Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA036204, Lisa Chung, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Dukwan William Adderley appeals the judgment entered following his conviction by jury of first degree murder committed while Adderley was engaged in the commission of attempted robbery in which a principal was armed with a handgun and attempted robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17), § 12022, subd. (a)(1), 664/211.) The trial court sentenced Adderley to life without the possibility of parole plus one year in state prison.
We reject Adderley’s claims of jury coercion, error in permitting additional argument after the jury indicated it had reached an impasse and insufficiency of the evidence to support the special circumstance allegation. However, we find merit in Adderley’s assertion the trial court was unaware of the extent of its sentencing discretion. Specifically, the record reflects the trial court believed a term of life without the possibility of parole was mandatory in this case. Because Adderley was 16 years of age at the time he committed the charged special circumstance murder, Penal Code section 190.5, subdivision (b) permitted the trial court, in the exercise of its discretion, to impose a term of 25 years to life, rather than life without the possibility of parole. We therefore reverse the judgment and remand the matter for resentencing to permit the trial court to consider whether to exercise its discretion under Penal Code section 190.5, subdivision (b).
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s evidence.
In April of 2006, Marvin Ramsey had known 16-year-old Adderley and 25-year-old Jamar Manard for a year and a year and a half, respectively, and he was on friendly terms with each of them. On April 15, 2006, Ramsey was at the home of Rochelle Newman in Lancaster with Adderley and Manard. After they left Newman’s home, Manard telephoned a taxi company and requested a cab at Manard’s mother’s former address on 12th Street East, which was approximately three blocks from Newman’s home. Manard said, “We’re going to rob” the cab driver and asked if Adderley and Ramsey wanted to go. Adderley was “iffy about it” but Ramsey said no and told Adderley and Manard not to do it. Manard said, “I’m going with or without you guys.” Manard crossed the street and started walking in the direction of his former residence. Adderley eventually made “googly eyes” and crossed the street to join Manard. Ramsey recalled either Manard or Adderley had a handgun that evening. Manard did not threaten Ramsey to become involved in the robbery or call him a coward for not participating. After Manard and Adderley left, Ramsey returned to Newman’s home.
At approximately 9:00 p.m., Jesse Pulido was seated in a parked car on Fenhold Street. Pulido heard a pop followed by tires squealing. Pulido then saw a taxicab crash into a parked car. Two males exited the back seat of the cab, one from each side, and ran from the scene. Edward Sweatt, the driver of the cab, was slumped over the driver’s seat with a fatal gunshot wound to the head.
Later that evening, Manard telephoned Ramsey and said, “We killed a taxi man.” Manard subsequently arrived at Newman’s home, followed by Adderley about 30 minutes later. Before Adderley arrived, Manard said they were in the back seat of the cab and had driven no more than three blocks when Adderley produced the gun. The cab driver “put the pedal to the metal” and said, “We’re all going to die tonight.” Adderley then “froze or something” and Manard told Adderley, “Go on, do it. Do it.” Ramsey did not remember if Manard said he put his finger on the trigger or not, but he said he grabbed the gun with Adderley and “they [both] shot him.” When Adderley arrived at Newman’s residence, Manard said Adderley killed the cab driver. Adderley did not object to this statement. In fact, later that night Adderley said, “I did it.”
On cross-examination, Ramsey admitted that in April of 2006 he regularly used marijuana, ecstasy and alcohol. Ramsey initially was a suspect in this case. He was interviewed by the police numerous times and, during one of the interviews, Manard was present. Ramsey told the story about two hands on the gun for the first time more than a year after the incident.
Rochelle Newman testified Manard borrowed her cell phone sometime in April of 2006, and walked off with it accompanied by Ramsey and Adderley. On September 1, 2006, Newman told a detective she found her cell phone in her mailbox the next day.
