in his house and directed them to discard the bullets somewhere else.   Dr. Roland explained:  “[W]hat I would assess is that the individual understood there was some consequence for having those bullets in his trash can.”

After being presented with a hypothetical scenario based on the facts of this case, Dr. Roland opined that appellant engaged in deliberate, goal-directed behavior rather than an impulsive act.   Dr. Roland also viewed a video of a conversation between appellant and his brother Pedro Cabanillas that was played for the jury.   The video was taken in jail the night of their arrest, after appellant was brought back from the hospital.   Dr. Roland opined that the conversation reflected signs of judgment and decision making.   She explained:  “I think that overall what's reflected in that conversation is the recognition that there are penalties, or potential penalties for the, the crime, that there's a weighing out of, you know, pleading out versus taking time.”

Finally, Dr. Roland discussed the criteria for PTSD and opined that appellant's conduct did not fit all the criteria for the condition.   Dr. Roland explained that one of the criteria is “a persistent avoidance of stimuli or other associated things related to the [traumatic] event.”   Thus, a person who suffered PTSD as a result of being shot in the head would be expected to “avoid anything associated with a firearm, being shot, the sound of a firearm going off, anything that could recall or bring up memories, feelings, associated with that traumatizing event.”   She would not expect a person who had been shot in the face during a gang incident and suffered from PTSD as a result to put himself back in a similar situation.

Surrebuttal

Acosta, appellant's therapist in juvenile hall, testified that she initially found it difficult to get information out of appellant about the symptoms he was experiencing.   She attempted to put appellant at ease during their first meeting and she believed she succeeded and that appellant had started to trust her.   Acosta agreed that, during her second meeting with appellant and Dr. Edwards, they similarly tried to put appellant at ease and that “it wasn't a situation where somebody's just rattling off a list of questions, preprinted questions on a questionnaire, and checking boxes yes or no.”

The parties stipulated that on June 15, 2006, Dr. Edwards met with appellant for 30 minutes and wrote a note in appellant's file stating:  “Returns to juvenile hall with serious charges.   Depression persists.   As well as auditory hallucinations.   Will resume previous medication schedule.”

DISCUSSION

I. Exclusion of Audio Portion of Defense Video

Appellant contends the trial court erred in excluding the audio portion of the defense video showing appellant in the interview room after his arrest.   The court's ruling was based, in part, on the ground the video contained hearsay statements which were not shown to be separable from the nonhearsay sounds accompanying appellant's vomiting and falling, which appellant had sought to introduce as evidence of his intoxication at the time of the crimes.   Assuming without deciding that the court's ruling was erroneous, we conclude that the exclusion of the audio portion of the video was not prejudicial to appellant's defense.

It is well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error has caused a miscarriage of justice.  (Evid.Code, §§ 353, subd. (b), 354;  (People v. Richardson (2008) 43 Cal.4th 959, 1001.)   Appellant is incorrect that Chapman 5 is the controlling test.   When reviewing a case for the erroneous admission or exclusion of evidence, we find reversible error only when, after examining the entire case, including the evidence, we conclude that it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”  (People v. Watson (1956) 46 Cal.2d 818, 836;  Richardson, supra, at p. 1001.)

Appellant contends that the excluded audio portion “was essential for the defense to demonstrate to the jury in an unforgettable way the adverse effects on appellant of the alcohol he had consumed” and “to counteract the prosecution witnesses' testimony that appellant did not appear intoxicated[.]”  In other words, appellant appears to contend that the video would have had a stronger visceral impact on the jury if the jury had been able to hear, in appellant's words, “the sounds of appellant crying, retching, gagging, spitting, vomiting, and falling on the floor with a loud thump[,]” as well as statements by appellant to officers that he was about to faint and requesting something to throw up in, which appellant contends were subject to the state-of-mind exception to the hearsay rule.   Thus, appellant argues:  “Had the jurors heard the sounds and statements on the video recording, it is likely they would have concluded that appellant was substantially intoxicated and his judgment significantly impaired, not only at that time but at the earlier time when he committed the shootings.”

Having carefully reviewed the video of appellant in the interview room (both with and without sound), as well as the transcript of the excluded audio portion of the video, we conclude there is no reasonable probability that appellant would have received a more favorable result had the trial court admitted the audio portion of the video.   The sounds appellant makes in the video are not as dramatic as he suggests and add little to the visual impact of the video, which clearly shows appellant leaning over the wastebasket to throw up multiple times and falling onto the ground twice.   Indeed, a convincing argument could be made that including the audio portion would have diluted the visual impact of the video to appellant's detriment.   Several times during the video, the officers can be plainly heard making negative and sarcastic statements about appellant, including questioning whether appellant is “faking it.” 6  On this record, we are unconvinced by appellant's argument that he was prejudiced by the trial court's exclusion of the audio portion of the defense video.

II. Admission of Gang Evidence

Appellant acknowledges that evidence of gang-related crimes committed by him and members of his gang was relevant.   His contention is that the amount of evidence admitted was excessive and an abuse of the trial court's discretion under Evidence Code section 352.

We review any ruling by a trial court on the admissibility of evidence for an abuse of discretion.  (People v. Alvarez (1996) 14 Cal.4th 155, 201.)   This standard is applicable both to a trial court's determination of the relevance of evidence as well as its determination under Evidence Code section 352 whether the evidence's probative value is substantially outweighed by its prejudicial effect.  (See, e.g., People v. DeJesus (1995) 38 Cal.App.4th 1, 32–33.)   The abuse of discretion standard applies equally when the issue is the admission of gang evidence.  (People v. Champion (1995) 9 Cal.4th 879, 922 (Champion;  People v. Sandoval (1992) 4 Cal.4th 155, 175.)

