THE PEOPLE v. DESHAWN CHAPPELL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Deshawn Chappell, appeals the judgment entered following his conviction, by jury trial, for first degree murder with special circumstance findings (during commission of a robbery, and while being an active participant in a criminal street gang), and with criminal street gang and firearm use enhancements (Pen.Code, §§ 187, 190.2, subds. (a)(17)(A) & (a)(22), 12022.53).¹  He was sentenced to state prison for a term of 50 years to life.

The judgment is affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

a. The murder.

On the afternoon of August 27, 2005, at about 1:00 p.m., 69-year-old Eliseo Reyes, a neighborhood ice cream man, was robbed and murdered near 56th and San Pedro Streets.   An eyewitness, Karen R., identified defendant Chappell as one of three people she saw getting into a car right after Reyes was shot.   She knew Chappell from seeing him around the neighborhood.   Karen went over to try and help Reyes, who had been shot in the chest.   He was bleeding and painfully gasping for air.   Karen put pressure on his wound to try and stop the bleeding.

Los Angeles Police Detective Michael Solezzi responded to the scene.   He secured the area and then called over a waiting ambulance.   Reyes was lying on the ground surrounded by a crowd of people.   He had a gunshot wound in his chest.   Paramedics arrived and attended to Reyes, who later died.

b. The confession.

On June 12, 2006, a police detective was interviewing Chappell in connection with an unrelated robbery investigation when Chappell said he had information regarding the murder of an ice cream man.   Chappell said he wanted a lighter sentence on the robbery in exchange for his information.   Two detectives investigating the Reyes murder, Daniel Gersna and Dennis Fanning, interviewed Chappell that same day.   Tape recordings of this interview were played for the jury.

Chappell told the detectives he was a member of the Five Deuce Broadway Gangster Crips gang and his moniker was “Little Hit Man.” Chappell first said a member of the Five-Six Playboys gang claimed he and fellow gang members had shot and robbed an ice cream man at 56th and San Pedro.   Then Chappell changed his story, saying he just happened to walk by the shooting scene and see the blood.   He continued walking to his grandmother's house, where he saw his cousin, Maurice Farmer and another man, Korey Milligan, wash themselves and leave guns in his grandmother's backyard.

Finally, Chappell admitted he had been present during the shooting and he told the following story.   He had been driving around that day with Milligan and Farmer in a white Toyota.   Milligan was driving.   Farmer was in the front passenger seat and Chappell was in the back.   There was a shotgun and a handgun in the car.   At 58th and Normandie, Farmer told Milligan to stop the car.   Farmer got out, ran up to a man in the street and said, “Where you from?”   When the man said “he was from five-eight neighborhood,” Farmer said, “Fuck that.   Give me all your shit.”   Farmer took the man's phone and iPod and then got back into the car.

While driving back to Chappell's grandmother's house, they spotted Reyes pushing his ice cream cart down the street.   When Farmer suggested robbing him, Chappell said “All right.”   Milligan stopped the car and told Farmer to shoot Reyes.   When Farmer refused, Milligan threatened him, saying:  “Fuck you then.   I should shoot you.”   Milligan then hopped out of the car, walked up to Reyes, said “What you got in your pocket?”, and shot him before Reyes could respond.   Reyes fell onto his back in the street.

Farmer and Chappell got out of the car, ran over to the fallen Reyes and started going through his pockets.   Farmer found money and credit cards in Reyes's front pockets.   Chappell had to lift Reyes up so he could look through his back pockets.   He didn't find anything there.   Reyes was making gasping or groaning sounds, but Chappell wasn't paying too much attention because he just wanted to find something to steal and “get out of there.”   Chappell ran back to the car, jumped into the back, unlocked the passenger door which Farmer had locked when he got out, and yelled to the others, “Come on.   Come on.   Come on.   Come on.   Come on.   Let's go.   Let's go.”   Milligan and Farmer returned to the car and they drove off.

Chappell asked for a share of the robbery proceeds and Farmer gave him five dollars.   Chappell went to his grandmother's house, where he washed Reyes's blood from his left hand.   He also washed the clothes he had been wearing.

c. Gang evidence.

Los Angeles Police Officer Ronald Berdin testified as a gang expert.   He had become familiar with the Five Deuce Broadway Gangster Crips over the last 10 years.   This gang was founded in the 1970s and had about 175 members.   Their primary activities “are anything from felony vandalism to weapons violations, narcotics sales, ․ attempt[ed] murders, murders, [and] street robberies.”   Berdin testified Milligan, Farmer and Chappell were all Five Deuce members.

