P. v. Summers

Filed 11/28/05 P. v. Summers CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. HIRAM ELIXER SUMMERS, Defendant and Appellant.

B176847 (Los Angeles County Super. Ct. No. BA260968)

APPEAL from a judgment of the Superior Court of Los Angeles County. Tricia Ann Bigelow, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Hiram Elixer Summers appeals from the judgment entered upon his conviction by jury of first degree murder in which he personally and intentionally discharged a firearm, causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).)[1] He was sentenced to prison for 25 years to life, with a 25-year-to-life firearm enhancement.

Appellant contends (1) that the trial court erred in instructing the jury in accordance with CALJIC No. 2.21.2 that it should disbelieve appellant’s exculpatory testimony as willfully false; (2) that the trial court gave misleading, incomplete and inappropriate instructions on self-defense and the lesser included offense of manslaughter; (3) that the trial court erred in admitting gory autopsy photographs of the victim; (4) that the firearm enhancement should be reversed because the trial court failed to instruct the jury that the affirmative defense of self-defense applied to the enhancement as well as to the underlying charge; (5) that the 25-year-to-life firearm enhancement constitutes cruel and unusual punishment under the circumstances of this case; and (6) that the $14,000 direct victim restitution fine should be stricken because it was not supported by credible evidence.

We affirm.

FACTS

The evidence established that on the morning of February 20, 2004, Joice Harris, a prostitute, was seated in a parked car across the street from appellant’s Los Angeles residence when she saw Leavar Williams knock on appellant’s door. She described Williams as her former lover, and she knew appellant as well. Appellant answered the door. After the two men spoke briefly, appellant came out of the house and swung at Williams, but he missed and fell. As appellant lay on the ground, Williams kicked him twice. Appellant ran into the house and came out with a shotgun. Shameka Davis, Williams’s former girlfriend, was asleep in appellant’s house. Her boyfriend woke her up, telling her Williams and appellant were fighting, and she saw Williams kick appellant once in the face. She then saw appellant come into the house, retrieve his shotgun, and run outside. Appellant fired two shots, and Williams began running down Figueroa Street.

Harris did not see Williams pull a gun or other weapon and testified that he had never carried a weapon for as long as she had known him. Davis testified that while Williams was kicking appellant, she heard Williams say that he had a gun. However, in an interview with a homicide detective shortly after the murder, she did not say that she heard Williams say anything about possessing a gun.

As Williams ran down the street, appellant got into his van and followed him down Figueroa Street. Sedrick Johnson, who was standing outside his apartment on Figueroa, approximately three-tenths of a mile from appellant’s residence, saw Williams walking across the street. Johnson saw Williams throw his arm up in the air. He then saw a van drive by and make a U-turn. Williams walked toward the van. He did not appear to be angry or agitated and he did not have a weapon. As he stood two or three feet from the van, he exchanged words with the driver.[2] Johnson then heard a “pop.” As the van sped off, Williams ran towards Johnson, holding his side and calling for help, stating that he had been shot.

Johnson called 911. Norman Young, Johnson’s cousin, who had not witnessed the shooting, stayed with Williams until the paramedics arrived. Williams had no identification on him and did not give his name. Young did not see any weapon on Williams, and the paramedic who checked his pockets did not find a weapon. When the paramedic asked Williams if he knew who shot him, Williams said that he did not know.

Williams died as a result of a bullet that entered and emerged from his right upper arm and entered his abdomen. The wound was not a contact wound. The bullet traveled slightly backward and downward from right to left. A .22-caliber bullet was recovered from his body. Given the fact that the bullet passed from the right side of his body to the left, it was possible that the right side of his body had been facing the passenger window of the van when he was shot; it was also possible that he was shot as the van was pulling away.

After the shooting, appellant returned to his house. Harris observed that he looked “very hysterical.” Appellant told Davis he had “shot that boy”[3] but he did not know for sure whether he had killed him.

Young told an officer that he had heard that Williams was a member of the Rollin’ 40’s gang.

