P. v. Gillespie

Filed 5/24/17 P. v. Gillespie 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL GILLESPIE,
Defendant and Appellant.
D069389
(Super. Ct. No. SCD258034)
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth
K. So, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon
W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
In this gang-related case, an information jointly charged Samuel Gillespie and his
codefendants Dominique Abdullah and Keshawn Price with certain felony offenses.

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Abdullah and Price pleaded guilty to shooting at an occupied vehicle (Pen. Code,1 § 246)
and admitted allegations that they each had suffered a serious felony prior and a strike
prior.2 A jury found Gillespie guilty of attempted murder (count 2, §§ 664 & 187, subd.
(a)) and shooting at an occupied vehicle (count 3). The jury found true the allegation
under section 664, subdivision, (a) (section 664(a)) that the attempted murder was willful,
deliberate, and premeditated within the meaning of section 189; that Gillespie was a
principal in the commission of the attempted murder and at least one principal personally
discharged a firearm during the commission of that offense (§ 12022.53, subds. (c) &
(e)(1)); and that he committed the crime for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)). As to count 3, the jury
found to be true the allegation that Gillespie committed that offense for the benefit of, at
the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)).
Gillespie admitted allegations that he had suffered a prison prior, a serious felony prior,
and a strike prior.
After denying Gillespie's motion for a new trial, the court sentenced him to a total
prison term of 25 years plus 30 years to life. Gillespie timely appealed, contending: (1)
the court prejudicially abused its discretion in denying his motion for a new trial; (2) the
jury's finding that the attempted murder was willful, deliberate, and premeditated must be
stricken and the crime reduced to attempted murder; (3) his punishment is cruel or
1 All further statutory references are to the Penal Code.
2 Abdullah and Price are not parties to this appeal.

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unusual; and (4) the disparity between his sentence and the punishment imposed on his
codefendants Price and Abdullah violates his rights to due process and equal protection.
For reasons we shall explain, we reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
In the early morning hours of August 16, 2014, the victim in this case, Curtis R.,3
who was a member of the Lil Africa Piru criminal street gang, drove to the neighborhood
of Imperial and 50th Street looking for a friend. After he parked and got out of his car,
Curtis saw four people, wearing hooded sweatshirts, hiding behind some cars and
sneaking up on him. He believed the men were from a rival gang because he was in rival
gang territory and he knew he was not supposed to be there. Curtis heard the sound of a
gun being loaded. He quickly got back into his car and started backing up. As he did so,
he heard gunshots and saw a man with a gun in his hand approaching his car. His back
window was shot out. Curtis managed to drive to a safe area where he called the police.
Numerous police officers were nearby when the shooting occurred. San Diego
Police Officer Rogelio Medina and his partner, Officer Blake Williams, testified they
heard about 15 gunshots, first one and then a volley after a pause, from different caliber
semiautomatic firearms. When Officers Medina and Williams looked in the direction of
the gunfire, they saw four males wearing hooded sweatshirts run down an alley and then
drive away in a white four-door Chevrolet sedan. The officers got back into their patrol
3 The victim in this case is referred to by his first name and last initial, and
thereafter by his first name only, to provide some measure of anonymity. (Cal. Rules of
Court, rule 8.90(b).)

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car and pursued the men. Officer Medina used the radio to report a description of the
Chevrolet and the direction it was traveling.
Officer Randy Burgess responded to the radio call and saw the Chevrolet slowly
driving towards him. The car stopped in front of Officer Burgess's patrol car, the
passenger door opened, and a man wearing dark clothing got out of the car and ran away.
The driver also got out of the car and fled. Officer Burgess chased the men on foot.
Shortly thereafter, Officers Medina and Williams located the Chevrolet by Officer
Burgess's patrol car. Officer Medina stayed with the Chevrolet to secure it while Officer
Williams assisted Officer Burgess in pursuing the males who had fled.
Inside the Chevrolet the police found Gillespie's red cellphone on the driver's seat
and a red backpack on the front passenger's seat that contained a nine-millimeter
semiautomatic handgun, a .22-caliber semiautomatic handgun and Gillespie's automobile
insurance card. Police found a red bandana between the two front seats and a pair of
gloves on the front passenger floorboard. Police linked both semiautomatic handguns to
two gang-related shootings. The Chevrolet was registered to Gillespie and Gillespie's
prints were found on the trunk lid. A latent print examiner found no usable prints on the
firearms.
After other police officers arrived at the abandoned Chevrolet, Officer Medina
drove his patrol car toward a location where, according to a radio report, a suspect had
been arrested. A resident flagged him down and informed him there was a firearm in his
backyard. Officer Medina recovered a .45-caliber semiautomatic handgun from the
swimming pool in the backyard.