Evidence Code section 352 states that the “court in its discretion may exclude evidence if 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.”   The court's discretion is abused only where there is a clear showing it exceeded the bounds of reason.  (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin ) [admission of gang evidence over Evidence Code section 352 objection not disturbed on appeal unless decision exceeds bounds of reason].)  “[A]dmissible evidence often carries with it a certain amount of prejudice.”  (Olguin, at p. 1369.)

Gang evidence was necessarily admissible to prove the essential elements of the charged offense that appellant actively participated in the SST set of the Sureño gang, and of the enhancement allegations that his other crimes were committed for the benefit of the gang. (§ 186.22, subds.(a), (b)(1);  see People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048;  People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)   The enhancement requires a felony to be “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)   The offense requires the defendant to know that the gang engages in a pattern of criminal gang activity, and to willfully promote, further or assist a felony committed by gang members. (§ 186.22, subd. (a).)

While acknowledging the relevancy of evidence of prior gang-related crimes committed by him and members of his gang to prove the gang offense, gang enhancements, and his motive in committing the offenses, appellant contends that “[i]t was extremely prejudicial and inflammatory, and absolutely unnecessary, to tell the jury about every incident in which appellant or another member of his gang committed a crime.”   Therefore, appellant contends, “the court abused its discretion by failing to impose reasonable limits on the prosecution's evidence.”

We find appellant's contention unpersuasive for several reasons.   In addition to his failure to explain what would have constituted a reasonable limit in this case, the record simply contradicts appellant's suggestion that the trial court failed to impose any limits and permitted the prosecution to admit “every incident in which appellant or another member of his gang had committed a crime.”  (Italics added.)

First, with respect to Officer Gumm's testimony, appellant did not object on Evidence Code section 352 grounds to the portion of his testimony describing criminal incidents reported to him by appellant.7  As a result, appellant has waived any claim that such testimony contravened Evidence Code section 352 because it was excessive.   As a general rule, reviewing courts will not consider a challenge to the admissibility of evidence unless a timely objection is made at trial on the same ground as is advanced on appeal.  (Champion, supra, 9 Cal.4th at p. 918;  People v. Raley (1992) 2 Cal.4th 870, 892.)   The waiver rule applies even if the admission of evidence affected a fundamental constitutional right.  (United States v. Olano (1993) 507 U.S. 725, 731;  People v. Saunders (1993) 5 Cal.4th 580, 590.)

Turning to the prosecution's gang expert, appellant refers to the fact that the defense objected to the prosecution's proposed introduction of 53 incidents to support Officer Sharpe's opinion regarding gang membership.   But appellant fails to mention that the parties' subsequent agreement to stipulate that Isidoro Mata and Pedro Cabanillas were SST gang members reduced the number of incidents being offered from 53 to 14 incidents.   In other words, after the parties entered the agreement, the prosecution sought to introduce approximately one-third of the incidents it had originally offered.   The court thereafter conducted a thorough hearing and ruled all but one of the incidents were relevant and admissible to support Officer Sharpe's opinion that appellant was an SST gang member.   Appellant has not shown that, in admitting these incidents, the court exceeded the bounds of reason or abused its discretion.   (Olguin, supra, 31 Cal.App.4th at p. 1369.)

The same is true of Officer Sharpe's testimony regarding examples of crimes committed by SST members which were demonstrative of the gang's primary activities.   The evidence, if somewhat tedious, was undisputedly relevant and not unduly prejudicial.   As respondent accurately points out, appellant “does not identify a particular item or items of gang evidence that was particularly inflammatory” but instead appears to be suggesting that “the trial court should have admitted only the minimum evidence that would permit a reasonable jury to convict him of the offense or to find the gang enhancement allegation to be true.”   However, as respondent observes, “nothing in Evidence Code section 352 or case law supports appellant's presumed position that evidence should be excluded whenever it exceeds what would be necessary to satisfy the substantial evidence standard.”

Even were we to assume, arguendo, that it was error to admit all of the gang evidence, we would find any error harmless.   The applicable standard of prejudice is that articulated in Watson, supra, 46 Cal.2d at p. 836;  that is, whether it is reasonably probable a more favorable result would have been obtained in the absence of the claimed errors.  (Champion, supra, 9 Cal.4th at pp. 922–923.)   Appellant concedes that some gang evidence had to be admitted;  he was positively identified as the shooter and person who pointed a firearm at numerous helpless victims;  and the jury was instructed with Judicial Council of California Criminal Jury Instructions (2006–2007), CALCRIM No. 1403 [limited purpose of evidence of gang activity].   Moreover, one of the themes advanced by the defense was that appellant was under additional mental strain at the time of the crimes as a result of the fact that he was in fact a member of a violent gang and, at the same time, was allegedly acting as a confidential informant, secretly providing information about his gang to Officer Gumm. In light of these facts, it is not reasonably probable a result more favorable to appellant would have been obtained if less gang evidence had been admitted.

III. Instructional Error

Appellant was convicted of second degree murder.   The jury was instructed on three possible theories for murder:  (1) murder with malice aforethought (CALCRIM No. 520), (2) murder by shooting a firearm from a motor vehicle (CALCRIM No. 521), and (3) second degree felony murder based on the charged felony of shooting at an inhabited house (CALCRIM No. 541A).

