Filed 1/13/20 P. v. Bahena CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ESMELING LOPEZ BAHENA,

Defendant and Appellant.

H043905

(Santa Clara County

Super. Ct. No. 213118)
A jury convicted Esmeling Lopez Bahena of special circumstance murder and other offenses. He challenges the trial court’s foundational ruling admitting cell phone records under the business records exception to the hearsay rule. He also argues his mandatory life sentence without the possibility of parole violates equal protection and prohibitions against cruel or unusual punishment. We find no merit to his claims, but we will remand the matter for resentencing in light of the recent statutory amendment to Penal Code section 12022.53, giving the trial court discretion to strike gun enhancements found true by the jury. Although we recognize that application of the new law will have no practical effect on a sentence of life without the possibility of parole, we must reverse the judgment and remand the matter to allow the trial court to determine whether to impose the now discretionary sentencing enhancements.

I. BACKGROUND
II.
Defendant and four companions drove by a group of teenagers gathered in front of an apartment complex. They fired shots into the group, killing one victim and injuring three others. Primitivo Rosas Hernandez, Ramon Gutierrez (who was 17 years old at the time of the crimes), and defendant were indicted for murder alleged to have been committed with gang and drive-by special circumstances (Pen. Code, §§ 187, 190.2, subd. (a)(21)–(22); count 1), five counts of attempted murder with premeditation (Pen. Code, §§ 187, 189, 664, subd. (a); counts 2 – 6), and three counts of shooting at an inhabited dwelling (Pen. Code, § 246; counts 7 – 9). All counts were alleged to have been committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(4), (5)), and during which a principal intentionally used a firearm to inflict great bodily injury or death on a person other than an accomplice (Pen. Code, former § 12022.53, subds. (d), (e)(1)). Ricardo Salvador Diaz and Fernando Mateo Lopez were charged after a preliminary hearing with the same offenses. Defendant’s case was severed after consolidation, and he was tried separately. Diaz entered into a settlement agreement with the prosecution and testified against his co-defendants.

The jury returned guilty verdicts on all counts, and found all allegations true. Defendant was sentenced to life without the possibility of parole, consecutive to five life terms with the possibility of parole, consecutive to 150 years to life.

According to evidence at trial, on November 4, 2011 defendant and four companions, all members of a criminal street gang, drove through Gilroy and Morgan Hill seeking out members of a rival street gang to shoot in retaliation for vandalism. Defendant and Diaz had texted and talked about the plan, and defendant had arranged for firearms. Defendant lived in Morgan Hill. At about 7:30 p.m. he picked up Diaz, then Gutierrez, and the three drove in defendant’s car to a parking lot in Gilroy where they met Hernandez and Lopez. Diaz took over the driving, and from there the group went to Lopez’s apartment where Lopez retrieved a handgun and a rifle. Defendant sat in the front passenger seat, and the others rode in the backseat.

In Gilroy defendant fired the handgun from the car at someone he knew to be a member of the rival gang. Defendant then instructed Diaz to drive to Morgan Hill, and once in Morgan Hill to drive to a park where members of the rival gang were known to gather. As they were leaving the park they saw a group of young people gathered on a corner by an apartment complex considered to be rival gang territory. Five teenagers had just come from a 15th birthday party in the park and were waiting for the celebrant’s grandmother to pick them up. A sixth teenager joined the group as they waited for the ride. Diaz drove by the group slowly, and from the backseat someone fired the rifle into the group. Diaz did not see who handled the rifle, or know whether the handgun had been fired. Fourteen-year-old Tara R. was fatally shot in the neck area. Fourteen-year-old Rosa C. was shot below the ribs. Fourteen-year-old Alicia S. and 15-year-old Christopher L. both were shot in the thigh. A police officer saw defendant’s car run a stop sign as it was fleeing the scene, and located the car about two blocks away at defendant’s apartment where the five were apprehended.

III. DISCUSSION
IV.
A. CELL PHONE RECORDS

The trial court admitted cell phone records subpoenaed from Metro PCS (People’s exhibits 38 through 42) over defendant’s objection that the prosecution had failed to establish that the content was reliable under the business records exception to the hearsay rule. Defendant argues that the trial court’s foundational ruling was an abuse of discretion.

Evidence Code section 1271 provides an exception to the hearsay rule for business records. “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” The trustworthiness of a business record is determined “ ‘ “from the circumstances surrounding the making of the record.” ’ ” (People v. Zavala (2013) 216 Cal.App.4th 242, 246 (Zavala).) A printed spreadsheet of cell phone call data falls within the business records exception “where the underlying data is kept and maintained by a reliable computer program in the regular course of business and the other prongs of Evidence Code section 1271 are met.” (Id. at p. 244.)