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Police found seven .45-caliber cartridge casings and three nine-millimeter
cartridge casings at the shooting scene. The .45-caliber casings were fired from the .45-
caliber handgun recovered from the pool and the nine-millimeter casings were fired from
the nine-millimeter handgun inside the red backpack found in the Chevrolet.
Officer Kyle Okeson assisted in the search for the suspects and found Price, a
Skyline gang member hiding near the scene. He was wearing only black shoes, a black
T-shirt and boxer shorts. DNA on a pair of jeans found by the police and on the gloves
found in the Chevrolet matched Price's DNA, and Price was a possible major contributor
to the DNA mixture found on the .45-caliber handgun. Police detected gunpowder
residue on Price's hands.
Abdullah, a documented Skyline Piru gang member, was also arrested near the
crime scene. He was wearing a black hooded sweatshirt and blue jeans. Surveillance
video showed Gillespie running through a backyard with Abdullah. Police arrested
Gillespie three days after the shooting. His Facebook page contained a picture of the
Chevrolet abandoned at the scene. During a search of Gillespie's bedroom, the police
found a certificate of title signed by Gillespie releasing his interest in the Chevrolet; a
box for the red cellphone that was found on the driver's seat of the Chevrolet; and, in his
closet, numerous items of clothing that were red, one of the colors (along with black) of
the Skyline gang.
The prosecution's gang expert, opined that even though Gillespie had no law
enforcement gang contacts prior to this incident, he was a Skyline gang member on the
date of the shooting. The gang expert based her opinion on Gillespie's law enforcement

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history, field interviews and confidential informants, the terminology he used in text
messages, his tattoos, and the color of his clothing. She also opined that Gillespie
committed gang-related crimes for the benefit of the Skyline criminal street gang.
DISCUSSION
I. DENIAL OF NEW TRIAL MOTION
A. Background
In November 2015, five months after he was convicted in June of that year,
Gillespie filed a motion claiming he was entitled to a new trial under section 1181,
subdivision (8) (section 1181(8)), on the ground he discovered new exculpatory evidence,
material to his defense, that he could not have discovered and produced at trial through
the exercise of reasonable diligence. As an exhibit to his motion, Gillespie attached a
copy of an interview report prepared by Karen Gould, Gillespie's Alternate Public
Defender investigator, which contained her notes concerning Abdullah's statements made
to her from prison after Gillespie's trial. The report indicates that, according to Abdullah,
Gillespie did not know a shooting was going to occur on the night of the incident because
there had been no discussion in Gillespie's car about who had a weapon as the car
approached the scene at 50th Street, and Abdullah was certain that Gillespie did not have
a weapon that night. Abdullah told Gould that he and a man named Jarius started
shooting at a group of men in self-defense after the other group shot at them first.
According to Abdullah, Gillespie ran to his car as soon as the shooting began and
Gillespie and Price were already in the car when he and Jarius ran back to Gillespie's car.
Abdullah claimed that Gillespie and Jarius, who had a backpack, were in the front and

