THE PEOPLE v. MONICA DIAZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BACKGROUND

A. Trial Evidence

As set forth in People v. Diaz (Dec. 22, 2005, B175089) [nonpub. opn.]  (Diaz I ), at pages 2–6:  “In July 2000, 16–year–old defendant and her 17–year–old half sister, Laura Renta, lived in Pico Rivera with defendant's aunt and uncle, Richard and Sylvia Flores, and their four children, 18–year–old Esperanza, 17–year–old Richard Jr., 14–year–old Sylvia Jr., and 10–year–old Matthew.   Defendant's and Laura's mother had died when defendant was three years old.   After a period of living with other relatives, defendant and Laura had come to live with Mr. and Mrs. Flores, where they were considered part of the family.   Defendant followed house rules, did her chores, and helped her cousins with their homework.

“Defendant met Michael Naranjo in high school.   By March 1999, they were girlfriend and boyfriend, and Naranjo was a frequent guest at the Flores house.   In a letter to Naranjo dated March 9, 1999, defendant talked admiringly about murderers.   She stated that ‘[t]he best job is to kill people professionally’ and that books about serial killers were her favorites because she could learn from the mistakes of others.   In an April 1999 letter, defendant told Naranjo that she thought the Colorado school shootings ‘kicked ass' and that the ‘Trenchcoat Mafia’ was ‘cool.’   And in another letter written in April, defendant told Naranjo that when there was a minimum school day, the two ‘should do something that day.   Not your average day though.   Go, kill a few people, break some windows and stuff like that.   You get the picture right?   Maybe I should add some more details to it.   I just have to do something really crazy and really soon.   Cause if I don't, I might hurt the people I care about the most.’

“In the early morning hours of July 21, 2000, the members of the Flores household (except for defendant) were asleep in bed.   Mrs. Flores awoke to find an intruder struggling with her husband.   She realized that she was bleeding and kicked the intruder, who fell down and fled.   Esperanza was awakened by the noise, got up to investigate, and saw someone go out the back door.   She went into her parents' bedroom, where her father told her that he had been stabbed;  he fell to the floor.   Esperanza called 911.

“Sheriff's deputies and paramedics who arrived at the scene found Mr. Flores on the floor of the bedroom, dead of multiple stab wounds.   Mrs. Flores also had multiple stab wounds, for which she was taken to the hospital.   Richard Jr. and Matthew were found dead in the bedroom that they shared.   Sylvia Jr. was found dead in the bedroom she shared with defendant.   All had died of multiple stab wounds.  (Esperanza and Laura, who also shared a bedroom, were not harmed.)

“Witnesses at the scene testified that defendant appeared calm and seemed unaffected in the aftermath of the murders.   She kept to herself, playing with a toy bear while others mourned.   Investigators found a ‘butterfly’ knife and a throwing knife in one of the bathrooms of the house.   A flashlight with a red lens was found in the hallway.   Near the gate to the side yard, other knives, an axe, and a roll of duct tape were found.   Pieces of duct tape were also found at three locations inside the house and on the air conditioning unit outside.

“Defendant spoke with officers the next afternoon.   She said she was in the bathroom during the attack.   When shown photographs of the butterfly and throwing knives, defendant said they were not in the bathroom when she was there.

“In the days following the murders, defendant stayed with a relative.   Naranjo often came to visit, and he and defendant were affectionate with each other, mainly staying by themselves.   At one point defendant visited Mrs. Flores in the hospital.   Defendant was dressed ‘inappropriately,’ in violation of family rules, and ‘seemed distant.’

“Forensic examination revealed defendant's fingerprints or palm prints on the knifes found in the bathroom, the piece of duct tape on the air conditioning unit, and the roll of duct tape.   All of the pieces of duct tape found by officers had been part of the same roll.   Naranjo's prints were on one of the knives found in the bathroom and the flashlight.

“Defendant and Naranjo were arrested on July 26, 2000.   They were placed in the back seat of a police car by themselves and their conversation was tape-recorded.   They professed their love for each other and discussed the possibility of continuing their relationship.   Sometime later, Esperanza visited defendant in jail.   Defendant told Esperanza that no one was supposed to die and that the plan was to tie up the family members and put duct tape over their mouths.   The purpose of this scheme was to bring the family together.