The trial court has wide discretion to determine whether a sufficient foundation is presented to qualify evidence as a business record. (Zavala, supra, 216 Cal.App.4th at p. 245.) We review that foundational ruling for a clear abuse of discretion. (People v. Lugashi (1988) 205 Cal.App.3d 632, 639.) “ ‘Where the trial court has determined that the foundation laid was sufficient to support the introduction of evidence under the business records exception, and the record reasonably supports this determination, its conclusion is binding on the appellate court.’ ” (Zavala, at pp. 245–246.)

The Zavala court found that “a computer printout produced by human query of a computer system that maintains cell phone data in the regular course of business” fell within the business records hearsay exception under Evidence Code section 1271. (Zavala, supra, 216 Cal.App.4th at p. 243.) Attempting to distinguish Zavala, defendant contends the Metro PCS records custodian offered an insufficient, conclusory opinion that the text messages and other information were reliable. There, “[t]he evidence at trial established the call data was automatically generated by Sprint’s computer system.” (Id at p. 248.) The custodian of records in Zavala testified that “Sprint uses a computer system that generates records of each phone call at the time it is made and then transmits the data to a call detail record archive,” and “Sprint collects and maintains the call detail records of all its customers for billing purposes and keeps those records in the regular course of business.” (Id. at pp. 244–245.) The records custodian retrieves subpoenaed records by “run[ing] a query of the computer system that maintains the call records, usually by entering a specific telephone number.” (Id. at p. 245.) The computer system then “automatically transfers the data relating to that phone number from the call detail record archive into a Microsoft Excel spreadsheet.” (Ibid.) The custodian in Zavala described that “ ‘a giant set of computers that processes hundreds of thousands of calls every hour[] generates these logs at the time of each call’ ”; “ ‘that information over the period of the next four to six hours is then dumped to a tape backup system and then further dumped into the call detail record archive, at which point we can then run a query against the archive and retrieve that information’ ”; and “the computer records were maintained for billing purposes and had to be accurate as a method of reporting call activity.” (Id. at p. 248)

Here, the Metro PCS custodian testified that he had been employed as a records custodian for several years and was one of a team responsible for the care, custody, and control of records generated in the company’s normal course of business. He explained that subscriber information is entered into a database, stored in the company’s Dallas facility, and access to the information is restricted to trained and authorized personnel. A records specialist extracts subpoenaed information from the company’s database, and provides those records to the custodian who will testify in court. The Metro PCS custodian testified that the company’s database system has the ability to store text messages as the messages are being sent, and the content is appropriately stored and maintained. He explained the importance of accurate record keeping for billing purposes and compliance with the Communications Assistance to Law Enforcement Act (CALEA, 47 U.S.C. §§ 1001–1010). The custodian testified on redirect examination that the computer system records electronic data, and reliability it’s “built into the exact processing and procedure.”

Defendant argues that the prosecution failed to provide “ample testimony as to the mode of the preparation” or “the details of the call data recording systems and how and when the data was collected and stored,” as had been presented in Zavala. (Zavala, supra, 216 Cal.App.4th at p. 248.) Although in Zavala the custodian’s testimony was described as “detailed” and “ample,” it does not follow that a particularized description of the software or hardware involved in the recording process is required, nor that a cell phone carrier records custodian must be a computer engineer. Zavala noted that data automatically recorded by a telecommunications carrier be stored in the regular course of business using a reliable computer program. (Id. at pp. 243–244.) In that respect, the testimony here was functionally the same as the testimony in Zavala, and it meets the foundational threshold of reliability. The Metro PCS custodian testified that the information shown in People’s exhibits 38 through 42 was transmitted in real time and stored in a secure database with restricted access; authorized personnel retrieved the records from the database and provided them to the custodian; and accuracy of the records was important for billing purposes and to comply with federal law. The trial court did not abuse its broad discretion in finding the records sufficiently trustworthy to qualify as a business record. Defendant’s due process claim, premised on a foundational error, also fails.

B. SENTENCING ISSUES

1. The Sentence Does Not Constitute Cruel or Unusual Punishment

Defendant was 18 years old when he participated in the drive-by shootings. He argues that his mandatory sentence of life without the possibility of parole for special circumstance murder constitutes cruel or unusual punishment under the federal and state constitutions (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17) because he was sentenced without consideration of his youth as a mitigating circumstance. Noting the “fundamental differences between juvenile and adult minds” and that age 18 “ ‘is the point where society draws the line for many purposes between childhood and adulthood’ ” including imposition of the death penalty, the Supreme Court in Graham v. Florida (2010) 560 U.S. 48 (Graham) held that a life sentence without the possibility of parole for a juvenile offender committing a non-homicide offense violates the Eighth Amendment’s prohibition against cruel or unusual punishment. (Id. at pp. 68, 74–75, quoting Roper v. Simmons (2005) 543 U.S. 551, 574 (Roper).) Drawing from Roper and Graham, the Supreme Court in Miller v. Alabama (2012) 567 U.S. 460 (Miller) held that a mandatory life sentence without parole for persons who commit crimes before turning 18 categorically violates the Eighth Amendment’s prohibition against cruel or unusual punishment. (Id. at p. 465.) Under Miller, trial courts must take into account “ ‘the mitigating qualities of youth’ ” before sentencing a juvenile to life without the possibility of parole. (Id. at p. 476.)