Given a hypothetical based on the facts of this case, Berdin opined Chappell's involvement in the killing of Reyes had been for the benefit of the Five Deuce Broadway Gangster Crips.   The killing demonstrated to neighborhood residents and other gangs that Five Deuce was brazen enough to commit such a crime in broad daylight.   This benefitted the gang by intimidating anyone who entered Five Deuce territory and by dissuading potential witnesses from cooperating with the authorities.   The crime also benefitted Chappell personally by elevating his status within the gang.

2. Defense evidence.

At the time of Reyes's murder, Chappell was living with his mother, his aunt and his grandmother on East 56th Street, close to San Pedro.   His grandmother, Norma, testified that on the day of the shooting, she heard gunshots while she was inside her house.   Chappell and Farmer were also in the house at the time.   Farmer went outside to find out what happened and he returned to say a Mexican man had been shot.   Norma testified she was unaware that either Chappell or Farmer was a gang member.   Norma had two felony convictions for possession of marijuana for sale.

Maribel Partida used to live near the intersection of 56th Street and San Pedro, and she had witnessed Reyes's shooting from her house.   She saw a navy blue car drive up.   A man and two women got out.   Partida saw the man struggle with Reyes and then shoot him.   At no time did Partida see Chappell, whom she knew because he lived on her block.

CONTENTIONS

1. There was insufficient evidence to sustain the felony-murder special circumstance finding.

2. There was insufficient evidence to sustain the gang special circumstance finding.

3. Chappell's sentence constituted cruel and unusual punishment.

DISCUSSION

1. There was sufficient evidence to sustain the felony-murder special circumstance finding.

Chappell contends the felony-murder special circumstance finding was not supported by sufficient evidence.   This claim is meritless.

a. Standard of review.

“In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  The federal standard of review is to the same effect:  Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  [Citation.]  The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.  [Citation.]  ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt.  ‘ “If the circumstances reasonably justify the trier of fact's findings, the

“ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’  [Citation.]  ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’  [Citation.]”  (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)  “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.  [Citation.]  Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise.”   (Ibid.)

“To determine the sufficiency of the evidence to support a special circumstance finding, we apply the same test used to determine the sufficiency of the evidence to support a conviction of a criminal offense.   We ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citations.]”  (People v. Mayfield (1997) 14 Cal.4th 668, 790-791.)

b. The felony-murder special circumstance.

The felony-murder special circumstances is set forth in section 190.2, subdivision (a), which provides, in relevant part:  “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found ․ to be true:  [¶] ․ [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:  [¶] (A) Robbery in violation of Section 211 or 212.5.”

Section 190.2, subdivision (c), provides:  “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true․”

Section 190.2, subdivision (d), provides:  “Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true․”

c. There was sufficient evidence to sustain the felony-murder special circumstance finding.

Section 190.2, subdivision (d), is a codification of Tison v. Arizona (1987) 481 U.S. 137 [107 S.Ct. 1676], which held that felony-murder accomplices who neither intended to kill, nor inflicted fatal wounds, could be subject to the death penalty if they played a major role in the underlying felony and demonstrated reckless indifference to human life.  “A felony-murder special circumstance is applicable to a defendant who is not the actual killer if the defendant, either with the ‘intent to kill’ (§ 190.2, subd. (c)), or ‘with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [one of the eleven enumerated felonies].’ (§ 190.2, subd. (d), italics added․)”  (People v. Estrada (1995) 11 Cal.4th 568, 572.)

This principle has routinely resulted in valid special circumstance findings for non-killing felony-murder accomplices who were major participants in the underlying felony, and who demonstrated reckless indifference for human life.   (See People v. Smith (2005) 135 Cal.App.4th 914, 927-928 [defendant remained outside victim's motel room as lookout while accomplice entered room and murdered victim;  instead of assisting victim or summoning help, defendant fled with accomplice];  People v. Hodgson (2003) 111 Cal.App.4th 566, 578-580 [defendant facilitated escape of fellow gang member, who had just shot and robbed victim, by holding open electric parking garage gate and yelling a warning so killer would hurry];  People v. Proby (1998) 60 Cal.App.4th 922, 929-930 [defendant provided guns for armed robbery, made no attempt to help victim shot by accomplice, and had previously committed similar armed robbery with accomplice];  People v. Bustos (1994) 23 Cal.App.4th 1747, 1751-1755 [defendant entered restroom alone and unarmed to rob victim, knowing accomplice was waiting outside with knife;  after defendant and victim struggled, accomplice ran in and stabbed resisting victim, and defendant fled with accomplice and robbery loot, leaving victim to die].)