James Scott testified that in 2006 he was convicted of possessing a loaded firearm. In August of 2006, Scott agreed to cooperate in Adderley’s case in order to obtain a reduced sentence in his firearm case. In 2006, Scott had a conversation with Adderley, whom he loved like a brother, about a taxicab robbery. Adderley said he and Manard got into a cab Manard had called. Manard went into a house and returned with a gun which he gave Adderley. When they started moving, Manard demanded the cab driver’s money. Adderley had the gun “maybe just trying to scare the taxi man to give him the money. Then I guess the taxi man said, ‘no, we’re all about to die tonight, ’ and pushed on the gas.” Manard told Adderley to kill the driver but Adderley “froze up.” Manard then “put his hands around the gun and pulled the trigger.” Scott claimed Adderley thought they were going to a friend’s house and he was unaware of the robbery plan before Manard gave him the handgun.
2. Jury deliberations.
Jury deliberations commenced on November 7, 2008. That same day, the jury asked for a reading of the testimony of Ramsey, Newman and Scott. The trial court ordered the court reporter to read the requested testimony to the jury and the alternate jurors.
On November 10, 2008, the trial court excused Juror No. 11 due to a family emergency, seated an alternate juror and instructed the jury to “disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.”
Later that morning, the jury asked when Ramsey recalled that Manard “put his hand on the gun [Adderley was holding] and pulled the trigger.” The trial court conferred with counsel and directed the court reporter to read the relevant portions of Ramsey’s testimony.
On November 12, 2008, during the morning session, the jury asked whether Manard’s mother’s lived on 12th Street East at the time of the offense. Counsel agreed to advise the jury Manard’s mother no longer lived at the address.
Later in the same session, Juror No. 12, the foreperson, indicated the jury was hung on all counts and allegations. The trial court noted the jury had not been deliberating that long after the alternate juror was seated. The trial court indicated it would be happy to answer any questions or clarify the jury instructions. Also, in the exercise of its discretion, it could allow a reopening of argument if the jury requested it. The trial court asked, “Is there anything that perhaps might assist?”
Juror No. 12 stated he did not believe anything would “make a difference in the dissenting juror’s mind.” The trial court asked, “What about argument? Is there anything in terms of argument that will make a difference in your opinion?” Juror No. 12 responded in the negative and stated, “I believe we have been a hung jury since we walked in there on Friday.”
The trial court indicated it wished to “make sure” and addressed each juror individually. Juror No. 9 asked what type of discussion would be provided if the trial court reopened argument. The trial court replied, “[I]f I were to allow it, ... I would direct [the attorneys] to focus on whatever issues, either based on the law or the evidence, that you... or anyone would like addressed.” Each of the other jurors indicated nothing would resolve the deadlock.
After it finished polling the jury, the trial court stated, “I am not getting from you as a group that you need any clarification in terms of the law, in terms of jury questions or in terms of any specific readback regarding testimony. [¶] What I am going to ask is that you go back... and to consider the reopening [of] argument. And if you want to send a note back as a group, focusing a request or a preference in terms of any particular areas to address [in] argument, or it can just be general, whatever your preference. Okay?”
The jury retired and, at 11:45 a.m., presented a note which stated, “We would like the reargument on [Adderley’s] intent to commit robbery. This is our hang-up.”
Defense counsel objected and requested a mistrial. Defense counsel argued returning the jury to the jury room put undue pressure on the jury and disturbed the decision it already had reached. Further, the jury last heard testimony more than five days earlier. Thus, reopening argument would confuse rather than enlighten the jury. Defense counsel urged the trial court instead to refer the jury to the relevant instructions.
The trial court responded it had offered the jury clarification of the instructions and this note requested “reargument.” The trial court indicated it had observed the demeanor of the jurors and did not believe the proceedings had reached the level of a mistrial. The trial court stated it would permit each side to argue for seven minutes.
In the argument that ensued, the prosecutor noted Adderley placed the gun at the victim’s head in order to help Manard. Thus, the requisite intent had been shown and Adderley was guilty of robbery. Further, Adderley could have formed the required intent after Manard handed him the gun and, therefore, Adderley was an accomplice to robbery.
Defense counsel argued Ramsey and Scott gave conflicting stories. Ramsey was using drugs at the time of the incident and he spoke to the police while Manard was present in the room. Scott was a convicted felon who testified in this case in exchange for leniency in his own case. Because the evidence presented was insufficient to demonstrate Adderley’s intent, the jury had to find Adderley not guilty.
The jury resumed deliberations after the lunch break and reached verdicts at 2:05 p.m.