The parties agree that under People v. Chun (2009) 45 Cal.4th 1172, 1178, 1200–1201 (Chun ), which was decided after the trial in this case, the court erred in instructing the jury on second degree murder based on an assaultive felony (shooting at an inhabited house) as such felonies merge with the homicide.   The parties, however, disagree as to whether the error was harmless.   We conclude the instructional error in this case was harmless.   As we explain, our conclusion is supported by both the Chun decision and People v. Hach (2009) 176 Cal.App.4th 1450 (Hach ).8

In Chun, the defendant was one of four persons in a Honda that was stopped at a traffic light.  (Chun, supra, 45 Cal.4th at p. 1179.)   A person or persons in the Honda fired three different guns toward a Mitsubishi that was also stopped at the light.  (Ibid.) A passenger in the Mitsubishi was killed, and two other persons were wounded.  (Ibid.) The defendant was charged with “murder, with driveby and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism.”  (Ibid.)

At trial, the prosecution presented evidence that the defendant had admitted to the police that he was involved in the shooting.  (Chun, supra, 45 Cal.4th at p. 1179.)   The defendant told police that he had fired a gun, but he also claimed that he had not pointed the gun at anyone, and that he had wanted only to scare the Mitsubishi passengers.  (Ibid.) The defendant testified and denied any involvement in the shootings.  (Ibid.) The trial court instructed the jury on first degree murder, and also instructed the jury on two different theories of second degree murder.  (Ibid.) Specifically, the court instructed the jury on second degree murder based on shooting at an occupied motor vehicle (§ 246), either directly, or as an aider and abettor, and also instructed the jury on implied malice as a theory of second degree murder.   (Chun, supra, 45 Cal.4th at pp. 1202–1203.) 9

The jury found the defendant guilty of second degree murder and also found that the defendant was an active participant in a criminal street gang.   (Chun, supra, 45 Cal.4th at pp. 1179–1180.)   The jury found that a principal intentionally used a firearm, and that the shooting was committed for the benefit of a criminal street gang.  (Ibid.) The jury acquitted the defendant of both counts of attempted murder, shooting from a vehicle, and shooting at an occupied motor vehicle, and found the personal use of a firearm allegation not true.  (Id. at p. 1180.)

On appeal, the California Supreme Court concluded that the trial court had erred in instructing the jury on felony murder as a theory of second degree murder.  (Chun, supra, 45 Cal.4th at p. 1201.)   After reviewing prior case law in this area, the court held, “When the underlying felony is assaultive in nature, such as a violation of section 246 or section 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction.”  (Id. at p. 1200.)

In addressing whether the trial court's instructional error required reversal, the Supreme Court noted that the trial court had adequately instructed the jury on an alternative and legally valid theory of second degree murder, namely, second degree murder based on conscious-disregard-for-life malice.  (Chun, supra, 45 Cal.4th at pp. 1202–1203.)   The court stated, “In this situation, to find the error harmless, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory.”  (Id. at p. 1203.)   In determining whether the jury in that case had based its verdict on a valid theory, the Chun court stated that it would apply the harmless error analysis that Justice Scalia proposed in his concurring opinion in California v. Roy (1996) 519 U.S. 2. (Chun, supra, 45 Cal.4th at pp.   1204–1205 [“Without holding that [Justice Scalia's approach] is the only way to find error harmless, we think this test works well here, and we will use it”].)   The Chun court summarized that test as follows:  “If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless.”  (Id. at p. 1205.)

Applying this test to the facts in Chun, the Supreme Court stated:

“[A]ny juror who relied on the felony-murder rule necessarily found that defendant willfully shot at an occupied vehicle.[ 10]  The undisputed evidence showed that the vehicle shot at was occupied by not one but three persons.   The three were hit by multiple gunshots fired at close range from three different firearms.   No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice.   In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice.   The error in instructing the jury on felony murder was, by itself, harmless beyond a reasonable doubt.”  (Chun, supra, 45 Cal.4th at p. 1205.)

Applying Chun, the Hach court concluded that the trial court had committed harmless error in instructing the jury on second degree felony murder.  (Hach, supra, 176 Cal.App.4th at p. 1457.)   In Hach, the “defendant found his common law wife alone with her new lover in a car, ․ fired a single shot[,] and killed [the lover].”  (Id. at p. 1452.)   The trial court instructed the jury on alternate theories of second degree murder, namely, malice aforethought, and felony murder with shooting at an occupied vehicle as the predicate felony.  (Ibid.) The jury convicted the defendant of both second degree murder (§ 187, subd. (a)) and shooting at an occupied vehicle (§ 246).   The jury also found that the defendant personally discharged a firearm, causing death. (§ 12022.53, subd. (d).)

In concluding that the trial court's error in instructing on felony murder was harmless, the Hach court reasoned:

“We find the harmless error analysis of Chun applicable.   To find defendant guilty of second degree felony murder, a juror must have found he willfully shot at an occupied vehicle.   Indeed, we know the jury so found because, unlike in Chun, the jury convicted defendant of violating section 246.   The factual distinctions from Chun are not significant.   Defendant was only 10 feet away from the car and knew there were two people in it.   He fired an SKS rifle directly into the car.   As in Chun the jury must have found defendant committed an act that is dangerous to life, knew of the danger, and acted with conscious disregard for life.   In other words, the jury found defendant acted with implied malice.   Accordingly, as in Chun, the error in instructing on second degree felony murder was harmless beyond a reasonable doubt.”  (Hach, supra, 176 Cal.App.4th at p. 1457.)

Chun's harmless error analysis is equally applicable to this case.   As appellant acknowledges, “any juror who relied on the felony-murder rule to convict appellant necessarily found that appellant willfully and maliciously shot a firearm at an occupied house[.]”  We know the jury so found because, as in Hach, appellant was convicted of the underlying offense of shooting at an inhabited house.   Appellant does not dispute that the evidence supports the conviction.   After driving at least three times by the house on Almaden Way, where a large birthday party was visibly in progress, the Honda stopped directly in front of the driveway and appellant fired three shots into the open garage where innocent partygoers were attempting to take cover.   One of the gunshots struck and killed Manuel Rayas.   In light of this evidence, no juror could have found that appellant “participated in this shooting ․ without also finding that [appellant] committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice.”  (Chun, supra, 45 Cal.4th at p. 1205.)   As in Hach, “The factual distinctions from Chun are not significant.”  (Hach, supra, 176 Cal.App.4th at p. 1457.)  “The error in instructing the jury on felony murder was, by itself, harmless beyond a reasonable doubt.”  (Chun, supra, 45 Cal.4th at p. 1205.)

