gno.law

P. v. Loza CA4/1

California Court of Appeal · D060099 · 2013-03-12 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD228746
Trial judge
Howard H. Shore
Outcome
affirmed — Affirmed.
Area
criminal
Panel
McINTYRE (author), Gilbert Nares, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:58Z · confidence high

The trial court affirmed a jury verdict for shooting at an occupied vehicle and other counts, sentencing the defendant to 30 years to life plus 13 years and 4 months, and denied a Romero motion. The Court of Appeal affirmed the judgment, rejecting claims of instructional error regarding a lesser included offense and that the sentence constituted cruel and unusual punishment.

Ruling reviewedStandardThe courtThe model
Failure to instruct jury sua sponte on negligent discharge of a firearm as a lesser included offense to shooting at an occupied vehicle.
“Here, there was no substantial evidence that the offense was less than that charged as the record is clear that Loza intended to shoot at Vejar's truck.”
substantial evidencenot reachedagree with court
The court correctly applied the standard from People v. Breverman, which requires a showing of substantial evidence supporting the lesser offense to trigger the sua sponte duty to instruct. The factual finding that the defendant intentionally shot at a specific occupied vehicle negates the element of gross negligence required for the lesser offense under People v. Ramirez, making the instruction unnecessary.
Sentence of 30 years to life plus 13 years 4 months constitutes cruel and unusual punishment.
“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.”
de novonot reachedagree with court
The court applied the three-prong proportionality test from Ewing v. California and In re Lynch. It correctly distinguished the defendant's case from juvenile life-without-parole precedents like Graham v. Florida because the defendant was an adult at the time of the offense and the sentence, while lengthy, allows for parole eligibility at age 61, which is not equivalent to life without parole.

Authorities

  • relied: People v. Breverman (1998) 19 Cal.4th 142 — The sua sponte duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense.
  • relied: People v. Ramirez (2009) 45 Cal.4th 980 — Shooting at an occupied vehicle requires intentional discharge at a specific target, whereas grossly negligent discharge is aimed at deterring dangerous practices like firing into the air and does not require a specific target.
  • relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Establishes the discretionary authority of trial courts to strike prior strike convictions under the Three Strikes Law.
  • relied: People v. Norman (2003) 109 Cal.App.4th 221 — A defendant waives the right to challenge a sentence as cruel and unusual if the objection is not raised at the sentencing hearing, though appellate courts may exercise discretion to consider it to avoid ineffective assistance claims.
  • relied: Harmelin v. Michigan (1991) 501 U.S. 957 — The Eighth Amendment is violated when a sentence is grossly disproportionate to the crime.
  • relied: In re Lynch (1972) 8 Cal.3d 410 — The California Constitution is violated when punishment is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity.
  • relied: Ewing v. California (2003) 538 U.S. 11 — Establishes a three-factor test for determining whether a sentence is proportionate: gravity of the offense/harshness of penalty, sentences for other crimes in the same jurisdiction, and sentences for the same crime in other jurisdictions.
  • relied: People v. Carmony (2005) 127 Cal.App.4th 1066 — 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.
  • relied: Roper v. Simmons (2005) 543 U.S. 551 — The death penalty cannot be imposed on persons under the age of 18 when their crimes were committed.
  • relied: Graham v. Florida (2010) 560 U.S. 48 — Life-without-parole sentences for juvenile offenders who committed nonhomicide offenses are categorically prohibited by the Eighth Amendment.
  • relied: People v. Mendez (2010) 188 Cal.App.4th 47 — A juvenile's sentence of 84 years was found unconstitutional because it was equivalent to life without parole, as it did not provide a meaningful opportunity for release within the juvenile's lifetime.

The appellate opinion: sound — The opinion is sound because it correctly applies the substantial evidence standard to the lesser included offense claim and accurately distinguishes the defendant's adult status and parole eligibility from the categorical prohibitions on juvenile life-without-parole sentences. The reasoning directly addresses the arguments raised and relies on appropriate authorities for both the instructional and sentencing issues.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Michael Angelo Loza of two counts of unlawful firearm possession, assault with a firearm, and shooting at an occupied motor vehicle, with firearm and gang enhancements found true; after Loza admitted a prior strike, pleaded guilty to a second assault count, and lost a Romero motion, the trial court sentenced him to 30 years to life plus 13 years 4 months. On appeal Loza argued the court should have instructed sua sponte on negligent discharge of a firearm (Pen. Code, § 246.3) as a lesser included offense of § 246, and that his sentence was cruel and unusual; the Court of Appeal rejected both claims and affirmed.