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Price and Abdullah were in the back. Gillespie was angry with Jarius and told Jarius he
had gotten them into the situation and that Gillespie and the other three men ran from the
car together after they drove away and then saw a police car coming.
The court denied Gillespie's motion for a new trial, stating in part: "I don't believe
this is . . . new evidence, as set forth in the Penal Code, which would support the granting
of a new trial." The court also stated: "Quite honestly, I'm not sure that any of this
evidence would have affected the verdict[,] given what I know about the state of the
evidence, what the officers saw, and the other physical evidence that was out there." The
court also found sufficient evidence supported the jury's verdicts.
B. Applicable Legal Principles
A trial court is statutorily authorized to grant a defendant's motion for a new trial
in a criminal case "[w]hen new evidence is discovered material to the defendant, and
which he could not, with reasonable diligence, have discovered and produced at the trial."
(§ 1181(8).)4 A motion for a new trial based on newly discovered evidence is viewed
with disfavor, and denial of such a motion rarely will result in a reversal on appeal.
(People v. Fairchild (1962) 209 Cal.App.2d 82, 84.)
4 Section 1181(8) provides in relevant part: "When a verdict has been
rendered . . . against the defendant, the court may, upon his application, grant a new trial,
in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to
the defendant, and which he could not, with reasonable diligence, have discovered and
produced at the trial. When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing, in support thereof, the
affidavits of the witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as, under all circumstances of the case, may seem
reasonable. "

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In order to obtain a new trial under section 1181(8), the moving defendant must
show (1) the evidence, and not simply its materiality, is newly discovered; (2) the
evidence is not merely cumulative; (3) the defendant in the exercise of reasonable
diligence could not have discovered and produced the evidence at trial; (4) the newly
discovered evidence is of such strength that a result more favorable to the defendant is
probable if the new evidence is admitted on retrial; and (5) these facts are shown by the
best evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15, 42-43;
6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Judgment, §§ 103 & 105,
pp. 145, 146.) The trial court may consider the credibility of the evidence in determining
whether introduction of the proffered evidence in a new trial would render a more
favorable result reasonably probable. (Howard, at p. 43.) A trial court's denial of a
motion for a new trial will not be disturbed on appeal unless a manifest and unmistakable
abuse of discretion is clearly shown. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
C. Analysis
Gillespie contends that Abdullah's statements to Gould following his conviction
qualify as newly discovered evidence. He asserts the trial court prejudicially abused its
discretion in denying his new trial motion because this new evidence, if admitted on
retrial, would result in a more favorable outcome. For purposes of analysis we shall
assume, without deciding, that Abdullah's statements to Gould which Gould summarized

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in her report,5 is newly discovered, that it is material and not merely cumulative, and that
Gillespie in the exercise of reasonable diligence could not have discovered and produced
the evidence at his trial.
Having made these assumptions and, after considering the credibility of
Abdullah's proffered, we cannot conclude that if he were to testify at a new trial in a
manner consistent with Gould's notes concerning those statements, his testimony would
be of such persuasive strength that it is reasonably probable Gillespie would obtain a
more favorable outcome. The record shows that when Abdullah pleaded guilty to
shooting at an occupied vehicle he also admitted allegations that he had suffered a prior
serious felony conviction and a prior strike conviction. The prosecution would be
entitled to use Abdullah's prior felony record to attack his credibility if he were to testify
on Gillespie's behalf during a retrial. (Evid. Code, § 788; People v. Howard, supra, 51
Cal.4th at p. 43 [court may consider credibility of proffered evidence in determining
whether its admission in a new trial would render a more favorable result reasonably
probable].)
5 Gillespie did not submit an affidavit signed by Abdullah, the witness Gillespie
expects will testify at a retrial in this matter, as required by section 1181(8). As noted, he
attached to his new trial motion a copy of Gould's interview report containing her notes
concerning statements Abdullah made to her. The prosecution did not challenge
Gillespie's failure to comply with the statutory affidavit requirement. At the hearing on
Gillespie's motion for a new trial, the prosecutor told the court, "Your Honor, I don't
think that there is any newly discovered evidence in this particular case. With regard to
[whether] it's an affidavit or not, I didn't contest that in my [opposition] papers. [T]he
People would prefer to go forward at this time with the state of the attached statement."
(Italics added.)