(1) There was sufficient evidence Chappell was a “major participant” in the robbery.

Chappell contends there was insufficient evidence of the “major participant” element of the felony-murder special circumstance.   This claim is meritless.

Chappell asserts the evidence was insufficient to show he was a major participant in the robbery because, in contrast to the cases cited above, he was just a “passive” participant.   Chappell argues he had merely been a passenger in Milligan's car when Farmer saw Reyes pushing his ice cream cart and suggested robbing him.   Although Chappell agreed to the plan, he was still inside the car when Milligan got out and shot Reyes.   Although he and Farmer then exited the car and went through Reyes's pockets, Chappell did not take anything.   Nor did he act as the lookout.

But this description of the crime ignores some important details.   The fact Chappell was not the lookout is irrelevant;  nobody acted as the lookout because Milligan, Farmer and Chappell all took active roles in the crime.   As soon as Milligan shot Reyes, Farmer and Chappell jumped out of the car and started going through Reyes's pockets looking for things to steal.   Chappell even lifted Reyes up in order to search his back pockets.   Chappell then ran back to the car, unlocked the passenger side door for Farmer, and yelled for Milligan and Farmer to hurry up so they could leave.   Chappell didn't take anything from Reyes only because he didn't find anything in his back pockets.   However, Chappell later asked for, and accepted, a share of the robbery loot from his companions.   All this evidence shows Chappell's participation was anything but “passive.”

Alternatively, Chappell argues he “clearly was not one of the more important participants in the robbery.”   Not so.   The determination of a defendant's role as a “major participant” does not require a ranked ordering of the perpetrators, with the least active accomplice necessarily being a “minor participant.”   In People v. Proby, supra, 60 Cal.App.4th 922, the defendant argued there was “insufficient evidence that he was a ‘major participant,’ under the common dictionary meaning of ‘major’ as being ‘greater in dignity, rank, importance, interest, number, quantity or extent.’   He claim[ed] a major participant is one such as a triggerman or ringleader whose participation was of greater importance than the other participants.”  (Id. at pp. 930-931.)   Proby concluded this definition was too narrow:  “We see no reason to impose such a restriction on the definition of major participant, and defendant provides us with no argument supporting such a restriction․  [¶] We note the [proposed] instruction relies on the common dictionary meaning of ‘major’ as ‘greater in dignity, rank, importance, interest, number, quantity or extent.’  [Citation.]  However, ․ the common dictionary meaning of ‘major’ also includes ‘notable or conspicuous in effect or scope’ and ‘one of the larger or more important members or units of a kind or group.’  [Citation.]”  (Id. at p. 934.)

Proby was cited by People v. Hodgson, supra, 111 Cal.App.4th 566, where the defendant's participation had been limited to helping his accomplice escape from the crime scene by keeping an automatic garage door from closing and by yelling out a warning.  Hodgson acknowledged “the evidence of appellant's involvement ․ is not as extensive as in other cases upholding robbery-murder special circumstance findings.”  (Id. at p. 578.)  “Nevertheless, his role in the robbery murder satisfies the requirement his assistance be ‘notable or conspicuous in effect or scope.’  [¶] To begin with, this is not a crime committed by a large gang or a group of several accomplices.   Instead only two individuals were involved.   Thus, appellant's role was more ‘notable and conspicuous' - and also more essential - than if the shooter had been assisted by a coterie of confederates.   By slowing down the closing automatic electric garage gate appellant was instrumental in assisting [his accomplice to] effect his escape with the loot.”  (Id. at pp. 579-580.)

In People v. Smith, supra, 135 Cal.App.4th 914, the defendant merely waited outside a motel room while his accomplice went in and murdered the victim.   Citing Proby 's analysis of the “major participant” factor, Smith held:  “The jury could have found beyond a reasonable doubt that [defendant's] contributions were ‘notable and conspicuous' because he was the one of only three perpetrators, and served as the only lookout to an attempted robbery occurring in an occupied motel complex.  [Citation.]  Unlike the hypothetical ‘non-major participant’ in Tison ² ․ who ‘merely [sat] in a car away from the actual scene of the murders acting as the getaway driver to a robbery’ - [the defendant here] stood sentry just outside [the victim's] room, where the jury could infer he monitored and guarded the increasingly lengthy, loud, and violent attempted robbery-turned-murder.  [Citation.]”  (Id. at p. 928.)

