Opinion
G052077
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. CORNELL ELIJAH DAVIS, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF2777) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed and remanded with directions. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Cornell Elijah Davis appeals from a judgment after a jury convicted him of premeditated and deliberate attempted murder and carjacking and found true numerous enhancements. Davis argues his sentence, life in prison with the possibility of parole plus 25 years, constituted cruel and unusual punishment under the federal and California Constitutions. After briefing was complete in this case, we invited the parties to file supplemental letter briefs on the effect, if any, of People v. Franklin (2016) 63 Cal.4th 261 (Franklin), on this case. Although we disagree his sentence constituted cruel and unusual punishment, we must remand the matter for further proceedings consistent with this opinion. We affirm the judgment and order a limited remand.
FACTS
At Kerry Boagni's request, Lakisha Crowder arranged to have Boagni loan his sports utility vehicle (SUV) to two men in exchange for crack cocaine or money. Days later, the men informed Boagni that Crowder was going to return his SUV. One evening, Boagni's fiancée drove him to a store to meet Crowder. When they arrived, Crowder was sitting in the SUV's driver's seat, and Davis was sitting in the backseat. Davis was 18 years old. Crowder told Boagni that Davis was her cousin, and she asked Boagni to drive them to her grandmother's house in Cypress. Boagni, willing to do anything to get his SUV, agreed.
Boagni got into the front passenger seat, and Crowder drove for about 50 minutes. During the drive, Boagni said he was not going to have enough gas to drive home, and Davis said he would give him gas money. Crowder told Boagni that she needed to buy a couple things, and she drove to the back parking lot of a Target in Anaheim Hills. Crowder got out and removed personal items from the SUV. Boagni got out and saw clothing on the back seat. As Boagni started to say they left something, Davis shot Boagni in the face. Boagni stumbled to some nearby bushes, and Davis followed him. Davis attacked Boagni, and as they fought, something fell to the ground. When Davis went to retrieve the item, Boagni fled. Boagni called 911 and ran to a market where he collapsed. After a man helped Boagni, an ambulance arrived and took him to the hospital.
Crowder and Davis fled in the SUV. Police pursued them until they crashed. Davis got out of the SUV and ran. He tried to jump over a concrete wall but fell, and police apprehended him. Crowder also tried to flee, but the police apprehended her.
The bullet went through Boagni's left cheek and the roof of his mouth, and exited through his left jaw, leaving a permanent hole. The bullet destroyed his top dental bones and fractured his nasal bones. He lost his top teeth and suffered permanent numbness to the right side of his face.
An information charged Davis with the following: willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), carjacking (§ 215, subd. (a)) (count 2), and possession of a fireman by a felon (§ 29800, subd. (a)(1)) (count 4). As to counts 1 and 2, the information alleged Davis personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury convicted Davis of counts 1 and 2 and found true all the enhancements; the court later dismissed count 4 on the prosecution's motion.
The information also charged Crowder, and her appeal is the subject of a separate proceeding.
All further statutory references are to the Penal Code. --------
The probation report prepared in December 2014 and filed in May 2015 detailed Davis's tumultuous childhood and diagnosis of a mental disorder before recommending a prison sentence. The prosecution filed a sentencing brief asserting Davis's maximum sentence was 34 years to life.
In his sentencing brief, Davis argued the mandatory statutory sentence was cruel and unusual punishment under the federal and California Constitutions and requested the trial court grant probation or alternatively impose a prison sentence excluding section 12022.53's mandatory enhancement. With respect to the circumstances of the offense, Davis claimed that although he was the shooter, Crowder was the mastermind and primary participant in the offense. Acknowledging Boagni suffered great bodily injuries and the charges were serious, Davis noted Boagni had recovered and suffered minimal long-term injuries.
As to the nature of the offender, Davis asserted he was only 18 years old at the time of the offense and he had suffered just two adult convictions, one for driving in willful or wanton disregard for the safety of others while fleeing from a pursuing officer and one for grand theft. Davis submitted Dr. Richard Lettieri's forensic psychological evaluation and other personal information that detailed his tumultuous family life and mental health issues. Davis was born while his mother was incarcerated. Both his parents abused drugs and alcohol, and he was placed in foster care. Davis returned to his parents when he was nine years old, but his father died two years later. Ten close relatives died during this time. These deaths had a profound effect on Davis, and he began to manifest behavioral issues, such as running away, substance abuse, and problems with the law. His mother worked, and he was often alone.