“Naranjo testified for the defense.[¹ ]  He stated that defendant told him Mr. and Mrs. Flores had been having problems with each other.   In response, Naranjo devised a plan in which he would break into the family home and pretend to commit a robbery.   But, explained Naranjo, unknown to defendant he actually planned to kill all the family members once he got inside.   Naranjo had no particular reason for wanting to do this, although he had been thinking about killing people from the time he was 13 or 14 years old.  (In March or April 1999, Naranjo wrote a letter to defendant in which he said that the one thing he wanted to ‘do before [his] life ends, one thing is to kill a shit-load of people.’)   While he was attacking Mr. and Mrs. Flores in their bedroom, Mrs. Flores kicked him.   Naranjo then went into the bathroom, where defendant was waiting, and handed some knives to her.   She put them down and left the bathroom.   Naranjo then fled.

“Testifying in her own behalf, defendant asserted that she had written letters to Naranjo about murder because she knew he was interested in the subject and she wanted to get him to like her.   She thought Naranjo's interest in killing people was ‘just talk.’   She knew that Naranjo had a collection of knives, but did not think much of it.

“According to defendant, at one point Mr. and Mrs. Flores started to argue with each other.   She thought their marriage was at risk and felt anxious about what would happen to her if they separated.   Hearing this, Naranjo proposed a plan by which he would come to the house, bind the family members, gather property and pile it in the living room as if it were going to be stolen, and then leave without taking anything.   Naranjo said that doing so would scare the family and make them unite.   Defendant initially thought the plan was unworkable, but reconsidered when it was explained that the lights would be off so Naranjo would not be identified.

“Defendant continued that, on the night of the murders, she went outside when Naranjo arrived and helped him to cut the duct tape.   She did not see any weapons at that time.   The two then entered the house and defendant went into the bathroom.   She heard struggling noises from other rooms, and when Naranjo came into the bathroom he had two knives and was covered in blood.   At that point, defendant realized that her family members had probably been hurt.   She went to see what was happening as Naranjo fled.   She did not want to believe what she saw and did not tell the police because she was in denial.   She told the police about Naranjo only after she and Naranjo had been arrested.

“Following the testimony of Naranjo and defendant, the defense presented child psychiatrist Dr. Gregory Doane.   Dr. Doane testified that for about one and one-half years he had met with defendant for 45 minutes every two weeks in the juvenile facility where she had been detained following the murders.   (Defendant also met with a social worker psychotherapist during that time.)   Dr. Doane's initial diagnosis of defendant was dysthymic disorder, a condition of low- to mid-grade depression which persists throughout one's life.   Two weeks later, Dr. Doane revised the diagnosis to include major depression with psychotic features.   In September 2000, Dr. Doane again revised the diagnosis, this time to include borderline personality disorder.

“Dr. Doane was of the opinion that at approximately three years of age, defendant ‘apparently must have gone through a lot of abandonment, ․ feelings of no stability, and throughout the rest of her teenage years kind of emotionally relived those chaotic years, and being very afraid of being abandoned.’   Defendant reported that between ages four and six, she invented an imaginary character, a person named ‘Freddy.’   The character had ‘stayed with her’ and ‘took on a psychotic hallucinatory value when she was under stress.’   Dr. Doane explained that ‘[w]hen stressed [defendant] tends to disassociate․  She just can't realize what's gone on.’   Defendant's failure to report that Naranjo had committed the murders was consistent with her diagnoses.  ‘She idolized [Naranjo], she couldn't see any wrong in him, and she just couldn't put two and two together when she saw what happened.’  ‘[U]ntil the very end she considered [Naranjo] to be God, basically.’   It was ‘credible to [Dr. Doane] that [defendant] just basically could not understand what had happened and just refused to think about it.’ ”   Doane was unaware of, and “disturb[ed]” by, defendant's preoffense letters to Naranjo regarding murder.   He admitted that if defendant had consistently lied to him, his evaluation and diagnosis could be wrong.