We conclude there was sufficient evidence in the case at bar of the “major participant” element of the felony-murder special circumstance.

(2) There was sufficient evidence Chappell acted with “reckless indifference for human life.”

Chappell contends there was insufficient evidence of the “reckless indifference to human life” element of the felony-murder special circumstance.   This claim is meritless.

In People v. Estrada, supra, 11 Cal.4th 568, our Supreme Court affirmed the constitutionality of California's felony-murder special circumstance statute:  “Tison ․ instructs that the culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death’ [citation], and it is this meaning that we ascribe to the statutory phrase ‘reckless indifference to human life’ in section 190.2(d).”  (Id. at p. 577.)  “We have determined that, viewing the statutory language as a whole, the common understanding of the phrase ‘reckless indifference to human life’ conveys the notion that a defendant subjectively appreciated that his or her conduct created a grave risk of death.   Because the ordinary meaning of the statutory phrase amply communicates the parameters of the mental state subjecting a defendant to a sentence of death or lifelong incarceration - as articulated in Tison - the statute is sufficiently certain.  [Citation.]”  (Id. at p. 581.)

The “reckless indifference” element can be proved solely by the circumstances of the current offense.  (See People v. Bustos, supra, 23 Cal.App.4th at pp. 1754-1755 [defendant knew accomplice had a knife, defendant saw accomplice stab victim without trying to intervene, and defendant then fled with co-perpetrators and robbery loot, leaving victim to die];  People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant who helped plan armed robbery at drug dealer's house “had to be aware of the risk of resistance to such an armed invasion of the home and the extreme likelihood death could result”];  People v. Hodgson, supra, 111 Cal.App.4th at p. 580 [defendant “had to be aware use of a gun to effect the robbery presented a grave risk of death,” but “instead of coming to the victim's aid after the first shot, he instead chose to assist [actual killer] in accomplishing the robbery”].)

The reckless indifference evidence is even stronger where the defendant knew, from prior experience, that the actual killer was willing to harm people.   In Proby, for instance, evidence the defendant and the actual killer had committed a prior armed robbery “gave defendant notice of [the actual killer's] willingness to harm people, because defendant knew [the actual killer had] locked the employees in the walk-in freezer with the expectation they would be trapped there for five hours.”  (People v. Proby, supra, 60 Cal.App.4th at p. 930.)   Here, there was strong evidence Chappell had precisely such prior knowledge.   Chappell concedes he “told [the] detectives that Farmer and Milligan ‘just shoot people for fun’ “ and that “he had driven with Farmer and Milligan about a week before the Reyes shooting when they shot two people from the East Coast gang.”

Chappell told the police that, about a week before the murder, he, Milligan and Farmer had driven to a liquor store near Broadway and 60th Street.   Milligan and Farmer had brought along a shotgun and a handgun, and they shot two rival gang members.   Chappell said he watched Milligan use the handgun to shoot one man in the stomach.   Chappell said Milligan and Farmer “just rolled up and just shot him.”

Chappell told the detectives Milligan and Farmer were “always going on a mission to shoot people just for fun and stuff,” and that Milligan “likes to kill people.”   Asked how many people Milligan had shot over the years, Chappell replied, “A lot.”   Asked how many people Farmer had shot, Chappell said:  “I know he shot like three people.”   Chappell acknowledged his gang had a special name, the “murder squad,” for the guys “that kill people a lot.”   Chappell concedes he “told detectives that Farmer and Milligan ․ may have been members of the gang's ‘murder squad.’  “ ³ Moreover, on the same day Reyes was murdered, Chappell was in the car when Farmer got out and robbed a man walking down the street.   Chappell tries to downplay this earlier robbery by arguing Farmer did not display his gun to the victim.   However, the record shows it had not been necessary for Farmer to take out his gun and show it to the victim because it was obvious he was armed.⁴

During closing argument, the prosecutor locked in on these circumstances as revelatory of Chappell's state of mind, arguing that just a week before Reyes's killing Chappell, Farmer and Milligan, armed with a shotgun and a handgun, went driving around in Milligan's car looking for rival gang members to shoot:  “And what did they drive around for?   Going on a safari.   Going hunting, hunting in the neighborhood.   And they shot someone and they said it was East Coast, East Coast Crips, one of their rivals.”  “And then what happens on August 27th, 2005?   It's time to go again.   And what happens?   What does [Chappell] tell you what happens?   Guns are loaded up again.   It's the same three people.   What does [Chappell] think is going to happen this time around?   What does the defendant think is going to happen?”  “[Y]ou have to look at it from this perspective, from the gang lifestyle, that gang culture.   Look at it through those eyes.   When you have multiple people going out to commit a crime and you have multiple gang members, multiple 5 Deuce Broadway Gangster Crips getting in a car with guns to cruise around, what are they going to do?   What are those men going out there to do?   Well, we know what they did a few days before, they rob one person and they took a phone and an i-Pod, and then Eliseo Reyes.”   “And again, you go back to the fact that [Chappell] knows he's going out with one of the murder squad in a car with guns.   They've done this before just a few days earlier.   What does he think is going to happen?   What is his plan?”