The Supreme Court recognized in Miller “ ‘that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.’ ” (Miller, supra, 567 U.S. at p 472, fn. 5.) Citing evolving scientific research in brain development, as well as recent California legislation mandating parole hearings at fixed times for defendants convicted of committing crimes before turning 25, defendant argues he has a right under the prohibitions against cruel or unusual punishment to the pre-sentencing hearing mandated by Miller.

Defendant’s sentence is not categorically cruel or unusual under the Eighth Amendment or the California Constitution. Recognizing the line drawn in Roper demarking adulthood at age 18 (Roper, supra, 543 U.S. at p. 574), the California Supreme Court has held that imposition of the death penalty for a crime committed by an 18 year old is not prohibited by the Eighth Amendment or the California constitution’s prohibition against cruel or unusual punishment. (People v. Gamache (2010) 48 Cal.4th 347, 404–405.) Embracing Roper and Gamache, the court in People v. Argeta (2012) 210 Cal.App.4th 1478 rejected the argument that the rationale applicable to sentencing juveniles should apply to an 18 year old convicted of first degree murder. (Id. at p. 1482.) And the court in People v. Abundio (2013) 221 Cal.App.4th 1211 held that life without the possibility of parole for an 18 year old convicted of special circumstance murder was not cruel or unusual under Graham and Miller. (Id. at pp. 1220–1221.) Applying the reasoning of the United States Supreme Court and the California Supreme Court, we conclude that defendant’s age does not categorically bar imposition of a mandatory life without parole sentence.

To the extent defendant asserts a proportionality challenge to his sentence, that claim also fails. A sentence violates the Eighth Amendment if it is “grossly disproportionate” to the severity of the crime. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Courts consider “all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive” under the Eighth Amendment. (Graham, supra, 560 U.S. at p. 59.) A sentence violates the state prohibition against cruel or unusual punishment if “ ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience.’ ” (People v. Dillon (1983) 34 Cal.3d 441, 478, citing In re Lynch (1972) 8 Cal.3d 410, 424.) Under the state constitution, courts consider the nature of the offense and the offender with regard to the degree of danger present to society; compare the challenged punishment with the punishment prescribed for more serious crimes in the jurisdiction; and compare the challenged punishment with punishment for the same offense in other jurisdictions. (In re Lynch, at pp. 425–427; People v. Reyes (2016) 246 Cal.App.4th 62, 86–87.)

Upon careful review of the record, our impression of defendant accords with that of the trial court: Defendant “spearheaded the entire sequence of events[.] … It was his idea. He got others to go along. And he made sure that it was carried out. [¶] He induced a minor … to assist in the commission of this crime. And he clearly planned this crime.” Defendant arranged for the guns, he shot at a man in Gilroy when the crime spree began, and it was at his direction that the group sought out rival gang members in Morgan Hill. Defendant orchestrated the drive-by killing of an innocent 14-year-old girl with premeditation. His sentence is neither disproportionate to the offense, nor does it shock the conscience.

2. The Sentence Does Not Deprive Defendant of Equal Protection

Defendant argues that his sentence violates equal protection under the federal and state constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) because he is similarly situated with other “young adults” who are convicted of first degree murder without special circumstances and receive life sentences with the possibility of parole. He argues that the special circumstances charged in this case “are commonly used simply to make the crime a first degree murder … or to enhance the penalty,” citing Penal Code section 189 (providing for first degree murder by shooting a firearm from a vehicle) and Penal Code section 186.22, subdivision (b) (acting for the benefit of a criminal street gang). An equal protection challenge requires a showing that “ ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; Manduley v. Superior Court (2002) 27 Cal.4th 537, 571–572 (Manduley) [state and federal equal protection challenge analyzed in the same manner].)