3. Sentencing.
At the sentencing hearing, relatives of the victim, Adderley’s mother and Adderley addressed the trial court. The trial court then indicated, “[U]nless either side wishes to be heard, I can summarize it, but it’s going to be the term that’s mandated and prescribed per the law.” Both sides submitted the matter with defense counsel asking “for all the leniency allowed under the sentencing guidelines.”
The trial court offered its condolences to both families and indicated it was a very sad day. “I don’t enjoy doing this, and I am not passing judgment. [¶]... [¶] But in a court of law, I do have to give the sentence that’s mandated by the law. I think everyone realizes no one is seeking vengeance. I hope you know that. But I do have to proceed.” The trial court then indicated that, for the special circumstance robbery murder in count one, “the only term mandated by the law is an indeterminate sentence of life without the possibility of parole.” The trial court added to that term a consecutive one-year term under Penal Code section 12022, subdivision (a)(1) and stayed the term imposed on count two, attempted robbery.
CONTENTIONS
Adderley contends the jury’s verdict was the product of coercion, the trial court erred in denying the motion for mistrial and in reopening argument, the special circumstance allegation is not supported by substantial evidence, the matter must be remanded to permit the trial court to consider imposition of a term of 25 years to life under Penal Code section 190.5, subdivision (b), and Graham v. Florida (2010) __U.S.__ [130 S.Ct. 2011] precludes imposition of a sentence of life without the possibility of parole.
DISCUSSION
1. The trial court did not coerce the jury or abuse its discretion in denying Adderley’s motion for mistrial.
Adderley contends the trial court should have granted his motion for mistrial after the jury indicated it was deadlocked. Adderley argues that, by instructing the jury to “go back” and return with a note “as a group, ” the trial court put “undue pressure on the minority juror to change his [or her] vote.” (People v. Sheldon (1989) 48 Cal.3d 935, 959.) Adderley claims the trial court knew there was a single dissenting juror and the directive to act “as a group” intimated the jury should act unanimously, thereby placing undue pressure on the dissenting juror to join the majority. Thus, the directive to act “as a group” was coercive. Adderley notes a trial court’s directive can be coercive even if the trial court does not intend such coercion. (See People v.Crossland (1960) 182 Cal.App.2d 117, 119; People v.Crowley (1950) 101 Cal.App.2d 71, 75; People v. Conboy (1910) 15 Cal.App. 97, 98.)
Adderley claims the jury already had spent four days deliberating three days worth of evidence, which suggested the case was close. (People v. Cardenas (1982) 31 Cal.3d 897, 907.) Also, the jury sent the trial court numerous notes and questions, thereby indicating the jury already had carefully considered the evidence and instructions. Further, the foreperson indicated the jury had been hung since the outset and all 12 jurors initially indicated there was nothing the trial court could do to resolve the deadlock. Because the trial was short and the issues were simple, the jury reasonably would construe the directive to continue deliberations as pressure to reach a verdict, rather than a means of enabling the jurors to enhance their understanding of the case. (People v. Rodriguez (1986) 42 Cal.3d 730, 775.)
Adderley concludes the trial court’s directive was coercive and the guilty verdicts and the true finding on the special circumstance allegation must be reversed without an assessment of prejudice. Alternatively, Adderley claims the error was prejudicial because the evidence of his intent to rob was weak. Adderley notes Scott testified Adderley did not know Manard was going to commit a robbery and Adderley pointed the gun only to scare the driver. Ramsey said Adderley did not want to participate in the robbery and both Ramsey and Scott said Adderley would not shoot when Manard told him to. Also, the jury found Adderley was not the actual shooter. Adderley concludes the error violated his right to the independent judgment of each juror and requires reversal. (People v. Gainer (1977) 19 Cal.3d 835, 849.)
Adderley’s arguments are not persuasive.
“Whether the jury has had sufficient time to deliberate, and whether there is no reasonable probability of a verdict, are determinations committed to the sound discretion of the trial court. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 467; People v. Sandoval (1992) 4 Cal.4th 155, 195.) As long as the trial court avoids coercing the jury to reach a verdict, there is no bar against inquiring into the possibility of agreement and it is not coercive to suggest further deliberations. (People v. Bell (2007) 40 Cal.4th 582, 616.) The question of coercion is necessarily dependent on the facts and circumstances of each case. (People v. Breaux (1991) 1 Cal.4th 281, 319.)