Given this over-arching context, the jury could reasonably conclude that, when Chappell agreed to the plan for robbing Reyes, he subjectively appreciated his conduct was helping to create a grave risk of death.

Hence, we conclude there was ample evidence to show Chappell aided and abetted the robbery as a major participant and with reckless indifference for human life, and that therefore the felony-murder special circumstance finding was proper.

2. There was insufficient evidence to sustain the gang-related special circumstance finding.

a. The gang special circumstance.

The gang special circumstances is set forth in section 190.2, subdivision (a), which provides, in relevant part:  “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found ․ to be true:  [¶] ․ [¶] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”

Section 190.2, subdivision (c), provides:  “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true․”  Hence, to be liable for the gang special circumstance, a defendant who was not the actual killer has to have aided and abetted the murder “with the intent to kill.”

b. Discussion.

The Attorney General asserts “the jury necessarily found that appellant harbored the intent to kill [Reyes] when it found that he was guilty of first degree murder.”   Not so.   The jury was given three different first degree murder theories:  premeditation and deliberation;  the natural and probable consequences doctrine;  and, felony-murder.   The Attorney General's assertion only applies to the first theory;  the latter two theories impose vicarious liability on a defendant who did not share the actual killer's intent to kill.⁵

Alternatively, the Attorney General argues the same reasoning used to support the felony-murder special circumstance supports the gang special circumstance:  Chappell knew his fellow gang members were armed;  a week earlier he had been with them when they shot two men;  on this day, he knew Milligan and Farmer were again armed;  he saw Farmer make use of the handgun to rob another victim just prior to Reyes's killing.

In People v. Valesquez (1980) 26 Cal.3d 425, our Supreme Court first explained the meaning of “intent to kill” for purposes of the special circumstances statute:  “ ‘For a result to be caused “intentionally,” the actor must either desire the result or know, to a substantial certainty, that the result will occur.’  “ (Id. at p. 434.)

There is a significant difference between the “major participant/reckless indifference” test for felony-murder special circumstance liability for a non-killer, and the “intent to kill” test for gang special circumstance liability for a non-killer.  “Reckless indifference” involves risk and forseeability, concepts associated with implied malice.  “Intent to kill” does not involve those concepts.  “[Velasquez ] did not hold that an intentional killing may be proved by showing the killer acted with implied malice.   Malice is implied under section 188 when ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’ ⁶  [Citation.]   Velasquez simply reiterated that ‘ “[f]or a result to be caused ‘intentionally,’ the actor must either desire the result or know, to a substantial certainty, that the result will occur.”  [Citation.]'  “ (People v. Davenport (1985) 41 Cal.3d 247, 262.)

There was really no evidence here that Chappell wanted Reyes to die.   While the prosecutor's closing argument (see ante ) made an excellent case for the proposition that, given Chappell's awareness of his companions' violent tendencies, he had to know there was a grave risk that robbing Reyes could result in the victim's death, this falls short of Chappell's knowing “to a substantial certainty” death would result.   Apart from knowing his companions were reputed to be killers, the evidence showed Chappell apparently only witnessed them shooting rival gang members.   The contemplated crime, however, was a robbery, not a gang-rivalry shooting.   And the robbery earlier that day had been accomplished without Farmer having to draw his gun, let alone fire it.

The best example of how the “substantial certainty” concept operates is found in People v. Smith (2005) 37 Cal.4th 733, where the defendant was convicted on two counts of attempted murder for firing a single bullet into a vehicle, narrowly missing a mother and her infant son who was strapped into a car seat directly behind her.   The evidence showed the defendant only meant to shoot the woman, and on appeal he claimed there was, therefore, insufficient evidence of his intent to kill the baby.   This claim was rejected:  “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’  [Citation.]  To be guilty of attempted murder of the baby, defendant had to harbor express malice toward that victim.  [Citation.]  Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’  [Citation.]”  ‘ “ (Id. at p. 739.)  “The defense below offered nothing to undercut the force of the inference, drawn by the jury on the People's evidence, that defendant acted with intent to kill both victims when he fired off a single round at them from close range, each of whom he knew was directly in his line of fire.”  (Id. at p. 743.)