Davis had been diagnosed with attention deficit hyperactivity disorder but received no treatment or medication. While in juvenile camp when he was 16 or 17 years old, a counselor noticed he was exhibiting symptoms of bipolar disorder and depression, but his mother would not consent to treatment. In 2013, mental health professionals at the Orange County jail and UCI Medical Center diagnosed Davis with bipolar disorder. Although Davis was reluctant to continue taking his medication, in part because he was ignorant of his diagnosis and in part because he was feeling better, he eventually understood taking his medication was necessary to alleviate his auditory hallucinations, suicide attempts, and other mental health problems. Since taking his medication, he had not committed any rule violations.
Lettieri reported Davis's IQ was 81, in the "low average" range. He was significantly impaired in terms of attention, concentration, mental and cognitive control, impulse and self-regulation, and had severe deficits in non-verbal memory, storage, and encoding. Lettieri opined the low functioning was likely caused when he was hit on the head with a brick and did not receive treatment, which resulted in persistent headaches and instability in his mood and actions. Lettieri administered the tests in a manner to ensure Davis was not malingering or exaggerating his symptoms.
In terms of interjurisdictional and intrajurisdictional comparisons, Davis noted that in California punishment for crimes more violent and heinous than his offenses was less than the 34 years to life he was facing. Some states did not carry mandatory indeterminate life sentences for second degree murder. He also noted that in New York, individuals under the age of 19 were treated as youthful offenders.
At the sentencing hearing, the trial court stated it had read and considered the relevant documents. After the prosecutor argued the maximum sentence did not constitute cruel and unusual punishment because of the circumstances of the offense, defense counsel conceded the facts of the case were "offensive." Counsel argued Davis's tumultuous childhood and mental disorder lessened his culpability.
As to the nature of the offense, the court opined the circumstances demonstrated it "[was] a cold-blooded, calculated shooting[]" that showed signs of sophistication and planning and Davis was a primary participant. With respect to the nature of the offender, the court stated Davis was on probation when he shot Boagni. The court explained there was "no doubt" Davis had mental health issues, but it added the following: "[H]e's not the first one that appears before me with maybe a dysfunctional background, a bad upbringing, and mental issues. He's not the first one. As a matter of fact, many defendants in the system have exactly those problems. [¶] But to suggest that, since he has these problems, we need to create some sort of fictional sentence and disregard the law just doesn't sit too well with the court --." Later, the court reasoned it appeared that with treatment Davis's mental disorder had "disappeared."
The court added the following: "No one addressed malingering. Like, in other words, you know, he's coming to court to be sentenced on this very serious case; and he knows that there's going to be an attempt to reduce his sentence with the doctor's report. I know that the doctor doesn't think he was malingering, but, of course, we'll never know, will we? We don't know. There's nothing conclusive about that. I view that as a gray area." The court considered it "complete speculation" that if his mental health issues would have been addressed earlier he would not have committed the crimes. The court also stated it was speculative he would not pose a danger to society because he was taking medication because there was no guarantee he would continue to do so.
Finally, the court did not find persuasive Davis's reliance on out-of-state sentencing schemes, particularly New York. The court disagreed with Davis's contention the maximum sentence constituted cruel and unusual punishment and declined to deviate from the applicable statutory scheme. The court sentenced Davis to life in prison with the possibility of parole plus 25 years to life for the section 12022.53, subdivision (d), enhancement. The court imposed and stayed the sentences on the section 12022.53, subdivisions (b) and (c), enhancements, and struck the sentence on the section 12022.7, subdivision (a), enhancement. The court imposed and stayed the sentence on count 2 and its enhancements.