Ruling reviewedStandardThe courtThe model
Trial court's failure to instruct sua sponte on grossly negligent discharge of a firearm (§ 246.3) as a lesser included offense of shooting at an occupied motor vehicle (§ 246)
“Here, there was no substantial evidence that the offense was less than that charged as the record is clear that Loza intended to shoot at Vejar's truck.”
de novocorrectagree with court
The opinion does not expressly label its standard, but it applies Breverman's 'bare legal sufficiency' test, which is a legal question reviewed independently. The Attorney General conceded § 246.3 is a lesser included offense of § 246 (consistent with Ramirez), so the only question was whether substantial evidence supported the lesser but not the greater. The physical evidence—multiple shotgun rounds fired directly into a passing truck, windows shot out, damage from hood to tailgate—leaves no evidentiary basis for a finding that Loza discharged the weapon without a specific target in range, which is what distinguishes § 246.3 from § 246 under Ramirez. The conclusion that no duty to instruct arose follows from the cited authorities.
Imposition of a sentence of 30 years to life plus 13 years 4 months, challenged as cruel and unusual punishment under the Eighth Amendment and article I, section 17 of the California Constitution
“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.”
de novocorrectagree with court
The court correctly noted the claim was forfeited by failure to object at sentencing (Norman) but reached the merits to foreclose an ineffective-assistance claim. It applied the correct frameworks: gross disproportionality under Harmelin/Ewing and the Lynch three-prong test. Because Loza offered no intra- or inter-jurisdictional comparison, the court properly confined analysis to the gravity of the offense and the offender's culpability, and the record—a gang member on juvenile probation with escalating violent history firing a shotgun repeatedly into an occupied vehicle—supports the conclusion that a recidivist-enhanced sentence is not shocking. The rejection of the Roper/Graham/Mendez analogy is correct because Loza was 18 at the time of the offense; those decisions are categorically limited to offenders under 18. The parole-eligibility arithmetic (eligibility around age 61, below the 76-year life expectancy figure used in Mendez) is a reasonable response to the de facto LWOP argument, though the court did not cite the California Supreme Court's then-recent decision in People v. Caballero on functional LWOP sentences.

Authorities

  • relied: People v. Breverman (1998) 19 Cal.4th 142 — Sua sponte duty to instruct on a lesser included offense arises only when there is substantial evidence the defendant is guilty of the lesser but not the greater offense; the court assesses bare legal sufficiency, not weight.
  • relied: People v. Ramirez (2009) 45 Cal.4th 980 — Section 246.3 (grossly negligent discharge) is a lesser included offense of section 246; the greater offense requires discharge at a specific target while the lesser does not require a target within firing range.
  • relied: People v. Norman (2003) 109 Cal.App.4th 221 — A cruel and unusual punishment claim not raised at sentencing is forfeited, but the appellate court may reach the merits to forestall an ineffective assistance of counsel claim.
  • relied: In re Lynch (1972) 8 Cal.3d 410 — Under the California Constitution a punishment is cruel or unusual when so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity; three-prong proportionality test.
  • relied: Ewing v. California (2003) 538 U.S. 11 — Eighth Amendment proportionality analysis considers gravity of offense and harshness of penalty, sentences for other crimes in the same jurisdiction, and sentences for the same crime in other jurisdictions; lengthy recidivist sentences upheld.
  • relied: Harmelin v. Michigan (1991) 501 U.S. 957 — The Eighth Amendment forbids only sentences that are grossly disproportionate to the crime.
  • relied: People v. Mantanez (2002) 98 Cal.App.4th 354 — Whether a punishment is cruel or unusual is a question of law for the appellate court, with disputed facts viewed in the light most favorable to the judgment.
  • relied: People v. Wingo (1975) 14 Cal.3d 169 — A defendant bears a considerable burden in challenging a penalty as cruel or unusual.
  • relied: People v. Carmony (2005) 127 Cal.App.4th 1066 — The gravity of an offense is assessed by comparing the harm caused or threatened and the offender's culpability with the severity of the penalty.
  • relied: Roper v. Simmons (2005) 543 U.S. 551 — The death penalty may not be imposed on offenders who were under 18 when they committed their crimes.
  • relied: Graham v. Florida (2010) 560 U.S. 48 — LWOP for juvenile nonhomicide offenders is categorically barred; juveniles must be given a meaningful opportunity to obtain release.
  • relied: People v. Mendez (2010) 188 Cal.App.4th 47 — An 84-years-to-life sentence for a juvenile nonhomicide offender is the functional equivalent of LWOP and unconstitutional under Graham; uses 76 years as the average life expectancy of an 18-year-old male.
  • relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Trial courts have discretion under section 1385 to strike prior strike allegations in furtherance of justice.
  • missed: People v. Caballero (2012) 55 Cal.4th 262 — A term-of-years sentence that places a juvenile nonhomicide offender's parole eligibility beyond his natural life expectancy is the functional equivalent of LWOP and violates the Eighth Amendment under Graham; the California Supreme Court's controlling treatment of the de facto LWOP argument Loza raised, though inapplicable by its terms because Loza was 18.