“Coercion has been found where the court, by insisting on further deliberations, expressed an opinion that a verdict should be reached. [Citations.]” (People v. Rodriguez, supra, 42 Cal.3d at p. 775.) People v. Gainer, supra, 19 Cal.3d 835, held it is error to give an instruction to a deadlocked jury that “either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried.” (Id. at p. 852, fn. omitted.)
Applying these principles, we initially note Adderley exaggerates the amount of time the jury had deliberated by including the deliberations that occurred before the trial court seated the alternate juror. The reconstituted jury had deliberated only approximately six hours, less than one full day, before indicating it was deadlocked. This was a relatively short period of time given the seriousness of the charges.
Also, although Adderley claims all 12 jurors indicated they did not think the trial court could do anything to assist them to reach a verdict, Juror No. 9 was open to hearing additional argument. Additionally, the trial court indicated its evaluation of the demeanor of the jurors suggested further deliberations might be productive. Under these circumstances, the trial court did not abuse its discretion when it denied the motion for mistrial and asked the jury to see if it could agree on a request for further argument.
In any event, the fact the majority of the jurors commented negatively on the prospects of a verdict before the trial court asked the jury to consider further argument does not compel a finding of coercion. (See People v. Breaux, supra, 1 Cal.4th at pp. 319-320; People v. Sandoval, supra, 4 Cal.4th at p. 196.) Moreover, after the jury retired, it returned and requested additional argument on the issue of intent to rob, thereby confirming the trial court’s assessment of the demeanor of the jury.
With respect to Adderley’s claim the trial court’s remarks placed undue pressure on the holdout juror, we note the trial court was aware of the numerical split of the jury only because the foreperson offered that information. However, even when a trial court is aware the jury is split 11 to 1 and the majority favors conviction, an order directing further deliberations will be upheld if the direction to resume deliberations is not accompanied by coercive comments. (People v. Bell, supra, 40 Cal.4th at p. 617; People v. Pride (1992) 3 Cal.4th 195, 265-266; People v. Sheldon, supra, 48 Cal.3d at pp. 959-960.)
The statements Adderley relies on to demonstrate coercion fall short of accomplishing that task. The request that the jury “go back” and “send a note back as a group” regarding a request for argument did not coerce the jury into any course of action. The trial court did not require the jury to send a note regarding additional argument. It told the jury, “if you want to send a note back, ” the jury could do so. Thus, the trial court did not discourage the jury from returning and telling the trial court no further argument would be helpful.
Additionally, the trial court did not refer to the minority juror in any manner, made no comment on the status of the vote, made no statement that could be interpreted as exerting pressure on any juror and never told the jury it was required to reach a verdict.
The cases cited by Adderley, Crowley, Crossland and Conboy, reveal that his arguments lack merit. In People v. Crowley, supra, 101 Cal.App.2d 71, the trial court told a deadlocked jury the evidence was “plain and clear.” (Id. at p. 74.) The trial court directed the jury to see if it could reach a decision and ordered the bailiff to “ ‘ lock the jury up for the night’ ” if the jury did not reach a verdict by 5:00 p.m. (Ibid.) In People v. Crossland, supra, 182 Cal.App.2d 117, the trial court told the jury the case was probably the most simple case he had tried in 12 years as a judge and insisted upon further deliberation. (Id. at p. 119.) People v. Conboy, supra, 15 Cal.App. 97, held it was prejudicial error for the trial judge to tell the jury “there is no reason why twelve, honest, intelligent, reasonable men should not reach a conclusion in this case, and I am surprised that you have not done so already.” (Id. at p. 98.)
Here, the trial court made no similar remarks. The trial court did not tell the jury the issues were simple, did not threaten to prolong the deliberations or order the jury locked up until verdicts were reached and did not indicate a verdict had to be reached. Instead, the court asked the jury to consider whether read-back, additional instruction or argument might be helpful. The court did not require the jury to resume deliberations, but only directed it to reconvene to consider the alternatives suggested by the court. The jury thereafter, as a group, requested additional argument on the issue of intent. Thus, the court did not force the jury to render a verdict; it simply offered assistance, which the jury accepted.