Appellant's attempt to distinguish Chun and Hach is unpersuasive.   Noting that the malice requirement for shooting at an inhabited house is different than the malice required for murder, appellant contends the jury could have found that he willfully and maliciously shot at an inhabited house within the meaning of section 246, without necessarily finding that he did so with the conscious disregard for life required to support a finding of implied malice.11  In other words, the jury could have found the evidence supported the physical but not the mental component of implied malice.  (See Chun, supra, 45 Cal.4th at p. 1181.)   This is so, appellant argues, because he presented “substantial evidence of [his] psychiatric disorders, i.e., auditory hallucinations, insomnia, depression, and posttraumatic stress disorder, which the jury could have found negated implied malice[.]”

Appellant acknowledges that his conviction of the premeditated attempted murder of Andres Esparza indicates “the jury concluded that appellant's psychiatric condition did not negate intent to kill or premeditation with respect to that single, purposeful crime.”   Appellant contrasts his shooting of Esparza, “which seems to have been purposeful in light of the evidence that Esparza was a rival gang member who appellant and his associates found standing outside in front of his house,” with his shooting of non-gang member Rayas, arguing:

“[S]ince the fatal shooting of Rayas was so senseless and unmotivated by gang animosity, it is quite likely that the jury would have found that appellant did not harbor implied malice at the time he shot at Rayas, based on the evidence that appellant was suffering from an abnormal psychiatric condition.   In other words, the jury could have found that appellant's psychiatric condition negated malice as to one crime, but not as to another crime.   Thus it is not a foregone conclusion that the jury completely rejected appellant's psychiatric evidence.”

Appellant's argument is contradicted by the jury's true findings on the gang enhancements, which indicate that the jury did find the shooting of Rayas and the inhabited house to be motivated by gang considerations and rejected appellant's theory to the contrary based on evidence of his mental conditions.   The jury was specifically instructed that it could consider such evidence in determining whether appellant acted with the “[i]ntent to assist, further or promote criminal conduct by gang members for the gang-related felony enhancement alleged pursuant to Penal Code section 186.22.”  (CALCRIM No. 3428.)   By finding the gang enhancements to be true, the jury necessarily rejected appellant's theory that his mental conditions negated the requisite mental state and instead found that appellant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members” when he fired the shots at the house on Almaden Way and killed Rayas in the process. (§ 186.22, subd. (b)(1), italics added.)

Following the courts' reasoning in Chun and Hach, we conclude that, by finding appellant willfully and maliciously shot at the house on Almaden Way with the specific intent to promote, further, or assist criminal conduct by gang members, the jury found defendant committed an act that was dangerous to life, knew of the danger, and acted with conscious disregard for life.   In other words, the jury necessarily found that the evidence satisfied both the physical and mental components of implied malice.   Consequently, we find the error in instructing the jury on second degree murder was harmless beyond a reasonable doubt.

IV. Firearm and Gang Enhancements in Counts 9 and 10

Appellant contends, respondent concedes, and we agree that in sentencing him for his convictions of assault with a firearm in counts 9 and 10, the trial court erred in imposing both the four-year firearm enhancement under section 12022.5, subdivision (a), in addition to the 10–year gang enhancement under section 186.22, subdivision (b)(1)(C).

In People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez ), the California Supreme Court held that when a defendant is convicted of a violent felony within the meaning of section 667.5, subdivision (c)(8), based on the defendant's use of a firearm under section 12022.5, the court cannot impose both the section 12022.5 enhancement and the section 186.22, subdivision (b)(1)(C) enhancement.   Such multiple punishment violates section 1170.1, subdivision (f), which provides in relevant part that “[w]hen two or more enhancements may be imposed for ․ using ․ a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” (§ 1170.1, subd. (f);  Rodriguez, supra, 47 Cal.4th at pp. 508–509.)

Under Rodriguez, the trial court's imposition of both the four-year firearm enhancement and the 10–year gang enhancement violated section 1170.1, subdivision (f), and only the greatest of those enhancements may stand.   The proper remedy is to reverse the trial court's sentence and remand the matter to allow the court to restructure the sentence so as to not violate section 1170.1, subdivision (f).  (Rodriguez, supra, 47 Cal.4th at p. 509.)

V. Cruel and Unusual Punishment

Appellant contends that his aggregate sentence of 132 years to life constitutes cruel and unusual punishment in violation of both the California Constitution and the Eighth Amendment of the United States Constitution.12  He argues that his sentence is the functional equivalent of a sentence of life without parole (LWOP), and that such sentence is cruel and unusual as applied to any 14–year–old who commits serious but noncapital offenses.   He further argues that the sentence is cruel and unusual under the circumstances of this case, including not only the fact that he was 14 years old, but also the asserted facts that he had a minimal criminal history and a “compromised mental state due to his intoxication and inability to obtain his antipsychotic and other medications at the time of the crimes[.]”  We find no constitutional violation.

A. Background

Prior to sentencing, appellant filed a motion to reduce sentence, arguing the lengthy sentence he was facing “would amount to a de facto LWOP sentence” and urging the trial court to find such sentence “unconstitutional when imposed upon a defendant who was fourteen years old at the time of the offense and who was not convicted of first degree murder.”