As further set forth in Diaz I, at pages 6–7:  “In argument to the jury, the prosecutor asserted that defendant and Naranjo had jointly planned the murders and defendant was therefore guilty of premeditated murders and murder by lying in wait, as well as attempted premeditated murder.   The prosecutor further argued that defendant's testimony constituted a judicial admission of first degree felony murder under the theory that defendant had aided and abetted a burglary in which she intended that her family be falsely imprisoned in order to frighten them.  “In defendant's argument to the jury, counsel referred to Dr. Doane's testimony about defendant's efforts to avoid abandonment and her idolization of Naranjo.   Counsel continued that, ‘as crazy as it seems, [defendant] believes that [Naranjo is] going to come and save the day, her knight in shining armor.   This plan about a phony break-in to bring the family together, [an] outside threat to cause the family to stay together.’   Thus, counsel urged, Naranjo was solely responsible for the murders.   Counsel also acknowledged the existence of the felony-murder theory but did not directly refute it, asserting that the prosecutor was just ‘throwing [it] against the wall and seeing what sticks.’ ”

A jury convicted defendant of attempted premeditated murder and four counts of murder with special circumstance findings of multiple murder.   The trial court originally sentenced her to consecutive terms of life without the possibility of parole on the four murder counts and to a life term for attempted premeditated murder.

B. First Appeal and Ensuing Proceedings on Remand

In her first appeal, defendant contended that the trial court erroneously limited the admission and consideration of evidence that she thought Naranjo would only frighten her family members and did not know of his plan to kill them.   We found merit in defendant's contention and concluded that the error was prejudicial with respect to the element of defendant's intent, thereby requiring reversal of the special circumstance findings and the attempted murder verdict.  (Diaz I, supra, B175089, at pp.   10–12.)   But we reasoned that the error was harmless with respect to defendant's convictions of four counts of first degree murder because these convictions could be sustained on the felony-murder theory that defendant aided and abetted Naranjo's entry into the home with the intent to falsely imprison members of her family.  (Id. at p. 13.)   Accordingly, we reversed the conviction of attempted murder and the multiple murder special circumstance findings, but affirmed the judgment in all other respects.  (Id. at p. 14.)

On remand following the first appeal, the prosecutor elected not to retry the attempted murder charge and special circumstance allegations, which were then dismissed by the trial court.   After twice continuing the sentencing hearing, the trial court denied a further continuance and sentenced defendant to four consecutive terms of 25 years to life.

C. Second Appeal and Ensuing Proceedings on Remand

In her second appeal, defendant raised various contentions about her sentencing hearing and sentence, including the contentions she raises in the present appeal.   We agreed with her contention that the trial court abused its discretion by denying her motion for a further continuance to permit counsel to prepare adequately for the sentencing hearing, and remanded for resentencing without addressing the merits of the remaining issues.

At the resentencing hearing, defendant requested concurrent sentencing on the grounds that four consecutive terms were effectively equivalent to a term of life without parole, and such a lengthy term was unconstitutionally disproportionate to her culpability.   Defendant cited as mitigating factors her age and immaturity at the time of the crimes, her lack of a prior criminal record, her “passive” and “minor role” in the murders, her vulnerability and gullibility, Naranjo's domination over her, her diagnosis “as mentally ill at the time of the offenses,” and her positive conduct in prison.   Defendant noted, “[A]ll who have considered the psychiatric evidence—including the appellate court—entertain grave doubt as to the mental state and intent of the defendant.   Where a ‘different’ verdict would have been ‘reasonable’ because of the above, concepts of proportionality and individualized sentencing support concurrent terms.”

Citing defendant's letters to Naranjo expressing admiration for killers and suggesting that she and Naranjo take advantage of a minimum school day to “ ‘go kill a few people,’ ” the prosecutor argued that defendant was not the victim of Naranjo, but was “the mastermind” who controlled him and used him as “a dangerous weapon” “to further her means [sic ].”   The prosecutor acknowledged defendant's age at the time of the offenses, but argued that consecutive terms were appropriate and proportional, in that the crimes were “horrific,” there was ample evidence of planning, and the four victims—including three children—were particularly vulnerable when they “were butchered and massacred” in their own home while they slept.

The trial court again sentenced defendant to four consecutive terms of 25 years to life.   The court explained, “I've been doing this for 23 years.   And this is by far the most horrific situation I've ever been involved in.   The facts are really quite unique.   A young woman is left without parents at three years old.   And a family opens their door and brings her into that family and treats her like one of their own.   And the reward is that she decides at 16 years of age to kill some of them.   There's no explanation for it․  [¶] [The prosecutor] said that Monica Diaz bears equal guilt.   The court believes she bears greater guilt.”   The court agreed with the prosecutor that the record showed planning and that the victims were vulnerable.   The court noted that defendant “chose the sanctity and safety of a home to violate it and commit horrific crimes in the very nest offered to succor her and her sister.”   The court stated that the only appropriate sentence was a consecutive life term for each of the four victims who “were massacred in their own home by their own family.”