In sum, the trial court acted within its discretion in denying the motion for mistrial and in directing the jury to consider further argument.
Based on this resolution, we have no occasion to consider Adderley’s claim the error was prejudicial. However, it would be remiss not to comment on Adderley’s assertion the jury found he was not the actual shooter. In fact, the jury was never asked to consider whether Adderley was the actual shooter. Rather, the jury was asked to determine whether the attempted robbery was committed for the benefit of a criminal street gang and, if it found that allegation true, it was then to consider whether a principal personally discharged a firearm causing death. (Pen. Code, § 12022.53, subds. (d), (e)(1).) Because the jury found the criminal street gang enhancement not true, it had no occasion to consider the firearm allegation. Nonetheless, the jury marked the firearm allegation not true, presumably because it found the necessary prerequisite gang enhancement not true. In any event, the firearm allegation alleged only that a principal personally discharged a firearm causing death, not that Adderley personally discharged a firearm causing death. Therefore, the not true finding on this allegation did not, as Adderley claims, indicate the jury found Adderley was not the actual shooter.
2. The trial court did not err in permitting each side to reopen argument.
Adderley claims no published case holds it is proper to permit counsel to reargue a case after the matter has been submitted and deliberations have commenced. However, as noted in People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172, California Rules of Court, rule 2.1036(b), which became effective January 1, 2007, provides: “If the trial judge determines that further action might assist the jury in reaching a verdict, the judge may: (1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures.” (Rule 2.1036(b), italics added.)
Young observed that, “when faced with questions from the jury, including that they have reached an impasse, ‘a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury.’ [Citation.]” (People v. Young, supra, 156 Cal.App.4that pp. 1171-1172.) Thus, the trial court was well within its discretion in polling the jury to determine the extent of the impasse and in asking the jury to see if it could agree on some assistance from the trial court. Thereafter, consistent with California Rules of Court, rule 2.1036(b), the trial court properly permitted each side to reopen argument briefly on the issue of intent to rob, as requested by the jury.
Adderley also claims the trial court’s ruling on re-argument gave the prosecution an unfair extra bite at the apple. He asserts the People unfairly used the opportunity to remedy flaws in the first summation and to magnify certain evidence. Contrary to Adderley’s claim, the procedure employed by the trial court was neutral. Each side received a brief opportunity to reargue its position, and each side was allowed the same amount of time. Defense counsel received an opportunity to argue Adderley lacked the intent to rob and to refute or negate any points the prosecutor might have made. Thus, the additional argument was not unfair or unduly prejudicial to Adderley.
We therefore conclude the trial court committed no error in permitting additional argument from both parties on the issue of intent to rob.
3. The true finding on the special circumstance allegation is supported by substantial evidence.
Pursuant to Penal Code section 190.2, subdivision (d), in the absence of a showing of intent to kill, an accomplice to the underlying felony who is not the actual killer will be sentenced to death or life in prison without the possibility of parole where he or she is found to have acted with “ ‘reckless indifference to human life and as a major participant’ in the commission of the underlying felony....” (People v. Estrada (1995) 11 Cal.4th 568, 575.) The phrase “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware his or her participation in the underlying felony involved a grave risk of death. (Id. at p. 577.) A “major participant” in a robbery is one who plays a notable or conspicuous part or is one of the more important members of the robbery group. (People v. Proby (1998) 60 Cal.App.4th 922, 931.)
Adderley contends there was no solid evidence he was a major participant in the attempted robbery. Adderley claims his role was passive, he did not bring a weapon to the scene, he did not discharge a weapon and he did not actively participate in the robbery. Adderley argues the evidence showed Manard planned and carried out the robbery, Adderley resisted involvement in the crime and he was merely on the sidelines. He notes Ramsey and Scott both testified Adderley did not want to participate in criminal activity and Manard alone demanded money from the driver. Further, Scott testified Adderley did not know Manard intended to commit a robbery until they were in the cab. When Manard told Adderley to shoot, he refused and Manard alone pulled the trigger. Thus, Adderley did not assume a role that was “ ‘notable or conspicuous in effect or scope’ ” and Adderley’s involvement was less extensive than Manard’s. (People v. Proby, supra, 60 Cal.App.4th at p. 934; People v. Hodgson (2003) 111 Cal.App.4th 566, 578.)