We understand defendant to be challenging the prosecutor’s discretion to charge him with special circumstance murder. Prosecutorial discretion to file charges does not violate the federal or state equal protection clauses, absent a showing that the prosecutor’s exercise of discretion has been “ ‘based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (United States v. Batchelder (1979) 442 U.S. 114, 125, fn. 9; Manduley, supra, 27 Cal.4th at p. 549.) Defendant’s unsubstantiated assertion—that in lieu of charging drive-by and gang-related special circumstance murder, prosecutors “commonly” charge first degree murder and a gang enhancement—does not establish an exercise of prosecutorial discretion based on an unjustifiable standard. Defendant’s argument is analogous to the argument rejected in Manduley that a statute violates equal protection by authorizing prosecutors to create two classes of minors accused of committing the same offense—those against whom the prosecutor elects to file criminal charges in criminal court and those against whom the prosecutor elects to file a wardship petition in juvenile court. (Manduley, at pp. 568–571.) Absent a showing of invidious discrimination, “ ‘differential treatment [may be afforded] to an individual depending on whether a prosecutor believes a greater or lesser charge is appropriate.’ ” (Id. at p. 569.)

We also understand defendant to be challenging the classifications in Penal Code section 3051, subdivision (h). Under Penal Code section 3051, subdivision (b)(3), persons convicted of offenses committed before the age of 26 and carrying a 25-years-to-life sentence become eligible for release on parole at a youth offender parole hearing during the 25th year of incarceration. Under Penal Code section 3051, subdivision (h), persons sentenced to life without the possibility of parole are excluded from the youth offender parole process. Defendant argues he is similarly situated with offenders who commit first degree murder between the ages of 18 and 25 and are eligible for a youth offender parole hearing. But the statute differentiates based on a person’s sentence, and persons ineligible for parole because they have been convicted of offenses carrying a mandatory sentence of life without the possibility of parole are not similarly situated to persons convicted of crimes carrying lesser sentences. (People v. Cooper (1996) 43 Cal.App.4th 815, 828–829 [“A defendant who has been convicted of one crime is not in the same position as a defendant who has been convicted of a different crime”].) Even if defendant were similarly situated with those eligible to receive a youth offender parole hearing under Penal Code section 3051, it was rational for the Legislature to differentiate between young adults serving life sentences without the possibility of parole and those serving life sentencing with the possibility of parole, and to provide a mandatory parole hearing process only for the latter. (People v. Wilkinson (2004) 33 Cal.4th 821, 838 [applying rational basis review to an equal protection challenge involving an alleged sentencing disparity].)

Defendant argues he is similarly situated with his co-defendants who were convicted of the same crimes, and there is no rational or compelling reason for the law to treat him differently. But he is not similarly situated to his co-defendants under Penal Code section 3051 (or under Penal Code section 190.2 which mandates either death or life without the possibility of parole for special circumstance murder) because none of the co-defendants was convicted of special circumstance murder. Diaz pleaded guilty to first degree murder without special circumstances and testified against his co-defendants. A jury acquitted Lopez of first degree murder but found him guilty of second degree murder. Hernandez was found not guilty on all counts. Gutierrez has not yet been tried, having only recently been declared competent to stand trial.

C. THE TRIAL COURT MUST EXERCISE ITS DISCRETION UNDER PENAL CODE SECTION 12022.53

Defendant received nine 25-years-to-life gun enhancements under Penal Code section 12022.5, subdivisions (d) and (e). He argues, and the Attorney General concedes, the matter should be remanded for resentencing in light of a statutory amendment giving the trial court discretion to strike or dismiss the enhancements. We will accept the Attorney General’s concession. Defendant was sentenced under Penal Code section 12022.53, subdivision (h) which at that time prohibited a trial court from striking “an allegation under this section or a finding bringing a person within the provisions of this section.” That section was amended while this appeal was pending. Effective January 1, 2018, “in the interest of justice pursuant to Section 1385 and at the time of sentencing,” the trial court may “strike or dismiss an enhancement otherwise required to be imposed by this section.” (Pen. Code, § 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The amendment applies retroactively here because it is ameliorative and defendant’s judgment was not final on its effective date. (In re Estrada (1965) 63 Cal.2d 740, 744–748 [new statute imposing lesser punishment applies retroactively to nonfinal judgments]; People v. Francis (1969) 71 Cal.2d 66, 75–78 [new statute authorizing sentencing discretion retroactively applies to nonfinal judgments]; People v. Robbins (2018) 19 Cal.App.5th 660, 678–679 [applying Pen. Code § 12022.53, subd. (h) retroactively to nonfinal judgment].)

V. DISPOSITION
VI.
The judgment is reversed. The matter is remanded for the trial court to resentence defendant, exercising its discretion under Penal Code section 12022.53, subdivision (h). Upon resentencing, the trial court shall prepare and transmit to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the sentence pronounced for each count. (The original abstract of judgment omitted the sentence for count 9, and did not indicate that the sentence for count 7 would be concurrent to all other counts.)

____________________________________

Grover, J.

WE CONCUR:

____________________________

Elia, Acting P. J.

____________________________

Mihara, J.

H043905 – The People v. Bahena