DISCUSSION

1. Consecutive terms

Defendant challenges the trial court's choice of consecutive terms on two grounds:  as an abuse of discretion and as so disproportionate to her culpability that it violates the state and federal constitutions.   We address each in turn.

a. Abuse of discretion

Under the indeterminate sentencing law, the trial court had complete discretion as to whether to impose consecutive or concurrent sentences.   (People v. Murray (1990) 225 Cal.App.3d 734, 750 (Murray ).)   The commission of separate acts of violence against separate victims is a well-recognized factor supporting consecutive sentencing.  (People v. Shaw (2004) 122 Cal.App.4th 453, 459.)

Defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary.   Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.  (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

Defendant argues that consecutive terms were inappropriate under California Rules of Court, rule 4.425.   But this court rule applies only to determinate sentences.  (Murray, supra, 225 Cal.App.3d at p. 750;  Cal. Rules of Court, rule 4.403.)   Defendant received an indeterminate sentence.

Defendant also argues that the choice of consecutive terms was an abuse of discretion because she “did not personally kill or harm anyone.”   The judge who sentenced defendant heard the trial and his remarks at the sentencing hearing (which included quoting Mrs. Flores's trial testimony) reveal that his recollection of the evidence remained fresh.   Although, as defendant notes, the court stated during defense arguments that “[t]here's absolutely no evidence that Monica Diaz herself lifted a finger to directly harm any of these people,” the court later characterized defendant as bearing “greater guilt” than Naranjo because, in part, of her relationship to the victims and survivors, who had given her a home for many years, and the position of familial trust that she exploited to commit the crimes with Naranjo.   The prior decision of this court in Diaz I placed no legal or factual limitations on the trial court with respect to defendant's role in the crimes, her mental state, her culpability, or the evidence that could be considered in determining an appropriate sentence.   Instead, we merely found the trial court erred by limiting Dr. Doane's testimony and restricting the jury's consideration of the mental state evidence to defendant's post-offense conduct.  (Diaz I, supra, B175089, at pp.   10–11.)   We reversed the attempted murder conviction and special circumstance findings because they were tainted by those errors.  (Id. at pp.   11–12.)   Conversely, we did not reverse any of the first degree murder convictions because the record provided an alternative basis for those convictions that was not affected by the evidentiary and instructional errors.  (Id. at pp.   12–14.)   We did not conclude that the record established that defendant was only an aider and abettor in a felony murder, as defendant argues repeatedly in this appeal, but merely that no retrial of the murder charges was required because she was at least an aider and abettor in a felony murder.   In making a sentencing decision, a trial court may consider the entire record in the case and “any ‘criteria reasonably related to the decision being made.’ ”  (People v. Towne (2008) 44 Cal.4th 63, 85.)   Accordingly, in exercising its discretion at resentencing, the trial court was not required to minimize the role defendant played in the crimes or accept either the psychological evidence or defendant's and Naranjo's testimony that she did not intend for anyone to be killed.   Accordingly, defendant has not established that the trial court abused its discretion.

b. Disproportionality under the Eighth Amendment

Traditionally, Eighth Amendment proportionality analysis focused upon the gravity of the offense and harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for commission of the same crime in other jurisdictions.  (Solem v. Helm (1983) 463 U.S. 277, 292 [103 S.Ct. 3001].)   But in Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179], a majority of the United States Supreme Court concluded that in noncapital cases, the Eighth Amendment either contains only a narrow proportionality principle (Chief Justice Rehnquist and Justices O'Connor and Kennedy) or that it contains no proportionality principle at all (Justices Scalia and Thomas).  (Id. at pp. 20, 31–32.)   Under the narrow proportionality principle recognized by the plurality, the Eighth Amendment does not require strict proportionality between the offense and the resulting sentence and does not mandate comparative analysis within or between jurisdictions.  (Id. at p. 23.)   Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.  (Ibid.) In weighing the gravity of the defendant's offenses, both his criminal history and his current felony must be considered.  (Id. at p. 29.)   The Ewing plurality noted that, outside the capital context, successful challenges to the proportionality of a particular sentence are exceedingly rare.  (Id. at p. 21.)   Without comparing Ewing's third strike sentence of 25 years to life (for shoplifting, with four strike priors) with the punishment for other crimes in California or with the punishment for the same crime in other states, the court found the case before it was not one of the rare cases in which a proportionality challenge could succeed.  (Id. at pp.   29–30.)