A search of appellant’s residence pursuant to a search warrant two days later disclosed a loaded .22-caliber rifle in an attic crawl space, and two boxes of .22-caliber ammunition were found under blankets in a trash can. A .22-caliber brass casing was found in the laundry room. Seven cartridge casings were found outside the house, one in the street in front of the house and six in the driveway. The bullet recovered from Williams’s body was compared to three cartridges that were fired from the rifle found in appellant’s home. Because of damage and insufficient markings, it was not possible to determine whether the bullet recovered from Williams’s body had been fired from this rifle. However, it bore general rifling characteristics that were similar to those on the cartridges that were fired from the rifle.

Appellant was arrested on the day of the search of his residence. When told he was being arrested for murder, he exhibited a confused look and said, “Well, you don’t have no witnesses.” He exhibited no injuries.

In defense, appellant testified that on the morning of the shooting, Williams, whom he had never seen before, knocked on the door and asked for Davis, who was his former girlfriend, stating that she owed him money. Appellant told Williams to come back later because Davis was asleep. Williams looked inside and saw Davis on the couch with another man, and he told appellant that if appellant did not “send [Davis] out here,” he would “beat [appellant’s] ass” every time he saw him. Williams then left and walked down the street.

Appellant went outside and Williams, who had his hand in his pocket, rushed him, swung at him, and kicked him. Appellant told his wife to get his “shit.” Williams said, “Tell that bitch she got the same thing coming,” and he told appellant’s wife to “[s]hut the fuck up.”

Appellant left his wife, who was hysterical, on the porch while he went inside and got his rifle. Williams backed out of the yard and said he would be back with his “boys.” Although Williams had his hand in his pocket, appellant did not at any time see him with a gun. As Williams reached a point two houses down from appellant’s residence, appellant, standing in his driveway, fired two shots in Williams’s direction, telling him to wait for the police. Williams said, “Fuck you, I will be back.”

Appellant got into his van and threw his rifle onto the front passenger seat for protection, because he considered Williams to be a threat and wanted to prevent Williams from coming back into the neighborhood. He followed Williams to the corner and stopped, watching him. When Williams turned down Figueroa Street, appellant turned also. Williams signaled “Crip here.” As Williams walked across the street, appellant made a U-turn and parked. Williams, holding his hand in his pocket, walked up to the passenger side window of the van. Appellant claimed that he could not drive away because Williams was crossing in front of his vehicle. Williams leaned into the van, spit, and tried to grab appellant’s rifle with his left hand. Appellant pulled the rifle away with his left hand, lifting it over the steering wheel. As appellant leaned over, he hit the gas pedal and the van hit the curb. The gun went off.

Appellant was looking away when he hit the curb and did not see whether Williams had been hit. He drove off and made a few U-turns, looking for Williams, but did not see him and went home. He later went to the location and saw police tape, so he knew Williams had been injured. He “called to check on [Williams’s] condition” several times. He claimed that he did not intend to kill Williams and that, if he did, he would have shot Williams when Williams was in front of his house or before Williams crossed the street towards his van. He acknowledged that he did not see Williams with a gun.

Appellant admitted he had suffered two misdemeanor convictions of assault with a deadly weapon and two misdemeanor convictions of spousal abuse.

In her statement to police, Harris said that as Williams walked away from appellant’s porch, “there was two shots, bam-bam. [Williams] got shot.” She said that she heard three more shots, went down the street, and saw Williams lying in the street by a car or by a building or driveway.

DISCUSSION

I. CALJIC No. 2.21.2 was properly given even though it could have been applied to appellant’s testimony.

The jury was instructed in accordance with CALJIC No. 2.21.2 as follows: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” Appellant, who represented himself at trial, did not object to this instruction.

Appellant now contends that although this instruction is a correct statement of the law (People v. Beardslee (1991) 53 Cal.3d 68, 94 (Beardslee)), it was erroneously given here because it could only have been applied to his exculpatory testimony. He relies on People v. Lescallett (1981) 123 Cal.App.3d 487, 493 (Lescallett), which stated that “[i]t may be . . . that such an instruction should be avoided where, under the circumstances of the case, it might appear to be directed principally toward a defendant’s exculpatory testimony.”[4]

As respondent points out, appellant has forfeited this issue on appeal in the absence of any objection to CALJIC No. 2.21.2 in the trial court, since the giving of this instruction did not adversely affect his substantial rights so as to make the claim reviewable in the absence of an objection. (People v. Holloway (2004) 33 Cal.4th 96, 152.)