DISCUSSION
I. Cruel & Unusual Punishment
A punishment violates the federal Constitution if it is grossly disproportionate to the severity of the crime. (U.S. Const., 8th Amend.; Graham v. Florida (2010) 560 U.S. 48, 59-60 (Graham).) Similarly, a punishment violates 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.'" (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) In determining whether a sentence is cruel and unusual, California courts: (1) review the nature of the offense or the offender; (2) measure the punishment at issue against punishments prescribed for more serious crimes in the jurisdiction; and (3) measure the punishment at issue against punishments prescribed for the same crime in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).)
Lynch and Dillon merely provide guidelines for a cruel and unusual punishment analysis, and the importance of each prong depends on the facts of each case. (People v. Ayon (1996) 46 Cal.App.4th 385, 398-399 (Ayon), disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) "Determinations whether a punishment is cruel or unusual may be made based on the first prong alone[,]" i.e., the nature of the offense and the offender. (Ayon, supra, 46 Cal.App.4th at p. 399.) A defendant bears a "considerable burden" to demonstrate his sentence amounts to cruel and unusual punishment. (People v. Wingo (1975) 14 Cal.3d 169, 174.) "'Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.' [Citation.]" (People v. Em (2009) 171 Cal.App.4th 964, 971.)
Here, section 664 required a term of life with the possibility of parole for count 1, premeditated and deliberate attempted murder. Section 12022.53, subdivision (d), required a term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury. Davis recognizes courts have rejected facial challenges to section 12022.53 (People v. Gonzales (2001) 87 Cal.App.4th 1, 18 (Gonzales); People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215; People v. Martinez (1999) 76 Cal.App.4th 489, 497-498), and he mounts only an as applied challenge. Additionally, Davis effectively concedes on appeal, as he did below, the circumstances of the offense were particularly egregious. Thus, we will focus on Davis's contention "his diminished mental and cognitive functioning and his overall personal characteristics" compel the conclusion his sentence was cruel and unusual punishment.
Relying on the trial court's statements he was not the first defendant who had a troubled childhood and mental health issues, Davis argues the court failed to meaningfully consider his history and Lettieri's report and provide an individualized assessment. We disagree. At the outset of the hearing, the court stated it read the sentencing briefs and Lettieri's report. Additionally, the court's statements at the hearing demonstrate it was aware of Davis's childhood and mental health issues and considered these circumstances, but ultimately concluded they did not justify a departure from the statutory scheme. In doing so, the court did not, as Davis suggests, conclude he was a malingerer but only that the issue was inconclusive. Finally, the court was justified in its concern there was no guarantee Davis would continue taking his medication, which caused him to improve, because he had previously stopped taking it when he felt better.
We agree Davis's age at the time of the offense, his intelligence level, his upbringing, and his mental health were all relevant factors to consider in choosing a sentence. The record before us demonstrates the court considered all these factors. The fact Davis presented evidence he had a tumultuous childhood and suffered from a mental disorder did not ipso facto require a departure from the statutory scheme. As Davis acknowledges, these factors must be balanced against the nature of the offense. The fact remains Davis personally used a loaded firearm at close range to commit the attempted murder, and it is only by chance he did not kill Boagni when he shot him in the face, maiming him for life. When Boagni managed to run and hide in the bushes, Davis chased him and attacked him. The total sentence of 32 years to life (§ 3046, subd. (a)(1) [minimum period of confinement under life sentence before parole eligibility is seven years]), was not grossly disproportionate to Davis's crimes, regardless of his age, IQ, history, and mental health.
Davis's reliance on Dillon, supra, 34 Cal.3d at pages 450-451, and People v. Mendez (2010) 188 Cal.App.4th 47, 50, 59-60, (Mendez), is misplaced. First, defendants in Dillon and Mendez were both minors and here Davis was an adult. Second, the defendant in Dillon was convicted under the felony-murder rule and the defendant in Mendez was convicted as an aider and abettor. Here, Davis was the shooter.