The appellate opinion: sound with gaps — The opinion answers both arguments with the governing authorities: Breverman and Ramirez dispose of the lesser included offense claim on a record showing shots fired directly into an occupied truck, and Lynch, Ewing, Harmelin and Norman correctly frame the cruel and unusual punishment claim, which fails on the gravity-of-offense prong and because Loza was an adult when he offended. The court nonetheless did not expressly state its standard of review on the instructional issue and omitted the California Supreme Court's 2012 decision in Caballero, the controlling state authority on functional LWOP sentences, when rejecting Loza's Graham/Mendez analogy, although that omission does not affect the result.

How this analysis was made · dispute it

Opinion

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 an occupied motor vehicle. He also asserts that his sentence is cruel and unusual.

We reject his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 25, 2010, Alex Vejar drove his truck behind a blue pickup truck with a Chargers logo on the rear window. The blue pickup truck was driven by Loza, a self-proclaimed member of a criminal street gang. Loza pulled his truck over to the right side of the street and stopped. As Vejar drove past, Loza shot at Vejar's truck several times.

A police officer described Vejar's truck as a "mess" with "a whole bunch of bullet holes." The back window and the passenger window had been shot out. The truck had shotgun pellet holes in the front hood and rear tailgate. The interior roof of the truck also suffered damage from either the shotgun pellets or broken glass. The gunshot damage was consistent with someone opening fire on the truck as it drove by the shooter. On the street, officers found broken glass, the rubber gasket for a window, two shotgun shells and two shotgun waddings. The expended shells were fired from a shotgun later found in Loza's backyard. Police also found a revolver and holster in Loza's home, with the holster testing positive for Loza's DNA.

2 DISCUSSION

I. Instruction on Lesser Included Offense Loza asserts the trial court erred when it failed to sua sponte instruct the jury regarding negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a)) as a lesser included offense to shooting at an inhabited dwelling or occupied vehicle (Pen. Code, § 246, undesignated statutory references are to this code). The Attorney General concedes that negligent discharge of a firearm is a lesser included offense to shooting at an inhabited dwelling or vehicle, but asserts there is no substantial evidence from which the jury could have concluded that Loza was guilty of the lesser offense. We agree.

"[T]he sua sponte duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 177.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight. [Citations.]" (Ibid.)

The crimes of shooting at an occupied vehicle (§ 246) and grossly negligent discharge of a firearm (§ 246.3) " 'involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result.' " (People v. Ramirez (2009) 45 Cal.4th 980, 986.) The greater crime of shooting at an occupied vehicle "proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result." (Id. at p. 986.) In contrast, the lesser crime of grossly negligent 3 discharge of a firearm is aimed at deterring the dangerous practice of discharging firearms into the air in celebration of festive occasions. (Id. at p. 987.) This lesser crime does not require that a specific target be in the defendant's firing range. (Id. at p. 986.)

Here, there was no substantial evidence that the offense was less than that charged as the record is clear that Loza intended to shoot at Vejar's truck. Loza fired multiple shotgun rounds directly into Vejar's truck as Vejar drove by. The rear window and passenger side window of Vejar's truck were shot out and the truck suffered damage from its hood to its tailgate. Loza necessarily knew, at a minimum, that a driver occupied the truck. Because the evidence established that Loza shot at an occupied vehicle in a manner which presented a significant risk that personal injury or death would result, the trial court had no duty to instruct the jury on the lesser included offense of negligent discharge of a firearm.

II. Cruel and/or Unusual Punishment A. Facts After considering sentencing briefs, the probation report and hearing argument on Loza's motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court denied Loza's Romero motion. The trial court noted that Loza's prior strike conviction was a restaurant robbery that had occurred about three years ago when Loza was a juvenile. It remarked that the instant crime involved violent conduct and stated, "[I]t was obvious that [Loza] did not have any concerns about whether anyone inside the vehicle lived or died."

4 The trial court sentenced Loza to a total prison term of 30 years to life, plus 13 years 4 months, detailing the law and facts that supported its decisions. Before doing so, it commented that Loza had a history of violent criminal behavior dating back to when he was 15 years old, most related to his gang membership, that he "repeatedly failed on juvenile probation," used drugs and alcohol daily and obtained education only while incarcerated.

B. Analysis Loza contends that his sentence for the current offense constitutes cruel and unusual punishment under the federal and California Constitutions. (U.S. Const., 8th Amend. [prohibits infliction of "cruel and unusual" punishment]; Cal. Const., art. I, § 17 [prohibits infliction of "[c]ruel or unusual" punishment].) Loza, however, did not raise this objection at the sentencing hearing and therefore waived it. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) In any event, we exercise our discretion to consider his contention on its merits to avoid a claim of ineffectiveness of counsel.

(Id. at p. 230.)

The Eighth Amendment of the federal Constitution is violated when a sentence is " 'grossly disproportionate' " to the crime. (Harmelin v. Michigan (1991)

501 U.S. 957, 1001.) Similarly, the California Constitution is violated when the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) Nonetheless, lengthy prison sentences imposed under a recidivist statute have survived scrutiny under both 5 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 6 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 7 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.

Cites, in this corpus