In any event, in rejecting a similar contention with respect to former CALJIC No. 2.21, which contained the language now in CALJIC No. 2.21.2, the Supreme Court reiterated that this instruction merely gives the jury one test to use in resolving credibility disputes, and that “‘[t]he weaknesses in [the defendant’s] testimony should not be ignored or given preferential treatment not granted to the testimony of any other witness.’” (Beardslee, supra, 53 Cal.3d at p. 95.) The dictum in Lescallett on which appellant relies has been rejected by the Supreme Court. (People v. Allison (1989) 48 Cal.3d 879, 895; People v. Turner (1990) 50 Cal.3d 668, 699.) The Supreme Court has expressly held that CALJIC No. 2.21.2 does not reduce the prosecution’s burden of proof, even when the instruction may be applied to the testimony of the defendant. (People v. Cleveland (2004) 32 Cal.4th 704, 751; see People v. Crew (2003) 31 Cal.4th 822, 848.)

Appellant further argues that, since the instruction impacted the prosecution’s burden of proof, it violated his state and federal constitutional rights to trial by jury and due process. Even if this claim were not forfeited in the absence of any objection to the instruction, we would find no error in the giving of the instruction, and therefore no constitutional violation appears. (People v. Roybal (1998) 19 Cal.4th 481, 518, fn. 11.)

II. The challenged self-defense instructions were properly given.

The jury was instructed on principles of self-defense. It was instructed pursuant to CALJIC No. 5.12 that, under specified circumstances, “[t]he killing of another person in self-defense is justifiable and not unlawful . . . .” Among the other self-defense instructions given, without objection, were CALJIC No. 5.52 on the unavailability of self-defense after the danger ceases to exist; CALJIC No. 5.54 on self-defense by an aggressor; and CALJIC No. 5.55 on contrived claims of self-defense. In addition, the jury was instructed pursuant to CALJIC No. 5.17 that an honest but unreasonable belief in the need to defend may reduce the offense to voluntary manslaughter. Appellant contends that CALJIC Nos. 5.52, 5.54 and 5.55 were erroneously given because they were not supported by the evidence, and that CALJIC Nos. 5.17 and 5.52 were erroneous because, in combination, these instructions misled the jury concerning when the lesser included offense of imperfect self-defense manslaughter exists. These contentions lack merit.

The jury was instructed pursuant to CALJIC No. 5.54 as follows: “The right of self-defense is only available to a person who initiated an assault if he has done all the following: [¶] 1. He has actually tried, in good faith, to refuse to continue fighting; [¶] 2. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] 3. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight.”

The trial court must instruct on “every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Appellant contends that there was no evidence that he was the initial aggressor, but, rather, that Williams was the initial aggressor, since the confrontation began with Williams’s assault of appellant, Williams put his hand in his pocket as if to simulate a gun, and Williams approached appellant’s van and tried to grab his rifle. He argues that the instruction suggested to the jury the possibility that appellant was the initial aggressor. To the contrary, this instruction was warranted based on evidence establishing that appellant initiated the confrontation by swinging at Williams on the porch, he fired two shots at him after Williams had started walking down the street away from appellant’s house, he followed Williams in his van as Williams continued to walk away, and he apparently made a U-turn to place his van in Williams’s path.

The jury was instructed pursuant to CALJIC No. 5.55 as follows: “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” Appellant contends that there was no evidence that he deliberately provoked a quarrel with Williams to contrive a false self-defense situation so that he could then shoot Williams, in that the evidence established only that Williams was the aggressor and that the firing of the fatal shot was in response to Williams’s attempt to grab the rifle. As we pointed out, there was evidence establishing that appellant was the aggressor and that he sought a quarrel with Williams, by swinging at him, by firing two shots at Williams as he walked away, by bringing his rifle with him as he followed Williams in his van, and by making a U-turn as Williams walked on Figueroa.

The jury was instructed pursuant to CALJIC No. 5.52 as follows: “The right of self-defense exists only as long as the real or apparent threatened danger continues to exist. When the danger ceases to appear to exist, the right to use force in self-defense ends.” Appellant contends that this instruction was not supported by any evidence, since the evidence established that the danger to him from Williams never ceased at any time before appellant shot him during the struggle over the rifle. This instruction was supported by evidence that established that Williams, who kicked appellant during the scuffle on appellant’s porch, then walked away, after which appellant shot at him and then took his rifle and began to follow him.[5]

The jury was instructed pursuant to CALJIC No. 5.17 as follows: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack or pursuit.”