Adderley additionally contends, based on the same evidence cited above, there was insufficient evidence he acted with reckless indifference to human life. Adderley concludes the evidence was insufficient to sustain the special circumstance allegation.
“We review a challenge to the sufficiency of the evidence to support a special circumstance finding as we review the sufficiency of the evidence to support a conviction. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1229; People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) “In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) In addition to viewing the evidence in the light most favorable to the judgment, we also presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
Here, there was ample evidence Adderley willingly was a major participant in the robbery. After Manard asked Adderley and Ramsey to join him in the robbery, Ramsey declined to participate and advised Manard and Adderley not to do it. Manard crossed the street and indicated he would commit the robbery with them or without them. Adderley thereafter decided to join Manard across the street. Thus, unlike Ramsey who declined to participate, Adderley voluntarily joined Manard and intended to participate in the robbery without any persuasion or coercion from Manard and with full knowledge they were going to rob a cab driver. Additionally, Ramsey testified either Adderley or Manard had a gun earlier in the evening. Thus, if Adderley were not armed, he was aware that Manard had a gun. This evidence, which indicates Adderley and Manard discussed and planned the robbery while they were with Ramsey, contradicts Adderley’s claim he never wanted to participate in criminal activity.
Additionally, Adderley’s assertion he did not shoot the driver is contradicted by his adoptive admission at Newman’s house after the robbery. When Manard told Ramsey that Adderley killed the cab driver, Adderley did not correct or refute Manard’s statement. Moreover, later that evening, Adderley confirmed that he shot and killed the driver by stating, “I did it, ” to Ramsey. Even if it is assumed Adderley did not pull the trigger, Adderley pointed the gun at the driver’s head when Manard demanded the driver’s money without any direction from Manard and in furtherance of the effort to commit the robbery. Adderley’s conduct indicated the driver would be shot if he did not comply. Even if Adderley intended only to frighten the driver, the act of pointing a loaded handgun at the head of the cab driver while Manard demanded the driver’s money inherently involved reckless indifference to human life. Adderley must have been aware that the use of the gun to effect the robbery presented a grave risk of death. (People v. Estrada, supra, 11 Cal.4th at p. 577.)
Finally, after the driver was shot in the head, Adderley did not render assistance but fled the scene with Manard, leaving the driver to die.
People v. Hodgson, supra, 111 Cal.App.4th 566, held conduct substantially less involved than Adderley’s sufficient to sustain a true finding on a special circumstance allegation. In Hodgson, the defendant “held open the electric gate of an underground parking garage of an apartment complex to facilitate the escape of his fellow gang member who had robbed and shot to death a woman just after she opened the gate with her key card.” (Id. at p. 568.) Hodgson found the defendant was a major participant, even though he did not supply the gun, was not armed and did not personally take property. Hodgson also found the defendant acted with reckless indifference to human life, noting the defendant must have been aware the use of a gun during a robbery presents a grave risk of death and, after the victim was shot, the defendant did not aid the victim but instead helped his companion escape. (Id. at p. 580.)
In People v.Proby, supra, 60 Cal.App.4th 922, the defendant and a codefendant participated in an armed robbery at a restaurant. The defendant in Proby provided the actual killer with the gun used in the killing but did not witness the shooting. However, when the defendant saw the fatally injured victim, he did nothing to render assistance and thereafter helped the codefendant remove money from a safe. Proby held the defendant was a major participant who acted with reckless indifference to human life. (Id. at p. 931.)
Comparison of these cases to the attempted robbery and murder committed by Adderley and Manard reveals the jury’s finding Adderley was a major participant who acted with reckless indifference to human life was supported by substantial evidence.
4. The matter must be remanded for resentencing.
In a supplemental opening brief, Adderley contends the sentence imposed by the trial court must be vacated because the record reflects the trial court was unaware of its discretion under Penal Code section 190.5, subdivision (b) to sentence Adderley to a term of 25 years to life. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089.)
We find this claim meritorious.
Penal Code section 190.5 provides: “(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” (Italics added.)