At the sentencing hearing, a juvenile hall officer testified on appellant's behalf, describing appellant's positive conduct in juvenile hall during the preceding 10 months, including taking full advantage of educational and counseling services, not showing any gang affiliation but having a positive influence on other juveniles who looked up to him, and not engaging in any acts of violence or aggression.   The court also listened to victim impact statements by relatives of the murder victim.

After listening to extensive argument concerning the issues raised by appellant's motion to reduce sentence, the trial court proceeded to sentence appellant to the sentence he now challenges on appeal, thereby implicitly rejecting appellant's claim of cruel and unusual punishment.   The court sentenced appellant to a total determinate term of 17 years plus an indeterminate term of 115 years to life as follows.

As to the determinate term, the trial court designated count 9 (assault with a firearm on members of the Marquez family) as the principal term and imposed the mid-term of three years, and, as discussed above, added 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), plus four years for the firearm enhancement (§ 12022.5, subd. (a)), for a total of 17 years.   The court also imposed a concurrent term totaling 17 years for count 10 (assault with a firearm on Azalia Berumen).   Pursuant to section 654, the court stayed the terms for count 8 (discharging a firearm from a motor vehicle at Andres Esparza) and count 11 (participation in a criminal street gang).

As to the indeterminate term, the trial court imposed 20 years to life for count 1 (the second degree murder of Manuel Rayas), plus 25 years to life for the firearm discharge enhancement (§ 12022.53, subds.(d) & (e)).   The court stayed the term for count 4 (shooting at an inhabited house) pursuant to section 654.   For counts 5 and 6 (shooting at an inhabited house), the court imposed two consecutive terms of 15 years to life.   For count 7 (premeditated attempted murder of Andres Esparza), the court imposed a consecutive term of 15 years to life plus 25 years to life for the firearm discharge enhancement.

After imposing the above terms, the trial court stated:

“I'm imposing consecutive terms for each of the counts because each count represents a crime of great violence or a threat of violence.   An innocent human life was taken, another victim received a very serious injury that required hospitalization.

“As has been pointed out, certainly in the evidence at the trial, as well as the statements made today, numerous individuals received traumatic violations of their peace and well-being.   The peace and tranquility of two entire neighborhoods was shattered.   Much has been said about the defendant's age at the time of these crimes.   However, the viciousness of his actions, as well as the irreparable and incalculable harm that were caused by his actions, rule out any leniency in my mind.   This case vividly demonstrates the menace and danger that gangs such as the Sureños present to our communities.

“California Rule of Court 410 states some general objectives of sentencing.   They include punishing the defendant and preventing the defendant from committing new crimes by isolating him for periods of incarceration.

“Another stated objective is that of protecting society.   And deterring others from similar criminal conduct by demonstrating the consequences of that conduct.

“Mr. Cabanillas, it is likely that the sentences that I have handed down today will keep you in prison for the rest of your life.   All of our actions have consequences, and the consequences of your actions will be very long lasting, to yourself and to all of your victims.   I hope this sentence will not only keep you behind bars to prevent further crimes by you, but also will serve as a strong statement to other gang members of how these gang drive-by killings will be punished.   Senseless crimes like this have to stop.

“The total sentence I have handed down is 17 years, plus 115 years to life.   If you are ever paroled, you will be on parole for the rest of your life.”

B. State Constitutional Principles

Whether a punishment is cruel or unusual is a question of law, but we review the underlying facts in the light most favorable to the judgment.  (See People v. Em (2009) 171 Cal.App.4th 964, 971 (Em );  People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)   A punishment violates the California Constitution if, “although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch );  Em, supra, 171 Cal.App.4th at p. 972.)   In making this determination, we (1) examine the nature of the offense and the offender, (2) compare the punishment with that meted out for more serious crimes in California, and (3) compare the punishment with that given for the same offense in other jurisdictions.  (Lynch, supra, at pp. 425–427;  Em, supra, at p. 972;  People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)   A defendant must overcome a considerable burden to show the sentence is disproportionate to his or her level of culpability, and findings of disproportionality have occurred “ ‘with exquisite rarity in the case law.’ ”  (Em, supra, at p. 972.)

In support of his argument that an LWOP sentence or its equivalent is unconstitutional as applied generally to 14–year–olds who commit noncapital crimes, appellant focuses on the first and second prongs of the Lynch analysis.   Appellant acknowledges that the crimes for which he was convicted “were serious, violent, and had tragic and irreversible consequences [.]”  However, appellant observes that his crimes “fell short of the most serious crimes in the Penal Code ․ first degree murder with a special circumstance.”   He notes that, as a result of the statutory limitation provided in subdivision (b) of section 190.5, “a 14–year–old convicted of first degree murder, even with a special circumstance, may not be sentenced to life imprisonment without possibility of parole, and may only be sentenced to 25 years to life imprisonment” and may not receive an LWOP sentence.13  Appellant also relies on In re Nuñez (2009) 173 Cal.App.4th 709, 279–730 (Nuñez ), which found an LWOP sentence unconstitutional for a 14–year–old convicted of kidnapping for ransom, in part because the most a 14–year–old defendant could receive for premeditated murder with special circumstances would be 25 years to life.   Appellant contends that this court “should likewise conclude that a statutory regime that punishes a 14–year–old more harshly for multiple serious but noncapital crimes, than for first degree murder with or without a special circumstance, shocks the conscience and violates human dignity.”

We find appellant's arguments unpersuasive.   His situation is distinguishable from Nuñez, supra, 173 Cal.App.4th 709, in which the 14–year–old petitioner had been convicted of kidnapping for ransom and was given an LWOP sentence even though no one had been harmed or killed during the offense.   The Fourth District Court of Appeal held that the “case is among the rarest of the rare in which the punishment imposed violates article I, section 17 of the California Constitution.”  (Id. at p. 725.)   The court further held that “because petitioner is the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.”  (Id. at p. 715.)