Appellant contends that the trial court confused the jury with respect to the lesser included offense of imperfect self-defense manslaughter by giving both CALJIC Nos. 5.17 and 5.52, because it is likely that the jury reasoned that when the real or apparent danger posed by Williams ceased, both regular and imperfect self-defense were no longer available to him. Appellant attempts to distinguish People v. Thomas (1990) 219 Cal.App.3d 134, 144-145 (Thomas), where the court rejected a similar claim, by arguing that there is no indication here, as there was in Thomas, that he invited the error, and that there is no indication that in Thomas the trial court gave CALJIC No. 5.54 on self-defense by an aggressor. Alternately, he argues that Thomas is simply wrong to the extent that it assumes that a jury is capable of applying CALJIC No. 5.52 only to self-defense and CALJIC No. 5.17 only to imperfect self-defense manslaughter.

We agree with Thomas that it is not reasonably likely that the jury misconstrued the instructions to arrive at the conclusion appellant suggests. (Thomas, supra, 219 Cal.App.3d at p. 145; see People v. Crew, supra, 31 Cal.4th at p. 848.) As the Thomas court pointed out, CALJIC No. 5.52 “speaks only to the matter of self-defense” and CALJIC No. 5.17, the imperfect self-defense instruction, “is not a self-defense instruction at all. It merely removes the element of malice aforethought, while making it clear the person holding the defined belief still ‘kills unlawfully.’ On the other hand the self-defense instructions given here start out with the words, ‘[i]t is lawful,’ thus showing the essential difference between the concepts on which the jury is being instructed.” (Thomas, supra, 219 Cal.App.3d at p. 145.) In fact, the instruction on imperfect self-defense was not given together with the instructions on the defenses of accident or misfortune and self-defense, but was given with other instructions on voluntary manslaughter.

Since the challenged instructions were properly given, we reject appellant’s claim that cumulative error in the giving of the instructions requires reversal. (People v. Staten (2000) 24 Cal.4th 434, 464.)

III. The autopsy photographs were properly admitted.

When the prosecutor indicated that he would introduce the autopsy photographs of Williams, appellant objected, arguing that “we have the autopsy, the report, and the pictures are just to influence the jury” and that the prosecutor only intended to use them to prejudice the jury. The prosecutor indicated that one photograph, showing Williams’s face, would be used for purposes of identification of Williams by his father and by the coroner, since the paramedics found no identification on Williams and the body had been designated a “John Doe.” The prosecutor stated that the remaining photographs would demonstrate to the jury the path of the bullet and where it entered, to rebut the anticipated defense claim that Williams was facing appellant and exhibiting a weapon when he was shot.

The trial court overruled appellant’s objection, stating, “Generally pictures are allowed in . . . a case like this. They don’t use all of them, but they use some of them in order to show where the bullet traveled, so I am going to overrule your objection.” The prosecutor used the facial autopsy photograph while examining Williams’s father, Harris, Davis, and the paramedic and a photograph of Williams while alive in his examination of Williams’s father, Johnson and Young. He referred to the other five autopsy photographs while examining the paramedic.

Appellant contends that the admission of the autopsy photographs violated Evidence Code section 352 because their prejudicial effect outweighed their probative value. He asserts that Williams’s father identified his son by means of another photograph and that there was ample uncontested testimony explaining the location and nature of the bullet wound, so that the autopsy photographs provided nothing more than an appeal to the emotions of the jury. This contention is without merit.

Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The trial court has broad discretion in ruling on the admissibility of photographs of a victim, and its exercise of discretion will not be upset “unless the probative value of the photographs clearly is outweighed by their prejudicial effect.” (People v. Carter (2005) 36 Cal.4th 1114, 1167 (Carter).)