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In addition, several of Abdullah's statements to Gould were inconsistent with
credible eyewitness testimony at Gillespie's trial. For example, Abdullah indicated that
Gillespie and Price ran back to Gillespie's car without Abdullah and Jarius as soon as the
first shot was fired. However, Officers Medina and Williams testified that, when they
looked in the direction of the gunfire, they saw four males run down an alley and then
drive away in a Chevrolet sedan.
In another proffered statement, Abdullah claimed that only he and Jarius shot at
the other group at the scene. However, the prosecution's forensic evidence showed that
gunpowder residue was detected on Price's hands and not on Abdullah's hands. The
record shows Price made a statement against penal interest to Gould that he was armed
with a .45-caliber handgun and fired it during the incident. (Evid. Code, § 1230.) In
addition, the prosecution's forensic evidence showed that Price was a possible major
contributor to the DNA mixture found on the .45-caliber handgun recovered from a
swimming pool after the shooting.
In another proffered statement, Abdullah claimed that the backpack found on the
front passenger seat of the Chevrolet after the shooting, which contained two
semiautomatic handguns, belonged to Jarius. However, Officer David Ramirez testified
that he found Gillespie's insurance card inside the backpack.
For all of the foregoing reasons, we conclude there is little, if any, chance that
Gillespie would obtain a more favorable result if Abdullah were to testify at a new trial in
a manner consistent with Gould's notes concerning the statements he made to her.

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Accordingly, we conclude the court acted well within its broad discretion when it denied
Gillespie's motion for a new trial.
II. JURY'S FINDING UNDER SECTION 664(A) THAT THE ATTEMPTED MURDER
WAS WILLFUL, DELIBERATE, AND PREMEDITATED
A. Background
During her closing arguments, the prosecutor argued that Gillespie was guilty of
the attempted murder of Curtis under any one of three theories: (1) "by direct action" as a
perpetrator if he was "one of the shooters";6 (2) as a direct aider and abettor if he "knew
of the plan to kill" and intentionally "took any action to facilitate that plan" by providing
and driving his car and/or providing firearms and "back up"; or (3) as an aider and abettor
under the natural and probable consequences doctrine if the nontarget offense of
attempted murder was a reasonably foreseeable, and thus a natural and probable,
consequence of any one of three target offenses (discharge of a firearm at an occupied
vehicle the lesser-included offense of negligent discharge of a firearm, or assault with a
deadly weapon). The jury found Gillespie guilty of attempting to murder Curtis. It also
found true the allegation under section 664(a) that the attempted murder was willful,
deliberate, and premeditated within the meaning of section 189.7
6 Although the prosecutor argued that Gillespie "may [have been]" the shooter who
perpetrated the attempted murder, she later acknowledged in her closing argument that
"in all likelihood" Price was the one who fired at Curtis while Curtis was sitting in his
car.
7 For convenience, we refer to the attempted murder conviction with the attached
true finding under section 664(a) as "attempted murder with premeditation."

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B. Analysis
Citing People v. Chiu (2014) 59 Cal.4th 155 (Chiu), Gillespie contends that the
premeditation finding attached to his attempted murder conviction must be stricken, and
reduced to attempted murder. Gillespie asserts he is entitled to this relief because he was
"convicted under the natural and probable consequences theory that he aided and abetted
[target] offenses that reasonably and foreseeably led to the [nontarget] attempt to kill
[Curtis]." Gillespie concedes that Chiu addresses aiding and abetting a premeditated
murder, but asserts the Chiu analysis and public policy considerations logically apply to
attempted murder with premeditation under the natural and probable consequence
doctrine. He contends that Chiu, not People v. Favor (2012) 54 Cal.4th 868 (Favor) is
controlling because Chiu called into question and implicitly undermined and overruled
Favor. In light of the public policy rationale in Chiu, he further contends that the court
committed instructional error and he was convicted of attempted murder with
premeditation on a legally insufficient basis in violation of his right to due process under
the Fifth and Fourteenth Amendments to the federal Constitution.
The Attorney General responds that Gillespie was properly convicted of
premeditated attempted murder as either a direct aider and abettor or pursuant to the
natural and probable consequences doctrine, and is not entitled to reversal of the
judgment on the attempted murder conviction because "the California Supreme Court's
holding in Chiu did not overrule, call into doubt, or in any manner alter either the analysis
or the holding of its decision in Favor." Citing Auto Equity Sales, Inc. v. Superior Court