The question here is more complicated because Chappell was not the person who killed Reyes.   Nevertheless, considering the “substantial certainty” concept in the aiding and abetting context, we conclude there is simply not the same quantum of assurance the Supreme Court found in Smith that Chappell must have known, when he agreed to rob Reyes, death would result.   In a case where almost all of the inculpatory evidence against Chappell came out of his own mouth, i.e., from his police statement, we are struck by the evidence indicating Chappell's apparent aimlessness that day and the casualness with which he participated in the robbery.

Explaining how he happened to be in the car that day, Chappell said he was just hanging out at his grandmother's house when Milligan came over.   Milligan asked Farmer, “ ‘What you doing today?’   And [Farmer replied], ‘I ain't doing shit.’   So he like let's go somewhere.   So he asked me to go with him, too.   So I said, ‘All right.’   And we went.”   A detective then asked why Chappell would go along with them after having witnessed the drive-by shooting of rival gang members the week before:

“[Detective]:  You just met [Milligan] the week before and they already shot another dude over at Broadway and 60.   If you know he was like that why did you get in the car with him, man?

“[Chappell]:  I just got in the car.

“[Detective]:  Because you knew what was going to happen, right?

“[Chappell]:  No. I didn't know they was going to shoot no ice cream man or nothing.”

We do not find in the record substantial evidence that when Chappell agreed to join in the robbery, he either wanted Reyes dead or knew to a substantial certainty his death would result.   Hence, we conclude there was insufficient evidence to sustain the gang special circumstance finding.

3. Chappell's indeterminate life term did not constitute cruel and unusual punishment.

Chappell contends his sentence of 50 years to life constitutes cruel and unusual punishment.   This claim is meritless.

a. Sentencing background.

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.”

In this case, the effect of section 190.5, subdivision (b), is that Chappell, who was 14 years old when he committed this crime, could not be sentenced to life without possibility of parole even though the jury made two special circumstance findings.  (See In re Nunez (2009) 173 Cal.App.4th 709, 727, fn. omitted [“[S]ection 190.5, subdivision (b), limits the availability of LWOP as a sentencing option ․ to offenders 16 years of age or older at the time of the offense.   Consequently, of the penalties prescribed in section 190, i.e., death, LWOP, or a life term with the possibility of parole, only the last is potentially available for a 14-year-old juvenile convicted of first degree murder, even with special circumstances.”];  People v. Demirdjian (2006) 144 Cal.App.4th 10, 17 [“For juveniles under 16 who were 14 or 15 when the crime was committed, a life term without possibility of parole is not permitted, leaving a term of 25 years to life with possibility of parole.”].)

Accordingly, the trial court sentenced Chappell to 25 years to life for the murder, with a mandatory consecutive term of 25 years to life for the firearm use enhancement (§ 12022.53, subd. (d), (e)(1) [principal discharged firearm, causing great bodily injury or death, and defendant sustained gang enhancement] ).

b. Legal principles.

“A punishment is excessive under the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’  (Gregg v. Georgia (1976) 428 U.S. 153, 173 [96 S.Ct. 2909, 2925 ․ ].) A punishment may violate article I, section 17 of the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’  (In re Lynch (1972) 8 Cal.3d 410, 424 ․, fn. omitted.)  [¶] In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense.  (Solem v. Helm (1983) 463 U.S. 277, 290-291 [103 S.Ct. 3001, 3009-3010 ․ ];  In re Lynch, supra, 8 Cal.3d at pp. 425-427.)”  (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.)

Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual.   The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature.   Perhaps foremost among these are the definition of crime and the determination of punishment.  [Citations.]  While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’  [Citation.]”  (People v. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.)   Federal law is to the same effect.  (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836] [mandatory sentence of life without possibility of parole for possessing 672 grams of cocaine did not violate Eighth Amendment].)

“A petitioner attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions.  [Citation.]  The petitioner need not establish all three factors - one may be sufficient [citation], but the petitioner nevertheless must overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of culpability [citation].   As a result, ‘[f]indings of disproportionality have occurred with exquisite rarity in the case law.’  [Citation.]”  (People v. Nunez, supra, 173 Cal.App.4th at p. 725.)

c. Discussion.