In finding the imposed sentence void in the abstract for offenders younger than 16, the Nuñez court noted that the consequences of a defendant's actions inform the nature of the offense.  (Nuñez, supra, 173 Cal.App.4th at p. 726, quoting Lynch, supra, 8 Cal.3d at p. 426 [“ ‘ “[T]here are rational gradations of culpability that can be made on the basis of injury to the victim” ’ ”].)   The court further stated that “[a]ge also matters,” and that the petitioner's youth and the absence of injury or death to any victim raised a strong inference that imposition of an LWOP sentence for the kidnapping offense violated our state Constitution.  (Nunez, at p. 726.)   Finally, that “the state's sentencing scheme makes a perverse distinction between juvenile offenders under 16 years old, providing for harsher punishment for those who do not harm a victim kidnapped for ransom than for those who commit murder with special circumstances,” the imposition of a greater punishment for kidnapping was “arbitrary and grossly disproportionate.”  (Id. at pp. 729–730.)

Unlike the petitioner in Nunez, appellant did not commit a “nonhomicide, no-injury offense,” (Nuñez, supra, 173 Cal.App.4th at p. 715.)   Nor did he receive an LWOP sentence for any of his crimes.   Rather, his enhanced sentence reflects the severity of his conduct, which admittedly included “repeatedly discharg[ing] his firearm from a car, killing one person, injuring another, and terrorizing adults and children at four locations.”   Appellant cites no authority holding that an enhanced term-of-years sentence, like the one imposed in this case, is constitutionally excessive where a 14–year–old participates in a violent, gang-related crime spree resulting in one murder, one attempted murder, and numerous firearm offenses presenting a great threat of violence to innocent persons in their own neighborhood.

Nor are we persuaded by appellant's argument that his sentence is unconstitutional as applied to him in particular.   Again, this case is distinguishable from Nuñez.   In finding the sentence void as applied to the petitioner, the Nuñez court noted that, in addition to his youth and the no-injury consequences of his offense, the petitioner had a “slender history of criminality” and unrebutted evidence of PTSD and major depression, resulting from, inter alia, having been shot and having seen his brother shot and killed.  (Nuñez, supra, 173 Cal.App.4th at pp. 732–733.)   These facts, combined with the “anomaly” of the state judging the petitioner irredeemable by imposing an LWOP sentence “while at the same time extending hope of rehabilitation and parole to all juvenile kidnappers ․ who murder their victims,” convinced the court that the petitioner's sentence violated the state Constitution as applied.14  (Id. at pp. 733–734.)

Appellant suggests that he is similar to the petitioner in Nuñez.   In addition to the fact he was only 14 years old at the time he committed the crimes, appellant asserts he had a minimal history of criminal behavior, noting that, despite being involved in a criminal street gang for two years, “he had only two juvenile adjudications for relatively minor offenses—a felony auto theft, and a second degree burglary involving the theft of car stereos in a parking lot.”   Appellant also suggests the crimes in this case were fueled by his asserted mental conditions.   Thus, he states:

“While he was in custody in juvenile hall, appellant was diagnosed with post-traumatic stress disorder and depression, stemming from the incident when he was shot in the head.   Appellant was prescribed Trazodone for his insomnia, Prozac for his depression and Risperdal, an antipsychotic, to treat his auditory hallucinations.   When he was unexpectedly released early, he called his therapist at juvenile hall and asked for her help to obtain his medications, but, without assistance from any family member of appellant, his therapist was unable to get him the medications.   Five days after his release from juvenile hall without his antipsychotic and other medications, appellant drank to intoxication and committed the crimes in this case.”

Similarly, in arguing this case is distinguishable from Em, supra, 171 Cal.App.4th at p. 976 [50 years-to-life sentence imposed on immature 15–year–old convicted of first degree felony-murder as an aider and abettor not disproportionate when balanced against seriousness of crime, defendant's participation in crime and gang affiliation, and danger defendant presented to society],15 appellant asserts:

“Appellant's case is different because there was abundant undisputed evidence that appellant suffered from serious psychiatric disorders, namely, auditory hallucinations, depression, a sleeping disorder, and [PTSD], and that he had been unable to obtain the medications he needed once he was released from juvenile hall five days before he committed the crimes.”

None of the factors appellant cites compel the conclusion that his sentence was constitutionally disproportionate to his crimes.   Although we are troubled by appellant's inability to obtain his prescribed medications after being released from juvenile hall, as respondent correctly points outs, there was no evidence that “appellant drank alcohol the day of the incident because he did not have his prescribed medication” or that “any of appellant's alleged psychiatric disorders contributed to his heinous actions on the days of the crime.”   Moreover, despite appellant's characterization of the evidence as being undisputed, the prosecution mounted a strong attack on appellant's evidence of his alleged psychiatric disorders both in the cross-examination of defense witnesses and in its rebuttal case.   For example, both appellant's therapist Rachel Acosta and psychiatrist Dr. Charles acknowledged that they did not make a formal diagnosis or assessment of the mental disorders for which appellant was prescribed medications based on his self-reported symptoms.   The prosecution also presented expert testimony that appellant's conduct was inconsistent with someone suffering from PTSD. Finally, appellant's argument downplays his criminal history.   While he may have had only two prior juvenile adjudications, his conversations with Officer Gumm revealed a more extensive criminal history, which included possessing a weapon and ammunition, and being involved in two prior drive-by shootings with fellow SST members.

In sum, given “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (Lynch, supra, 8 Cal.3d at p. 425), appellant has not overcome the “ ‘considerable burden’ ” required under California law to demonstrate that the sentence is disproportionate to his level of culpability.  (Em, supra, 171 Cal.App.4th at p. 972.)