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(1962) 57 Cal.2d 450, 455 (Auto Equity), the Attorney General argues this court is bound
by Favor, supra, 54 Cal.4th 868.
We conclude that (1) our analysis is governed by Favor, not Chiu; and (2)
assuming without deciding that the jury found Gillespie guilty of attempted murder as an
aider and abettor under the natural and probable consequences doctrine, the trial court
properly imposed the life sentence under section 664(a) for his conviction of attempted
murder.8
In Favor, our high court held that an aider and abettor may be found to have
committed an attempted murder with premeditation and deliberation on the basis of the
natural and probable consequences doctrine. (Favor, supra, 54 Cal.4th at p. 872.) In
Chiu, our high court acknowledged this holding when considering the question of how to
instruct the jury on aider and abettor liability for first degree premeditated murder under
the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at p. 162.)
Chiu held that an aider and abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine, but may be convicted of
first degree premeditated murder based on direct aiding and abetting principles. (Id. at
pp. 158-159, 166.) The court explained that although first degree and second degree
8 Review has been granted in a case addressing attempted murder with
premeditation, People v. Mateo (Feb. 10, 2016, B258333 [nonpub. opn.], on an aiding
and abetting issue involving the natural and probable consequence doctrine. (Review
granted May 11, 2016, S232674.) The order granting review stated: "In other words,
should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v.
United States (2013) ––– U.S. ––––[133 S.Ct. 2151] and People v. Chiu (2014) 59
Cal.4th 155?"

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murder share the common elements of an "unlawful killing of a human being with malice
aforethought, [first degree murder] has the additional elements of willfulness,
premeditation, and deliberation, which trigger a heightened penalty"; "[t]hat mental state
is uniquely subjective and personal"; and "the connection between the defendant's
culpability and the perpetrator's premeditative state is too attenuated to impose aider and
abettor liability for first degree murder under the natural and probable consequences
doctrine." (Id. at p. 166.)
Because a defendant cannot be convicted of first degree premeditated murder
under the natural and probable consequences doctrine, the question in Chiu was whether
giving the instructions was harmless. "When a trial court instructs a jury on two theories
of guilt, one of which was legally correct and one legally incorrect, reversal is required
unless there is a basis in the record to find that the verdict was based on a valid ground."
(Chiu, supra, 59 Cal.4th at p. 167.) In Chiu, the court found no such valid ground.
Instead, it found from jurors' questions and comments the jury "may have been focusing
on the natural and probable consequence theory of aiding and abetting." (Id. at p. 168.)
Our high court limited its ruling in Chiu to first degree premeditated murder (ibid.; id. at
pp. 166-167), and contrasted this holding with its ruling in Favor, in which it held that an
aider and abettor may be found to have committed an attempted murder with
premeditation and deliberation on the basis of the natural and probable consequences
doctrine (Favor, at p. 872; Chiu, at pp. 162-163).
We need not weigh in on the merits of Favor's continuing validity. Chiu
distinguished and did not overrule Favor. Until our high court overrules Favor it remains