Chappell contends a 50 years-to-life term is constitutionally disproportionate given the circumstances of his offense and his personal background.   He asserts he should have only been punished as a second degree murderer or, at the very least, that the sentences should have been made to run concurrently.   We disagree.

Chappell argues his case can be reasonably compared to People v. Dillon (1983) 34 Cal.3d 441.   It cannot.   The 17-year-old Dillon was convicted of felony-murder and attempted robbery after killing a man who had been guarding a marijuana crop which defendant and his friends were trying to steal.   The evidence showed that as the victim advanced on him with a shotgun, Dillon fired his .22 caliber rifle out of fear and panic.  (Id. at p. 487.)   Dillon's homicide had been “a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger.”  (Id. at p. 488.)

Chappell's case shares none of these characteristics.   Reyes was not armed.   He was not shot in a confrontation during which his killer panicked and thought Reyes might harm him.   Instead, Reyes was executed in a calm and cold-blooded manner so that Chappell and his companions could rob him.   Although Chappell was not the actual killer, it is not true, as he claims, that his actions “did not contribute to Reyes['s] death, as he was already dead or dying when appellant went through his pockets.”   The essence of accomplice liability is “acting in furtherance of a [common] criminal purpose,” and being “jointly engaged in [a criminal] enterprise.”  (People v. Pulido (1997) 15 Cal.4th 713, 719.)   A standard jury instruction explains:  “A person aids and abets the commission or attempted commission of a crime when he or she:  [¶] 1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime.”  (CALJIC No. 3.01.)   By agreeing to the robbery, Chappell helped set the crime in motion and contributed to Reyes's death.

Moreover, Milligan shot the victim, Chappell neither stayed in the car nor tried to help Reyes.   Instead he helped Farmer rob Reyes, lifting Reyes up so he could go through his back pockets.   The evidence showed Reyes was still alive at that point.   Chappell then ran back to the car, jumped into the back seat and unlocked the front passenger seat for Farmer, and then yelled at Milligan and Farmer to hurry up.   Back at his grandmother's house, Chappell washed Reyes's blood off his hand and laundered his clothes.   Chappell did not go to the police until after he was arrested on yet another robbery charge, and even then he initially lied to them in an attempt to avoid taking responsibility for his conduct.   All of this tends to show Chappell knew he had contributed to Reyes's death.

As the Attorney General points out, post-Dillon appellate cases have upheld the constitutionality of life sentences imposed on 14 and 15 year olds for aiding and abetting felony-murders.  (See People v. Em (2009) 171 Cal.App.4th 964, 975 [consecutive 25-years-to-life terms (for murder and section 12022.53 firearm enhancement) imposed on 15-year-old accomplice in a gang robbery was not cruel and unusual punishment];  People v. Ortiz (1997) 57 Cal.App.4th 480, 486-487 [affirming 26-years-to-life sentence for 14-year-old gang member who aided and abetted felony-murder:  “[T]his is not [Dillon ].   This was not the impulsive act of a frightened teenager against an armed criminal.   This was a coldly premeditated crime where the participants had plenty of time to reflect on the consequences of their actions.”].)

We recognize the sentence is very severe for a crime committed by one so young.⁷  However, Chappell's age was taken into account by section 190.5, subdivision (b), which prohibited life without possibility of parole as a possible sentence.   We also recognize the troubling circumstances of Chappell's background.   He is apparently illiterate, with the reading level of a first grader.   His father was dead and his mother, who was involved with drugs, had spent time in prison and living on the street.   His 17-year-old brother belonged to the same gang Chappell belonged to.   His grandmother had two felony drug convictions and was on probation.   On the other hand, Chappell chose to live the gang life, and his criminal history was not exactly negligible, consisting of two sustained juvenile petitions for vehicle theft, plus another for robbery, in addition to the new robbery which he was trying to bargain away with his information about the Reyes murder.

DISPOSITION

The gang special circumstance finding is vacated.   As modified, the judgment is affirmed.   The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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

FN2. Tison had reasoned:  “The petitioners' own personal involvement in the crimes was not minor, but rather, as specifically found by the trial court, ‘substantial.’   Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight.”   (Tison v. Arizona, supra, 481 U.S. at p. 158, italics added.).  FN2. Tison had reasoned:  “The petitioners' own personal involvement in the crimes was not minor, but rather, as specifically found by the trial court, ‘substantial.’   Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each petitioner was actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight.”   (Tison v. Arizona, supra, 481 U.S. at p. 158, italics added.)