Admittedly, defendant's sentence is severe, she was young when she committed the crimes, she has no prior criminal record, and there was evidence to support a finding that she suffered enduring psychological effects of her difficult early childhood years.   But when her sentence is viewed in light of the number and gravity of her commitment offenses, it is not an extreme or grossly disproportionate sentence and does not violate the Eighth Amendment.

Citing several death penalty decisions and People v. Mendez (2010) 188 Cal.App.4th 47, defendant argues that we should apply to her the categorical rule announced in Graham v. Florida (2010) 560 U.S. _ [130 S.Ct. 2011] (Graham ), which held that, “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.”   (Id. at p. _ [130 S.Ct. at p.2030].)   Defendant committed four homicides and was not sentenced to life without possibility of parole.  Graham is inapplicable to her.   The death penalty decisions cited by defendant, including Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183], are inapplicable because defendant was not sentenced to death.  “[T]he penalty of death is different in kind from any other punishment imposed under our system of criminal justice.”  (Gregg v. Georgia (1976) 428 U.S. 153, 188 [96 S.Ct. 2909].)  Mendez, which extended Graham to a sentence of 84 years to life imposed for numerous non-homicide offenses, is inapplicable because defendant committed homicide.

Finally, citing various death penalty decisions, defendant argues that her four murder convictions should fall within the Graham rule because “she did not personally kill, or harm, any of the victims.   Her conviction was sustained on a felony-murder theory that she aided-and-abetted a burglary committed (in her mind) for the purpose of felony false imprisonment ․ to bring the family together, not to see them killed.”   Defendant was not sentenced to death or life in prison without parole and, as previously discussed, she misconstrues our harmless error analysis in Diaz I. Neither the Graham rule nor the cited death penalty decisions apply to defendant.

c. Disproportionality under the California Constitution

The basic test of a cruel or unusual punishment under the California Constitution is whether it is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity.  (People v. Dillon (1983) 34 Cal.3d 441, 478;  In re Lynch (1972) 8 Cal.3d 410, 424.)   The main technique of analysis is to examine the nature of the offense and of the offender.  (Dillon, at p. 479.)   The court must consider both the nature of the offense in the abstract and the facts of the crime in the particular case, including factors such as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences.  (Ibid.) With respect to the nature of the offender, the question is whether the punishment is “grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”  (Ibid.) The record must be viewed in the light most favorable to the sentence (People v. Martinez (1999) 76 Cal.App.4th 489, 496), and defendant must overcome a considerable burden in convincing us that her sentence is disproportionate.  (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196–1197.)

Just as with defendant's Eighth Amendment argument, her view of the record and of her purportedly limited role in the crimes is a narrow one that is skewed in her favor, not viewed in the light most favorable to the sentence.   Given the severity and number of her crimes, the identity and ages of the victims, and the entire record, including her preoffense letters expressing admiration for murderers and suggesting that she and Naranjo should take advantage of a short school day to commit murder, defendant's sentence does not shock the conscience or offend fundamental notions of human dignity, and thus does not violate the California Constitution.

2. Presentence custody credits

The parties agree that the trial court erred by failing to award defendant presentence custody credit at the resentencing hearing, and that defendant is entitled to 3,321 days of credit.   We agree and direct the trial court to issue an amended abstract of judgment reflecting these credits.

DISPOSITION

Defendant's presentence custody credits are modified to reflect a total of 3,321days of presentence custody credit, and the trial court is directed to issue an amended abstract of judgment reflecting this modification.   Defendant is not entitled to any conduct credit.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. “Naranjo was jointly charged with defendant.   He entered a plea and was convicted of four counts of special circumstances murder and one count of attempted premeditated murder.”.  FN1. “Naranjo was jointly charged with defendant.   He entered a plea and was convicted of four counts of special circumstances murder and one count of attempted premeditated murder.”

ROTHSCHILD, J. JOHNSON, J.