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good law and resolves Gillespie's arguments that he must personally foresee the
premeditated nature of the attempted murder and cannot be sentenced to life
imprisonment without a jury finding of that fact. (Auto Equity, supra, 57 Cal.2d at p.
455.)
III. CRUEL AND UNUSUAL PUNISHMENT
Gillespie contends his sentence of 25 years plus 30 years to life in prison for a
non-homicide offense is the functional equivalent of a sentence of life in prison without
the possibility of parole. He claims this sentence is grossly disproportionate to his
offenses and constitutes cruel or unusual punishment in violation of the prohibition
against such punishment in the federal and state Constitutions.
The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. (U.S. Const., 8th Amend.) The California Constitution prohibits
cruel or unusual punishment. (Cal. Const., art. I, § 17.) Under either constitution, a
sentence may be unconstitutional if it is grossly disproportionate to the crime committed.
(Graham v. Florida (2010) 560 U.S. 48, 59-60; People v. Dillon (1983) 34 Cal.3d 441,
478.) Whether a sentence constitutes cruel or unusual punishment is a question of law
that we review de novo, viewing the underlying facts in the light most favorable to the
judgment. (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.)
A sentence violates California's prohibition on cruel or unusual punishment if the
punishment is so disproportionate to the crime for which it was imposed that it "shocks

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the conscience and offends fundamental notions of human dignity." (In re Lynch (1972)
8 Cal.3d 410, 424.) We apply a three-part test to determine whether a particular sentence
is disproportionate to the offense for which it is imposed. First, we examine "the nature
of the offense and/or the offender, with particular regard to the degree of danger both
present to society." (Id. at p. 425.) Second, we compare the punishment imposed with
punishments prescribed by California law for more serious offenses. (Id. at pp. 426-427.)
Third, we compare the punishment imposed with punishments prescribed by other
jurisdictions for the same offense. (Id. at pp. 427-429.) "Only in the rarest of cases could
a court declare that the length of a sentence mandated by the Legislature is
unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Gillespie does not address any comparison of penalties for similar offenses in
other states. Accordingly, he fails to demonstrate disproportionality on that basis. Nor
has he shown the sentences imposed for other crimes in California are disproportional.
Rather, he limited his argument to the first factor identified in Lynch—the nature of the
offense and the offender. (In re Lynch, supra, 8 Cal.3d at p. 425.)
The jury found Gillespie guilty of attempting to murder Curtis and shooting at an
occupied vehicle with attached gang enhancements for both offenses. Regarding the
attempted murder, the jury found true the allegation that the crime was willful, deliberate,
and premeditate, and that Gillespie was a principal in the commission of the crime and at
least one other principal personally discharged a firearm during the commission of that
offense. The evidence in this case establishes that even if Gillespie personally was not
armed during the willful, deliberate, premeditated, and gang-related attempt to murder

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Curtis, he actively participated in its commission. Assuming without deciding the jury
found him guilty as an aider and abettor under the natural and probable consequences
doctrine, as Gillespie contends, the Legislature has determined that an aider and abettor is
liable as a principal to the same extent as another principal who was the actual
perpetrator. (§ 31.) The Legislature has also "determined that if the attempted murder is
willful, deliberate and premeditated, the offense is sufficiently serious to justify a life
sentence." (People v. Morales (1992) 5 Cal.App.4th 917, 930; see § 664(a).) "The fact
that [Curtis] was [not] injured . . . does not lessen the seriousness of the offense."
(Morales, at p. 930.) In a senseless, apparently random and unprovoked gang-related
attack, Gillespie's cohorts fired multiple gunshots at Curtis. Accordingly, the nature of
Gillespie's criminal conduct is egregious.
Additionally, the nature of the offender in this case also supports the imposition of
the sentence prescribed by the Legislature for his crimes. Gillespie was almost 22 years
of age when he and his gang confederates committed these offenses. He acknowledges
he was "not a juvenile offender." His criminal history establishes he is a recidivist felon.
In 2008 a felony juvenile petition was sustained for vehicle theft. About a month later,
Gillespie was charged with robbing five young victims, and a felony juvenile petition was
sustained as to one count of robbery. After violating probation numerous times and being
sent to Camp Barrett for 365 days, Gillespie committed a residential burglary and was
found to have a concealed firearm in his car in 2011. In 2012 he engaged in a high-speed
pursuit during which a backpack containing a 12-gauge shotgun and five shells were
thrown out of the car by another occupant. After serving four years eight months in