The photograph of Williams’s face was properly used to establish that Williams was the subject of the autopsy, since there had been no identification on Williams’ person. (See People v. Martinez (2003) 31 Cal.4th 673, 692.) Although, as appellant observes, another photograph of Williams’s face was available and was used for identification purposes with some of the witnesses, the autopsy photograph was not unduly prejudicial. The photographs depicting the gunshot wounds were highly relevant to “‘illustrate and corroborate’” the testimony of the coroner and the paramedic, which served to explain the circumstances of the killing, and the fact that the witnesses testified to the matters depicted in the photographs did not render the photographs cumulative. (Carter, supra, 36 Cal.4th at p. 1168; People v. Samuels (2005) 36 Cal.4th 96, 123-124.) We have examined the photographs, which are unpleasant but are not in any sense gory or inflammatory. (Carter, supra, at p. 1168.) The trial court’s ruling, in response to appellant’s argument that the photographs were unduly prejudicial, was sufficient to demonstrate that the trial court impliedly weighed the probative value of the photographs against their prejudicial effect, and its determination was within the sound exercise of its discretion. (See Carter, supra, at p. 1170; People v. Riel (2000) 22 Cal.4th 1153, 1187-1188.)

IV. The section 12022.53, subdivision (d) enhancement was properly imposed.

Appellant was sentenced to a 25-year-to-life enhancement for the discharge of a firearm, causing death, pursuant to section 12022.53, subdivision (d). Section 12022.53, subdivision (l) provides that “[t]he enhancements specified in this section shall not apply to the lawful use or discharge of a firearm . . . by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5.” Appellant contends that the Legislature did not intend that the section 12022.53 enhancement apply where the shooting was done in either perfect or imperfect self-defense, and therefore that the finding and enhancement imposed under this section must be stricken. Alternatively, he contends that the trial court erred in failing to instruct the jury that the affirmative defense of self-defense applied to the firearm enhancement as well as to the murder charge.

Appellant first asserts that, although subdivision (l) of the statute expressly provides only that the enhancements in section 12022.53 shall not apply to the lawful use of a firearm in lawful self-defense, the Legislature “must have intended this provision to apply to imperfect self-defense as well, since any other construction would render subdivision (l) meaningless, surplusage, and serve no purpose.” He argues that actual self-defense provides a complete defense to a crime and therefore, if the jury found that a defendant acted in actual self-defense, the defendant would have been acquitted; subdivision (l) would therefore be surplusage.

This claim was rejected in People v. Watie (2002) 100 Cal.App.4th 866 (Watie). The court there traced the legislative history of Assembly Bill No. 4, ultimately enacted as section 12022.53, which at one point included manslaughter as an enumerated offense and excepted the enhancement when the use or discharge of the firearm resulted from imperfect self-defense. The bill was subsequently amended to delete manslaughter from the list of enumerated felonies and to delete the reference to imperfect self-defense. (Watie, supra, at pp. 884-885.)

In rejecting a contention identical to appellant’s, the Watie court stated, “From the legislative history, defendant concludes that the Legislature never intended for the enhancement to apply to people who commit the qualifying crime while acting in either lawful (perfect), or unlawful (i.e., imperfect), self-defense. On the first point we agree; the statute expressly, if perhaps unnecessarily, provides that self-defense prevents application of the enhancement. As to the second point, the legislative history demonstrates that the Legislature was acutely aware of the interplay between manslaughter and imperfect self-defense. The Legislature’s use of perfect and imperfect self-defense in the various versions of the statute demonstrates it knew how to include and exclude these concepts when it so chose. If the Legislature did not want the statute to apply in those cases where a defendant committed a[n enumerated offense] while acting with an actual, but unreasonable, belief in the need to defend himself, it was capable of writing the statute to say so. It did not. We will not rewrite this statute to include that which the Legislature chose to leave out.” (Watie, supra, 100 Cal.App.4th at p. 885.) We concur in this analysis.

Appellant’s second argument, that the trial court should have instructed the jury on self-defense as a defense to the firearm enhancement, is unavailing. The jury was fully instructed on principles of self-defense as to the murder charge, and it rejected this defense, finding appellant guilty beyond a reasonable doubt of first degree murder in the commission of which he discharged a firearm, causing death. The absence of an instruction on self-defense as a defense to the firearm discharge allegation was therefore harmless under the Chapman beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24; see Watie, supra, 100 Cal.App.4th at pp. 885-886.)