In Dillon, defendant's age, 17 years old, and his unusual immaturity and childlike demeanor supported the conclusion his life in prison sentence was disproportionate to the offense and his culpability. (Dillon, supra, 34 Cal.3d at pp. 482-483, 487, 489.) In Mendez, defendant's age, 16 years old, and the absence of death or injury to the victim supported the conclusion defendant's de facto life sentence of 84 years was disproportionate to the crimes and his culpability. (Mendez, supra, 188 Cal.App.4th at pp. 65-67 [court concerned record void of any evidence regarding defendant's personal life and upbringing].) Boagni suffered a significant, lifelong injury, and Davis did not receive a life sentence or de facto life sentence; he is eligible for a youth offender parole hearing in 25 years.
Based on the entire record, Davis's sentence does not present an inference of gross disproportionality and it is unnecessary to undertake any interjurisdictional and intrajurisdictional comparisons for purposes of analyzing the claim under the federal Constitution. (See Graham, supra, 560 U.S. at p. 88 (conc. opn. of Roberts, C.J.); Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy, J.).) Additionally, a comparative analysis is not required under California law. (Gonzales, supra, 87 Cal.App.4th at p. 18.) However, we briefly address the remaining two prongs, which reinforce our analysis.
As to the second prong, Davis contends his sentence was more than a sentence for murder, 25 years to life. The Legislature enacted section 12022.53 because it wished to "[treat] firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives." (Martinez, supra, 76 Cal.App.4th at pp. 497-498.) The harsh nature of section 12022.53's enhancements clearly reflects the Legislature's deterrent purpose, and Davis's hypothetical is inapt.
Finally, with respect to the third prong, Davis's reliance on homicide offenses in other jurisdictions is similarly unpersuasive. That New York chooses to treat offenders under the age of 19 as youths (N.Y. Crim. Proc. § 720.10(1)), represents its Legislature's determination 19 is the appropriate age. The California Legislature has made the determination 18 is the appropriate age. (People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221; but see § 3051 [requiring youth offender parole hearing for anyone who committed controlling offense before reaching 23 years of age].) II. Further Proceedings
In response to Graham, supra, 560 U.S. at page 74, Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2464, 2469], and People v. Caballero (2012) 55 Cal.4th 262, 268, cases dealing with sentencing of juvenile offenders, the California Legislature passed Senate Bill No. 260, which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile offenders. Section 3051, subdivision (b), requires the Board of Parole Hearings to conduct a "youth offender parole hearing" during the 15th, 20th, or 25th year of a juvenile offender's incarceration depending on the controlling offense. (§ 3051, subd. (b).) A juvenile offender whose controlling offense carries a term of 25 years to life or greater is "eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(3).) Section 3051, subdivision (h), excludes several categories of juvenile offenders, none of which are applicable here. (§ 3051, subd. (h).) In October 2015, the Legislature amended section 3051, and effective January 1, 2016, anyone who committed his or her controlling offense before reaching 23 years of age is entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1), Stats. 2015, ch. 471, § 1, pp. 4174-4176.)
Recently, the California Supreme Court filed its opinion in Franklin, supra, 63 Cal.4th 261. In Franklin, the trial court sentenced defendant to two mandatory terms of 25 years to life for offenses committed when he was 16 years old. The court held defendant's constitutional challenge to the sentence had been mooted by the enactment of sections 3051 and 4801, which gave defendant the possibility of release after 25 years of imprisonment. (Franklin, supra, 63 Cal.4th at p. 268.) The court concluded that although resentencing was unnecessary, the court had to remand the matter because it could not determine whether defendant had sufficient opportunity in the trial court "to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court concluded as follows: "If the trial court determines that [defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Franklin, supra, 63 Cal.4th at p. 284.)
The parties agree Davis will be entitled to a youth offender parole hearing during his 25th year of incarceration. The remaining issue is whether a limited remand is necessary to permit Davis "to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The Attorney General argues limited remand is unnecessary because Davis already developed the record. Davis counters limited remand is necessary because he did not have a full opportunity to present all mitigating evidence. Out of an abundance of caution we order a limited remand for both parties "to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors . . . in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime . . . ." (Franklin, supra, 63 Cal.4th at p. 284.)
DISPOSITION
The matter is remanded for the limited purpose of affording both parties the opportunity to make an accurate record of Davis's characteristics and circumstances at the time of the offense as set forth in Franklin, supra, 63 Cal.4th 261. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.