Certified for Partial Publication
CHARLES S. VOGEL, P.J.
A jury convicted appellant Juan M. Martinez of attempted murder and found pursuant to Penal Code section 12022.53, subdivision (d)
Angered at a store owner who forced appellant out of his store, appellant returned with a .22 caliber rifle and shot the owner, who suffered great bodily injury in the stomach. On appeal appellant contends the trial court erred in admitting certain evidence despite a pretrial discovery violation, the evidence is insufficient to show that appellant intended to kill, and imposition of the 25-year-to-life enhancement pursuant to section 12022.53 is cruel
The victim, Francisco Perez, owned a furniture store in partnership with Maria Navarette. Appellant had been Ms. Navarette's boyfriend for about eight months. Appellant had been in the store regularly because of her, and there had been problems with his breaking things. On the afternoon of February 22, 1998, appellant was in the store and Ms. Navarette asked appellant to leave. Appellant refused to leave. Mr. Perez also told appellant to leave, because it appeared appellant was assaulting Ms. Navarette. When appellant again refused to leave, Mr. Perez grabbed appellant by the shoulder and pushed him out the door.
Appellant said "bad words" to Mr. Perez and said he was going to come back and kill him. Appellant left and obtained a .22 caliber rifle which he loaded. About 30 to 45 minutes later, appellant returned to the store and entered, holding the rifle pointed in Mr. Perez's direction, and said he was going to kill him. Mr. Perez picked up a telephone from a desk in order to call 911, but appellant fired a shot which hit the desk phone and caused Mr. Perez to drop the receiver.
Mr. Perez then moved in a direction which put Ms. Navarette, who was seated at the desk, between appellant and him. Appellant told Ms. Navarette to move. Mr. Perez dove toward the floor, and appellant shot him. The bullet went through Mr. Perez's leg and entered his stomach. When Mr. Perez stood back up, appellant ran out of the store. Mr. Perez was hospitalized 13 days and had 3 surgeries as a result of the shooting.
Appellant was arrested at home and led police to the rifle, which he admitted shooting at Mr. Perez. Appellant told the police he was angry at Mr. Perez, with whom he had "problems" before, because Mr. Perez slapped him, embarrassed him in front of his girlfriend, and "treated him like a kid" in throwing him out of the store. Appellant told the police he obtained the rifle from an acquaintance after telling him he was going to shoot a person who disrespected him in front of his girlfriend. They loaded the gun, then appellant returned to the store to kill Mr. Perez. Appellant admitted he shot the telephone then shot Mr. Perez in the stomach. Appellant said he would have shot Mr. Perez more times if Ms. Navarette had not been in the way.
Appellant presented no defense testimony but his counsel cross-examined the prosecution witnesses as to whether appellant had threatened to "get" or "shoot" Mr. Perez as distinguished from "kill" him.
SUFFICIENCY OF EVIDENCE
CRUEL OR UNUSUAL PUNISHMENT
The trial court imposed a low term of 5 years for attempted murder (§§ 187, subd. (a), 664, subd. (a)) plus an enhancement of 25 years to life, pursuant to section 12022.53. Section 12022.53, also known as the "10-20-life" law, was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of designated felonies. The Legislature found "that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime." (Stats.1997, ch. 503, § 1.) Among the designated felonies is appellant's crime, attempted murder. (§ 12022.53, subds. (a)(1) [murder], (a)(18) ["[a]ny attempt to commit a crime listed in this subdivision"].)
Appellant contends that section 12022.53, either on its face or as applied to him, constitutes cruel or unusual punishment under either the United States or California Constitutions. (U.S. Const., Eighth Amend.; Cal. Const., art. I, § 17.)
The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. (Harmelin v. Michigan, supra, 501 U.S. at p. 998, 111 S.Ct. 2680 (cone. op. of Kennedy, J.); People
Appellant, focusing only on subdivision (d), contends "[t]he statute is constitutionally defective because it does not recognize significant gradations of culpability depending on the severity of the current offense, and does not take into consideration mitigating factors." This is not a fair description of the statute. Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies.
Appellant next addresses the two-pronged test involving the nature of the offense and the nature of the offender.
As to the nature of the offender, the probation report shows the following: appellant was born in July 1975, which means he was 23 at the time of the crime (February 1998) and of sentencing. There was no available record of any juvenile offenses. The only adult criminal history was a conviction for driving without a license, for which appellant was sentenced to time served in March 1998. Although appellant told the probation officer he did not intend to kill the victim, the probation officer was unimpressed. She recommended, "The very serious nature of this crime clearly indicates that the defendant has a callous disregard for the safety and well-being of others.... [¶] Despite defendant's lack of prior criminal record his behavior in this current offense, in which he seriously injured the victim, and his lack of remorse, must be viewed as extremely violent and dangerous behavior. For the safety of the victim and community members, the defendant should be removed from the community for an extended period of time." Three family members and a friend, however, told a defense investigator that they had never seen appellant get violent or possess a gun or other weapon.
Although the evidence is uncontradicted that appellant had no significant prior criminal record, this is not determinative. (E.g., People v. Crooks (1997) 55 Cal.App.4th 797, 807, 64 Cal.Rptr.2d 236.) At age 23 appellant was not a minor, and there was no evidence he was unusually immature emotionally or intellectually as the defendant in People v. Dillon, supra, 34 Cal.3d at pages 482, 483, 486, and 488, 194 Cal.Rptr. 390, 668 P.2d 697. (People v. Young (1992) 11 Cal.App.4th 1299, 1310, 15 Cal.Rptr.2d 30.)
We conclude the record does not show that the statutory punishment is grossly disproportionate in light of the nature of the offense and the nature of the offender.
Finally, appellant suggests we consider a second technique of analysis, a comparison of the punishment for this offense with the statutory punishment in California for other offenses. (People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38,
Appellant's analogy is inapt, and his argument is unpersuasive. Sections 12022 and 12022.7 may not be compared to section 12022.53, because they enhance the sentence for "any felony," whereas section 12022.53 is limited to designated felonies of a very serious type. (Fn.5, ante.) More significantly, the Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, "substantially longer prison sentences must be imposed ... in order to protect our citizens and to deter violent crime." The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. (Note (1998) 29 McGeorge L.Rev. 531, 533-534; People v. Aguilar (1973) 32 Cal.App.3d 478, 486, 108 Cal.Rptr. 179; People v. Morgan (1973) 36 Cal.App.3d 444, 449, 111 Cal.Rptr. 548.) That is this law's purpose. (Stats.1997, ch. 503, § 1; Assem. Com. on Public Safety, Committee Analysis of Assem. Bill No. 4 (April 8, 1997) at p. 2, quoting author ["With the 10-20-life provisions of AB 4, we are sending another clear message: If you use a gun to commit a crime, you're going to jail, and you're staying there."].) The distinction drawn by appellant does not render section 12022.53 cruel or unusual punishment. (People v. Rutkowsky (1975) 53 Cal.App.3d 1069,1074-1075, 126 Cal.Rptr. 104.)
The judgment is affirmed.
EPSTEIN, J., and HASTINGS, J., concur.