In Ybarra neither the trial court nor counsel referred to the defendant’s minority at the sentencing hearing. Ybarra concluded this was “suggestive of a lack of awareness... of the discretion that section 190.5, subdivision (b) confers to impose on a youthful offender a 25-to-life term....” (People v. Ybarra, supra, 166 Cal.App.4that p. 1093.) Here, it is clear the trial court and the parties were aware of Adderley’s age. However, the trial court’s remarks at the time of sentencing suggest the trial court was not aware of the discretion available under Penal Code section 190.5, subdivision (b). Although defense counsel requested all the leniency the law would permit, counsel did not refer to section 190.5, subdivision (b) and the trial court’s remarks indicate it believed a term of life without the possibility of parole was mandated by law.
A trial court must act with an understanding of its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 [discretion to strike prior conviction allegations]; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [discretion to impose a full term consecutive sentence under Pen. Code, § 667.6, subd. (c)].) “[W]here the record affirmatively discloses that the trial court misunderstood the scope of its discretion, ” remand for resentencing is proper. (People v. Fuhrman, supra, 16 Cal.4th at p. 944; see People v. Meloney (2003) 30 Cal.4th 1145, 1165 [remanding for resentencing where trial court mistakenly believed it lacked discretion to impose lesser sentence]; People v. Sotomayor (1996) 47 Cal.App.4th 382, 391 [“sentencing record as a whole” indicated the trial court “was unaware of his sentencing discretion”].)
We conclude the record in this case reflects unawareness on the part of the trial court of its sentencing discretion under Penal Code section 190.5, subdivision (b). The People resist this conclusion and argue the presumptive mandatory term for a defendant under the age of 18 years at the time he or she commits a special circumstance murder is life without the possibility of parole “unless the trial court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141.) Because the trial court said nothing during the sentencing hearing that indicated it found any circumstances in mitigation, the People argue the only reasonable conclusion was that, although the trial court was reluctant to impose a penalty of life without possibility of parole, in the absence of mitigating circumstances, it was compelled to do so.
However, the trial court’s failure to discuss mitigating or aggravating circumstances was likely a byproduct of its repeatedly stated belief the law required imposition of a term of life without the possibility of parole. Given the trial court’s view that a term of life without the possibility of parole was mandatory, there was no occasion for the trial court to discuss circumstances in mitigation or aggravation. Indeed, the failure to discuss these factors buttresses our conclusion the trial court was unaware of its sentencing discretion.
We shall therefore reverse the judgment and remand the matter to permit the trial court to resentence Adderley having in mind the discretion afforded by Penal Code section 190.5, subdivision (b).
5. Graham v. Florida(2010) __U.S.__ [130 S.Ct. 2011] has no application in this homicide case.
In a second supplemental brief, Adderley contends Graham v. Florida, supra, __U.S.__ [130 S.Ct. 2011]precludes imposition of a term of life without the possibility of parole because Adderley was a juvenile when he committed the offense, he did not kill, intend to kill or foresee that life would be taken and his personal culpability was less than that of the actual shooter. (Id. at p. __ [130 S.Ct. at p. 2027].) In a supplemental letter brief, Adderley notes People v. Mendez (2010) 188 Cal.App.4th 47, 64, has extended the reasoning of Graham to multiple life term cases.
However, Graham v. Florida addressed only the constitutionality of imposing a sentence of life without the possibility of parole on a juvenile who did not commit homicide. Graham v. Florida held that, “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit punishment.” Graham v. Florida, supra, [130 S.Ct. at p. 2030], italics added.)
Becausethe instant case involves a homicide, Graham v. Florida and People v. Mendez are distinguishable. As previously discussed, viewed in the light most favorable to the judgment, the evidence showed Adderley knew Manard planned to rob the driver before he chose to assist Manard and Adderley put the gun at the driver’s head when Manard demanded the driver’s money. Additionally, no more than an hour after the crime, Adderley, did not deny or contradict Manard’s statement that Adderley killed the driver. On the contrary, Adderley told Ramsey he “did it.”
In sum, because this case involved a homicide and because Adderley was a major participant in the crime who acted with reckless indifference to human life, Graham v. Florida and People v. Mendez are inapposite.
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing in conformance with the views expressed herein.
We concur: KITCHING, J., ALDRICH, J.