B. Federal Constitutional Principles

For the reasons discussed above, we also find that appellant's sentence does not violate the United States Constitution.   Under the Eighth Amendment, “[a] gross disproportionality principle is applicable to sentences for terms of years.”  (Lockyer v. Andrade (2003) 538 U.S. 63, 72.)   Outside the death penalty context, however, “ ‘successful challenges to the proportionality of particular sentences have been exceedingly rare.’  [Citation.]”  (Ewing v. California (2003) 538 U.S. 11, 21 [lead opn. of O'Connor, J.].) For example, a defendant can constitutionally be sentenced to life in prison without the possibility of parole for possession of 672 grams of cocaine.  (Harmelin v. Michigan (1991) 501 U.S. 957, 961, 990–994 [lead opn. of Scalia, J.];   see also id. at pp. 1008–1009 [conc. opn. of Kennedy, J.].)

Appellant relies on Graham v. Florida (2010) 560 U.S._ [130 S.Ct. 2011] (Graham ), in which a divided court held “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”  (Graham, supra, 560 U.S. at p _ [130 S.Ct. at p.2034] [lead opn. of Kennedy, J.].) Even assuming arguendo that appellant's enhanced term-of-years sentence was a de facto LWOP sentence, Graham is still inapplicable here because the Court expressly limited its holding to juveniles sentenced to LWOP for nonhomicide offenses:  Thus, the Court observed that “[j]uvenile offenders who [like appellant] committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide” and”[t]he instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.”  (Id. at _ [130 S.Ct. at p.2023], italics added.)

Appellant urges this court to extend Graham's reasoning to find his sentence unconstitutional, arguing that the Court's observation that an LWOP sentence “improperly denies the juvenile offender a chance to demonstrate growth and maturity” (Graham, supra, 560 U.S. at p _ [130 S.Ct. at p.2029] ) is “equally applicable to a juvenile offender such as appellant who is sentenced to life imprisonment without any possibility of parole for offenses that include homicide.”   The Graham court had no occasion to consider this argument because the juvenile in that case had not been convicted of a homicide.   Therefore, Graham does not assist appellant in advancing this argument because a case cannot be considered authority for a proposition it does not consider.  (People v. Alvarez (2002) 27 Cal.4th 1161, 1171.)

DISPOSITION

The sentence is reversed, and the matter is remanded for resentencing so as not to violate section 1170.1, subdivision (f), in accordance with the views expressed in section IV of this opinion.   The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

HILL, P.J.

WE CONCUR:

WISEMAN, J.

FRANSON, J.

FOOTNOTES

FN1. Further statutory references are to the Penal Code unless otherwise specified..  FN1. Further statutory references are to the Penal Code unless otherwise specified.

FN2. The jury acquitted appellant on counts 2 and 3, which charged appellant with the attempted murders of two “John Doe” victims during the shooting at the inhabited house..  FN2. The jury acquitted appellant on counts 2 and 3, which charged appellant with the attempted murders of two “John Doe” victims during the shooting at the inhabited house.

FN3. “Trece” is Spanish for the number 13..  FN3. “Trece” is Spanish for the number 13.

FN4. Some of the information was based on Officer Gumm's report and thus reflects some of the incidents described in his testimony..  FN4. Some of the information was based on Officer Gumm's report and thus reflects some of the incidents described in his testimony.

FN5. Chapman v. California (1967) 386 U.S. 18..  FN5. Chapman v. California (1967) 386 U.S. 18.

FN6. For example, after appellant falls a second time, the following exchange occurs between Officer Gonzales and a female officer who is identified in the transcript as “Switzer”:  “SWITZER:  Angel!   What's the deal?  [¶] GONZALES:  Angel come on, come on.   Let's just sit up.  [¶] ․ [¶] SWITZER:  There we go.   Just rest there, rest on that chair.   You think he's faking?  [¶] GONZALES:  Angel, yeah knowing him.   He had some alcohol earlier.   So ․ let me go get him a glass of water.  [¶] SWITZER:  Well you think that's a good idea?   He's just gonna throw it up again.   Let them ah, yeah let them ah deal with it.”  (Italics added.)   Later, after the paramedics arrive, this sarcastic exchange occurs between Switzer and one of the paramedics:  “SWITZER:  This is Angel.   But he's not so much.  [¶] PARAMEDIC:  He's not being an angel?   SWITZER:  No.” Switzer can also be heard identifying appellant to the paramedic as “the shooter.”.  FN6. For example, after appellant falls a second time, the following exchange occurs between Officer Gonzales and a female officer who is identified in the transcript as “Switzer”:  “SWITZER:  Angel!   What's the deal?  [¶] GONZALES:  Angel come on, come on.   Let's just sit up.  [¶] ․ [¶] SWITZER:  There we go.   Just rest there, rest on that chair.   You think he's faking?  [¶] GONZALES:  Angel, yeah knowing him.   He had some alcohol earlier.   So ․ let me go get him a glass of water.  [¶] SWITZER:  Well you think that's a good idea?   He's just gonna throw it up again.   Let them ah, yeah let them ah deal with it.”  (Italics added.)   Later, after the paramedics arrive, this sarcastic exchange occurs between Switzer and one of the paramedics:  “SWITZER:  This is Angel.   But he's not so much.  [¶] PARAMEDIC:  He's not being an angel?   SWITZER:  No.” Switzer can also be heard identifying appellant to the paramedic as “the shooter.”

FN7. Rather, the objection appellant cites was specifically directed at the officer's testimony listing the names and identifying information of numerous gang members, which is not the basis of appellant's evidentiary challenge on appeal..  FN7. Rather, the objection appellant cites was specifically directed at the officer's testimony listing the names and identifying information of numerous gang members, which is not the basis of appellant's evidentiary challenge on appeal.

