California Court of Appeal Mar 12, 2013 No. D060099Unpublished
Filed 3/12/13 P. v. Loza CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D060099
Plaintiff and Respondent,
v. (Super. Ct. No. SCD228746)
MICHAEL ANGELO LOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
A jury found Michael Angelo Loza guilty of two counts of unlawfully
possessing a firearm, and one count each of assault with a firearm and shooting at an
occupied motor vehicle. It found true a firearm enhancement and three gang
enhancements. Loza admitted a prior strike allegation. He also pleaded guilty to
committing assault with a firearm, a count that arose on a different date and on which
the jury had failed to reach a verdict, and a connected prior strike allegation. The
trial court sentenced him to a total prison term of 30 years to life, plus 13 years 4
months.
Loza claims the trial court erred in failing to instruct the jury sua sponte on the
offense of negligent discharge of a firearm as a lesser included offense to shooting at
sentences imposed under a recidivist statute have survived scrutiny under both
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Constitutions. (See, e.g., In re Rosencrantz (1928) 205 Cal. 534, 539–540; People v.
Weaver (1984) 161 Cal.App.3d 119, 125.) " '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. [Citations.]' [Citation.]"
(People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A defendant must overcome
a "considerable burden" when challenging a penalty as cruel or unusual. (People v.
Wingo (1975) 14 Cal.3d 169, 174.)
We examine three factors to determine whether a sentence is proportionate to
the offense and the defendant's circumstances such that it does or does not constitute
cruel and unusual punishment: (1) the gravity of the offense and the harshness of the
penalty; (2) sentences imposed for other crimes in the same jurisdiction; and (3)
sentences imposed for the same crime in other jurisdictions. (Ewing v. California
(2003) 538 U.S. 11, 22; Lynch, supra, 8 Cal.3d at pp. 425–427 [comparable three-
prong test].) Loza does not address any comparison of penalties for similar offenses
in other states, nor does he compare sentences imposed for other crimes in the same
jurisdiction. Accordingly, he fails to demonstrate disproportionality on these
grounds. Accordingly, we analyze the gravity of the offense and the harshness of the
penalty.
"The gravity of an offense can be assessed by comparing the harm caused or
threatened to the victim or society and the culpability of the offender with the
severity of the penalty." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.)
Here, Loza's criminal conduct started at age 15, he has been involved in almost
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continuous and escalating criminal behavior until he committed the instant offense at
age 18, and was on juvenile probation at the time of the crime. His current offense of
shooting at a random passing vehicle is extremely violent and, when viewed in
context with his criminal history, it is evident that Loza presents a danger to society.
In light of the nature of the offense and the offender, Loza's sentence does not shock
the conscience or offend notions of human dignity. (Lynch, supra, 8 Cal.3d at p.
424.)
We reject Loza's suggestion that his situation is similar to a juvenile that has
been sentenced to life without the possibility of parole (LWOP) because he may not
be eligible for parole until about the time he is expected to die. Our high court has
held that the death penalty cannot be imposed on persons under the age of 18 when their
crimes were committed. (Roper v. Simmons (2005) 543 U.S. 551, 578 (Simmons).) It
also held that LWOP sentences for juvenile offenders who committed nonhomicide
offenses are categorically prohibited by the Eighth Amendment. (Graham v. Florida
(2010) 560 U.S. __ [130 S.Ct. 2011, 2030] (Graham).) Also, a California appellate
court found unconstitutional a juvenile's sentence of 84 years because it was equivalent
to LWOP. (People v. Mendez (2010) 188 Cal.App.4th 47, 62–63, 68 (Mendez).)
Loza's reliance on Simmons, Graham and Mendez is misplaced because he was
not a minor when he committed the instant offense and he was not sentenced to the death
penalty. Moreover, Loza is eligible to receive conduct credits for his determinate
sentence of 13 years 4 months (see People v. Sage (1980) 26 Cal.3d 498, 509, fn. 7; In re
Monigold (1983) 139 Cal.App.3d 485, 494; §§ 667, subd. (c)(5), 669), and then serve 30
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years before parole eligibility. Assuming he serves his entire 43-year sentence, he would
be eligible for parole at age 61, which is 15 years below the 76 years of age the court in
Mendez determined to be the average life expectancy for an 18-year-old male. (Mendez,
supra, 188 Cal.App.4th at pp. 62–63.) Fifteen years is enough time to allow Loza to
have a "meaningful opportunity" to be released within his lifetime. (Graham, supra, 560
U.S. at p. __ [130 S.Ct. at p. 2033].)
We conclude that Loza's sentence does not constitute cruel and unusual
punishment under either the state or federal Constitutions.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court was not required to instruct the jury on negligent discharge of a firearm as a lesser included offense because there was no substantial evidence to support it, and that the defendant's sentence was not cruel and unusual punishment.
Issues
Whether the trial court erred in failing to sua sponte instruct the jury on negligent discharge of a firearm as a lesser included offense to shooting at an occupied vehicle.
Whether the defendant's sentence of 30 years to life plus 13 years 4 months constitutes cruel and unusual punishment under the federal and California Constitutions.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In light of the nature of the offense and the offender, Loza's sentence does not shock the conscience or offend notions of human dignity.”
“We conclude that Loza's sentence does not constitute cruel and unusual punishment under either the state or federal Constitutions.”