Appellant argues that Watie should not be followed because it did not address the effect of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) on the instructional issue. In Apprendi, the Supreme Court stated, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Appellant argues that the Sixth Amendment violation occasioned by the complete omission of any self-defense instruction as to the firearm allegation is reversible per se. Citing Neder v. United States (1999) 527 U.S. 1, 8-9 (Neder), he asserts that a failure to instruct is not reversible per se only when it pertains to an uncontested element, and the self-defense issue was contested. He also argues that since the omission of the self-defense instruction relieved the prosecution of its burden of proof, he was denied due process, and such error was not harmless beyond a reasonable doubt. We disagree.

In Neder, the Supreme Court observed, “‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ [Citation.] Indeed, we have found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ [Citations.]” (Neder, supra, 527 U.S. at p. 8.)

In People v. Sengpadychith (2001) 26 Cal.4th 316, our Supreme Court, considering the dictates of Apprendi, held that the failure to instruct on an element of a criminal street gang allegation was subject to the Chapman standard of error where the enhancement increased the penalty for the charged offense. (People v. Sengpadychith, supra, at p. 320.) In People v. Scott (2001) 91 Cal.App.4th 1197, Division 3 of this district discussed Neder in the context of an Apprendi claim where the trial court failed entirely to instruct on the elements of a section 12022.5, subdivision (a)(1) firearm use allegation. The Scott court found the complete omission of an instruction on the firearm allegation subject to the Chapman harmless error standard. (People v. Scott, supra, at pp. 1209-1211.) Here, the omission of an instruction on a defense to the firearm allegation was also subject to the Chapman standard. Although the self-defense claim was not uncontested, the jury decided the issue adversely to appellant in finding him guilty of first degree murder. The error was therefore harmless beyond a reasonable doubt.

V. The 25-year-to-life firearm enhancement pursuant to section 12022.53, subdivision (d) did not constitute cruel and unusual punishment.

Appellant contends that the 25-year-to-life section 12022.53, subdivision (d) enhancement for the discharge of the firearm, causing death, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution, either on its face or as applied to him.[6] He argues that, since his sentence was unconstitutional, the trial court had the discretion to strike the allegation or impose a concurrent sentence and that the matter should be remanded for resentencing. Assuming that this issue is reviewable in the absence of an objection in the trial court, we find it lacking in merit.

A punishment may be unconstitutional if it is grossly disproportionate to the offense. To determine whether the sentence is disproportionate, the court examines the nature of the offense and of the offender, “with particular regard to the degree of danger both present to society.” (In re Lynch (1972) 8 Cal.3d 410, 425-426 (Lynch); see also Solem v. Helm (1983) 463 U.S. 277, 290-300.) In analyzing the nature of the offender, we consider his “age, prior criminality, personal characteristics, and state of mind,” and in analyzing the nature of the offense we consider the circumstances of the particular offense such as the defendant’s motive, the way the crime was committed, the extent of his involvement and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.)

In the abstract, the crime of which appellant was convicted, first degree murder, is among the most serious offenses of which one can be convicted. Appellant urges us to consider his state of mind and the circumstances preceding the shooting. He argues that the killing was unintended and that the victim was the aggressor. However, the jury rejected his self-defense and unreasonable self-defense claims, as well as his claim that the gun went off accidentally, and found that he committed first degree murder during which he personally and intentionally fired a handgun. In fact, when we view the disputed facts, as we must, in the light most favorable to the judgment (People v. Martinez (1999) 76 Cal.App.4th 489, 496), the evidence established that appellant first fired two shots at the victim as the victim was walking away from his house, then took his rifle and stalked the victim before intentionally shooting him.

Contrary to his assertion that he had “no prior criminal history whatsoever,” appellant had a sustained juvenile petition for robbery and a 1972 felony conviction for kidnapping, and in the 10 years immediately preceding this brutal attack he sustained four convictions of violent offenses, two for assault with a deadly weapon and two for spousal abuse.

The crime of which appellant was convicted, murder, is one of the felonies enumerated in section 12022.53, subdivision (a), and it was committed with use of a firearm, which the Legislature has indicated is sufficiently dangerous in the commission of such a felony to warrant greater punishment. (People v. Martinez, supra, 76 Cal.App.4th at pp. 497-498.) Nothing in the facts of this case demonstrate any mitigating circumstances whatsoever, and imposition of the firearm discharge enhancement is fully commensurate with appellant’s culpability. Although appellant asserts that, given his age, his sentence is tantamount to a sentence of life without the possibility of parole, the record reflects that appellant is clearly a danger to society. (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.)