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prison, he was released on parole and two months later committed the offenses in this
case with at least two other documented gang members.
After considering the nature of both the offender and his crimes we conclude his
sentence of 25 years plus 30 years to life in prison does not violate the California
Constitution's prohibition of cruel or unusual punishment because it is not "so
disproportionate to the crime[s] for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) The
sentence also does not violate the federal Constitution's prohibition of cruel or unusual
punishment because it is not "grossly disproportionate" to the severity of the crimes.
(Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.).)
Under the United States Constitution "[t]he Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it forbids only extreme
sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan, supra,
501 U.S. at p. 1001 (conc. opn. of Kennedy, J.), citing Solem v. Helm (1983) 463 U.S.
277, 288.) Successful grossly disproportionate challenges are " 'exceedingly rare' " and
appear only in an " 'extreme' " case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.) We
are not convinced that this is such a case.
IV. DUE PROCESS AND EQUAL PROTECTION
Last, Gillespie contends "[t]he disparity in the 15 year determinate sentences being
served by [his] more culpable co-defendants [(Price and Abdullah)]—with more violent
criminal histories—who pleaded guilty, and Gillespie's de facto sentence of life without
parole is arbitrary, unfair, and violates his rights to due process and equal protection"

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under the Fifth and Fourteenth Amendments to the United States Constitution, and article
1, section 7 of the California Constitution. We reject this contention.
Abdullah and Price pleaded guilty to shooting at an occupied vehicle and admitted
allegations that they each had suffered a serious felony prior and a strike prior. Each
received a 15-year prison term. Gillespie declined an offer to plead guilty to the same
charge with a stipulated maximum term of 15 years in prison. Gillespie's claims of
constitutional error are premised in part on the assertion that his life sentence is unfair
compared to the 15-year term of his cohorts. This assertion is unavailing because
Gillespie disregards the obvious fact that, unlike his confederates, he was convicted not
only for shooting at an occupied vehicle, but also for attempted murder and the related
section 664(a) penalty allegation that the attempted murder was willful, deliberate, and
premeditated. The penalty prescribed by the Legislature for that conviction and penalty
finding is life in prison with the possibility of parole. (§ 664(a).)
Suggesting his sentence violates his due process rights because it is the result of
vindictiveness, Gillespie asserts in his reply brief that "[o]ne of the fundamental
principles of our justice system is that a defendant cannot be punished for exercising a
constitutional right and that vindictiveness is to play no role in the sentencing of
defendants." Gillespie also asserts that, "[w]hile a guilty plea may justify leniency, a
defendant cannot be punished with a more onerous sentence merely because he exercised
his constitutional right to a jury trial" (italics added). First, Gillespie concedes that "[t]he
record does not reflect that the court vindictively sentenced [him] to a much lengthier
sentence, essentially life without parole, because he did not plead guilty." As we have

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explained, Gillespie received the sentence prescribed by the Legislature for the crimes he
committed, the allegations he admitted and the allegations the jury found to be true.
Gillespie has not shown, and cannot demonstrate, that his sentence is more onerous when
compared to his confederate's sentences, merely because he exercised his constitutional
right to a jury trial.
Gillespie's claim that his sentence violates his right to equal protection of the laws
also fails. "To demonstrate a denial of equal protection, it must first be shown that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner." (People v. Goslar (1999) 70 Cal.App.4th 270, 276, italics added.) The
"similarly situated" prerequisite means that an equal protection claim cannot succeed, and
does not require further analysis, unless there is some showing that the two groups are
sufficiently similar with respect to the purpose of the law at issue that some level of
scrutiny is required in order to determine whether the distinction is justified. (People v.
Gonzalez (2001) 87 Cal.App.4th 1, 13.) This claim appears to be premised on Gillespie's
suggestion that he is similarly situated to his codefendants, Price and Abdullah, who
received a lesser sentence. Gillespie has not shown, and cannot establish, that he is
similarly situated to Price and Abdullah, who received lesser sentences for lesser crimes.
For all of the foregoing reasons, we affirm the judgment.

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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.

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