FN3. Asked if his accomplices were part of the murder squad, Chappell said:  “Well, [Milligan] - no [Farmer] he had just gotten into it about last year.   And [Milligan] he is in the - “ Although this response, as recorded by the transcriber of the tape recording, is ambiguous, it appears Chappell was saying that at least one of them was a member of the murder squad..  FN3. Asked if his accomplices were part of the murder squad, Chappell said:  “Well, [Milligan] - no [Farmer] he had just gotten into it about last year.   And [Milligan] he is in the - “ Although this response, as recorded by the transcriber of the tape recording, is ambiguous, it appears Chappell was saying that at least one of them was a member of the murder squad.

FN4. Chappell conceded, while discussing this incident with the detectives, that the victim gave up his property only because he must have realized Farmer was armed.   When Chappell said Farmer kept the gun in his pocket, one of the detectives asked:  “If he runs up on another gangster, he ain't got nothing in his hand, why is a gangster going to give up his shit?”   Chappell agreed it must have been because Farmer's pocket was “fat,” i.e., because he obviously was carrying a gun in his pocket..  FN4. Chappell conceded, while discussing this incident with the detectives, that the victim gave up his property only because he must have realized Farmer was armed.   When Chappell said Farmer kept the gun in his pocket, one of the detectives asked:  “If he runs up on another gangster, he ain't got nothing in his hand, why is a gangster going to give up his shit?”   Chappell agreed it must have been because Farmer's pocket was “fat,” i.e., because he obviously was carrying a gun in his pocket.

FN5. An accomplice is liable not only for the crime intended to be aided and abetted, but also for any crime committed by a principal that is a natural and probable consequence of the target offense.  “Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.”   (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)   In determining whether the additional crime is a natural and probable consequence of the first crime, the “question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.”  (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.).  FN5. An accomplice is liable not only for the crime intended to be aided and abetted, but also for any crime committed by a principal that is a natural and probable consequence of the target offense.  “Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.”   (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)   In determining whether the additional crime is a natural and probable consequence of the first crime, the “question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.”  (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)

FN6. Section 188 now states malice “is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”.  FN6. Section 188 now states malice “is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

FN7. Although Chappell cites United States Supreme Court authority for the proposition that his age alone merits a lesser sentence, these cases do not compel a finding Chappell's sentence constituted cruel and unusual punishment.   He cites Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183], to the effect that juveniles should be treated differently than adults.  “Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments.   [Citation.]  As compared to adults, juveniles have a ‘ “lack of maturity and an underdeveloped sense of responsibility” ‘;  they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’;  and their characters are ‘not as well formed.’   [Citation.]  These salient characteristics mean that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’   [Citation.]  Accordingly, ‘juvenile offenders cannot with reliability be classified among the worst offenders.’․  [¶] No recent data provide reason to reconsider the Court's observations in Roper about the nature of juveniles.   As petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds․  Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.''  (Graham v. Florida (2010) 130 S.Ct. 2011, 2026 [176 L.Ed.2d 825].   However, Roper itself is inapposite because it held only that imposition of the death penalty on juvenile offenders violated the Eighth Amendment.   And Graham, which held imposition of a life-without-possibility-of-parole sentence on a juvenile offender who did not commit homicide violated the Eighth Amendment, is inapposite because there was a homicide here..  FN7. Although Chappell cites United States Supreme Court authority for the proposition that his age alone merits a lesser sentence, these cases do not compel a finding Chappell's sentence constituted cruel and unusual punishment.   He cites Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183], to the effect that juveniles should be treated differently than adults.  “Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments.   [Citation.]  As compared to adults, juveniles have a ‘ “lack of maturity and an underdeveloped sense of responsibility” ‘;  they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’;  and their characters are ‘not as well formed.’   [Citation.]  These salient characteristics mean that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’   [Citation.]  Accordingly, ‘juvenile offenders cannot with reliability be classified among the worst offenders.’․  [¶] No recent data provide reason to reconsider the Court's observations in Roper about the nature of juveniles.   As petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds․  Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.''  (Graham v. Florida (2010) 130 S.Ct. 2011, 2026 [176 L.Ed.2d 825].   However, Roper itself is inapposite because it held only that imposition of the death penalty on juvenile offenders violated the Eighth Amendment.   And Graham, which held imposition of a life-without-possibility-of-parole sentence on a juvenile offender who did not commit homicide violated the Eighth Amendment, is inapposite because there was a homicide here.

CROSKEY, J. ALDRICH, J.