Since the penalty is not “‘out of all proportion to the offense’” and is not so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity,” it will be upheld. (Lynch, supra, 8 Cal.3d at pp. 423-424.) These same factors similarly compel the conclusion that the firearm enhancement does not violate the Eighth Amendment of the United States Constitution. As Division 7 of this district stated in People v. Riva (2003) 112 Cal.App.4th 981, 1003 (fn. omitted), “If 50 years to life for stealing $153 worth of videotapes is not cruel and unusual punishment [Lockyer v. Andrade (2003) 538 U.S. 63], neither is any sentence which could legally be imposed here.” (See also People v. Martinez, supra, 76 Cal.App.4th at pp. 496-497; People v. Crooks (1997) 55 Cal.App.4th 797, 805-806.)

VI. The restitution order was supported by the evidence.

At sentencing, the trial court stated that it had read, considered and signed the preconviction probation report, which indicated that Williams’s father did not want restitution from appellant.[7] After imposing the sentence, the trial court, referring to Williams’s father, stated, “[T]he victim has indicated he has incurred $14,000 of funeral expenses, and I will impose that as victim restitution by the defendant to the victim in this case, Mr. Williams.”[8]

Although a defendant has the right to a hearing to dispute the determination of the amount of victim restitution (§ 1202.4, subd. (f)(1)), appellant, who represented himself, voiced no objection to this order and did not request a hearing on the matter.

On appeal, appellant contends that the $14,000 in victim restitution should be stricken because it was based upon a hearsay statement by the trial court and was not supported by credible evidence. Appellant asserts that, despite his failure to object, the issue is not waived because the trial court exceeded its statutory authority in imposing the fine and it was thus an unauthorized sentence. However, it is well established that because a restitution order involves the exercise of discretion, issues concerning the determination of restitution amounts fall within the rule set forth in People v. Scott (1994) 9 Cal.4th 331, 356, that “complaints about the manner in which the trial court exercises its sentencing discretion . . . cannot be raised for the first time on appeal.” (People v. O’Neal (2004) 122 Cal.App.4th 817, 820; People v. Riccio (1996) 42 Cal.App.4th 995, 1003.)

Application of the forfeiture rule is particularly appropriate here, since in the absence of any objection, we do not know whether, in indicating that he had incurred $14,000 of funeral expenses, Williams’s father made a verbal statement to the trial court or presented documents. Had an objection been lodged, Williams’s father, who was present in court, could have explained the basis for his request and might have provided documentary evidence to support his claim; the trial court could have modified the order if appellant established that a modification was warranted. (§ 1202.4, subd. (f)(1).)

In any event, there is no merit to appellant’s argument that the restitution order was not based on credible evidence because it was based solely on Williams’s father’s unsupported statement to the trial court. Section 1202.4, subdivision (f), provides that restitution to the victim shall be required “based on the amount of loss claimed by the victim or victims or any other showing to the court.” The victim’s uncorroborated opinion as to the value of his property may support a restitution order. (People v. Foster (1993) 14 Cal.App.4th 939, 948.) Moreover, since appellant did not request a hearing, he cannot be heard to complain that he was not afforded one.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

_______________________, J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Johnson testified that he did not see Williams leaning into the van. However, he told an officer that Williams leaned his head into the van.

[3] Williams was 23 years old at the time of his death. Appellant was 51.

[4] The defendant in Lescallett did not testify. (Lescallett, supra, at p. 493.)

[5] As respondent points out, appellant has no complaint about the giving of a similar instruction, CALJIC No. 5.53, which stated that “[t]he right of self-defense ends when there is no longer any apparent danger of further violence on the part of an assailant.”

[6] Appellant does not set forth any argument as to how it is unconstitutional on its face.

[7] In the report, under “Victim Statement,” the probation officer indicated that Williams’s father “stated he ‘only wants justice to be done’. He feels the defendant should go to state prison and indicated that ‘twenty five to life sounds fair’. He wants no restitution from the defendant.” Two handwritten lines appear, one crossing out the line beginning with the word “prison” and ending with the words “sounds fair’. He” and the other under that line but not across any of the remaining typed words.

[8] For purposes of section 1202.4, “victim” includes the actual victim’s immediate surviving family. (§ 1202.4, subd. (k)(1).)