FN8. After the trial in this case, and prior to sentencing, appellant filed a motion for a new trial based on Chun, which was decided several weeks after the jury returned its verdicts in this case.   After listening to argument from the parties, which included discussion of both Chun and Hach, the court denied the new trial motion, finding the instructional error in this case was harmless beyond a reasonable doubt under the Chapman test..  FN8. After the trial in this case, and prior to sentencing, appellant filed a motion for a new trial based on Chun, which was decided several weeks after the jury returned its verdicts in this case.   After listening to argument from the parties, which included discussion of both Chun and Hach, the court denied the new trial motion, finding the instructional error in this case was harmless beyond a reasonable doubt under the Chapman test.

FN9. The Chun court defined implied malice as follows:  “We have interpreted implied malice as having ‘both a physical and a mental component.   The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.”   [Citation.]  The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and ․ acts with a conscious disregard for life.”  [Citation.]’  [Citation.]”  (Chun,supra, 45 Cal.4th at p. 1181, fn. omitted.)   The Chun court also referred to this form of malice as “ ‘ “conscious-disregard-for-life malice.” ’ ”  (Chun,supra, 45 Cal.4th at p. 1181, fn. 2.).  FN9. The Chun court defined implied malice as follows:  “We have interpreted implied malice as having ‘both a physical and a mental component.   The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.”   [Citation.]  The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and ․ acts with a conscious disregard for life.”  [Citation.]’  [Citation.]”  (Chun,supra, 45 Cal.4th at p. 1181, fn. omitted.)   The Chun court also referred to this form of malice as “ ‘ “conscious-disregard-for-life malice.” ’ ”  (Chun,supra, 45 Cal.4th at p. 1181, fn. 2.)

FN10. Elsewhere in the opinion, the Chun court stated that the fact that the jury acquitted the defendant of the underlying felony demonstrated that the “overall verdict had to have been either a compromise or an act of leniency.”  (Chun,supra, 45 Cal.4th at p. 1204.)   The court reasoned, “[I]t is hard to reconcile this verdict.   If defendant did not commit this murder by firing at or from a vehicle, how did he commit it?   There was no evidence that the victims were killed or injured by any method other than shooting from and at an occupied vehicle.”  (Id. at pp. 1203–1204.)   The Chun court noted that the inconsistency did not, itself, serve as a basis for reversal because, “courts necessarily tolerate, and give effect to all parts of, inconsistent verdicts.”  (Id. at p. 1204.).  FN10. Elsewhere in the opinion, the Chun court stated that the fact that the jury acquitted the defendant of the underlying felony demonstrated that the “overall verdict had to have been either a compromise or an act of leniency.”  (Chun,supra, 45 Cal.4th at p. 1204.)   The court reasoned, “[I]t is hard to reconcile this verdict.   If defendant did not commit this murder by firing at or from a vehicle, how did he commit it?   There was no evidence that the victims were killed or injured by any method other than shooting from and at an occupied vehicle.”  (Id. at pp. 1203–1204.)   The Chun court noted that the inconsistency did not, itself, serve as a basis for reversal because, “courts necessarily tolerate, and give effect to all parts of, inconsistent verdicts.”  (Id. at p. 1204.)

FN11. The jury in this case was instructed on the concept of implied malice as follows:  “The defendant acted with implied malice if:  [¶] (1) He intentionally committed an act;  [¶] (2) The natural consequences of the act were dangerous to human life;  [¶] (3) At the time he acted, he knew his act was dangerous to human life;  [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.”  (CALCRIM No. 520 [defining murder with malice aforethought].)   With respect to the crime of willfully and maliciously shooting at an inhabited house (§ 246), the jury was instructed that “Someone acts maliciously when he or she does it willingly or on purpose.”  (CALCRIM No. 965)..  FN11. The jury in this case was instructed on the concept of implied malice as follows:  “The defendant acted with implied malice if:  [¶] (1) He intentionally committed an act;  [¶] (2) The natural consequences of the act were dangerous to human life;  [¶] (3) At the time he acted, he knew his act was dangerous to human life;  [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.”  (CALCRIM No. 520 [defining murder with malice aforethought].)   With respect to the crime of willfully and maliciously shooting at an inhabited house (§ 246), the jury was instructed that “Someone acts maliciously when he or she does it willingly or on purpose.”  (CALCRIM No. 965).

FN12. “Cruel or unusual punishment may not be inflicted or excessive fines imposed.”  (Cal. Const., art.   I, § 17.)  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  (U.S. Const., 8th Amend.).  FN12. “Cruel or unusual punishment may not be inflicted or excessive fines imposed.”  (Cal. Const., art.   I, § 17.)  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  (U.S. Const., 8th Amend.)

FN13. Specifically, section 190.5, subdivision (b) provides:  “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”.  FN13. Specifically, section 190.5, subdivision (b) provides:  “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”

FN14. The court found, for similar reasons, that the petitioner's sentence violated the Eighth Amendment.  (Nuñez,supra, 173 Cal.App.4th at pp. 734–737.).  FN14. The court found, for similar reasons, that the petitioner's sentence violated the Eighth Amendment.  (Nuñez,supra, 173 Cal.App.4th at pp. 734–737.)

FN15. See also People v. Gonzalez (2001) 87 Cal.App.4th 1, 16–17 [50 years-to-life sentence imposed on 16–year–olds who aided and abetted a murder was not cruel and unusual].).  FN15. See also People v. Gonzalez (2001) 87 Cal.App.4th 1, 16–17 [50 years-to-life sentence imposed on 16–year–olds who aided and abetted a murder was not cruel and unusual].)