Opinion
C069229
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ CARDENAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF106859A)
A few months before his 18th birthday, defendant Jose Rodriguez Cardenas and an 18-year-old accomplice followed victim Francisco Montejo down an alley and tried to rob him at gunpoint. The victim resisted and was shot and killed. After initially denying involvement, defendant admitted to police that he held the gun but claimed the discharge was accidental. In trial testimony defendant reverted to his original denial and claimed that police coerced his statements.
The prosecution initially charged first-degree premeditated murder, but two hung juries failed to reach a verdict against Cardenas. A separate jury in the first trial convicted codefendant Ramon Mendez of first degree murder and attempted robbery, which was the subject of a separate appeal. (People v. Mendez (Jan. 10, 2013, C063386) [nonpub. opn.] 2013 WL 120935.)
This appeal concerns defendant Cardenas's third trial, in which the prosecution dropped the premeditation theory. The jury found defendant guilty of first-degree murder with two special circumstances -- (1) felony murder during an attempted robbery; and (2) an intentional killing to further activities of a criminal street gang in which defendant was actively participating. (Pen. Code, §§ 187, 190.2, subds. (a)(17) and (a) (22); statutory references that follow are to the Penal Code unless otherwise set forth.) The jury also found defendant guilty of attempted second degree robbery (§§ 211, 664); and (3) street terrorism (§ 186.22, subd. (a)).
On the murder and attempted robbery counts, the jury also found true three enhancement allegations: (1) that defendant "personally and intentionally" discharged the firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)); (2) that defendant was a principal and a principal "intentionally and personally discharged a firearm" proximately causing great bodily injury or death (§ 12022.53, subds. (d)-(e)); and (3) that the murder was committed for the benefit of a criminal street gang to promote gang activity (§ 186.22, subd. (b)(1)).
The trial court sentenced defendant to prison for life without the possibility of parole (LWOP).
Recent changes in law demand that we vacate the sentence and conditionally reverse the conviction and remand to the trial court with directions to transfer the case to the juvenile court for a transfer hearing to determine the propriety of prosecution in adult criminal court had the case originally been filed in juvenile court (Welf & Inst. Code, § 707) pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299, which held Proposition 57 retroactive.
If the juvenile court determines it would not have transferred defendant to criminal court, the juvenile court shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition.
If the juvenile court determines it would have transferred defendant to criminal court, the case shall be transferred to criminal court, which shall reinstate defendant's conviction but conduct a resentencing hearing on the vacated sentence. In the resentencing hearing, the trial court shall consider whether to exercise its newly-enacted discretion to strike any section 12022.53 gun enhancements pursuant to Senate Bill No. 620 (§ 12022.53, subd. (h)), which took effect January 1, 2018, and which we held retroactive in People v. Woods (2018) 19 Cal.App.5th 1080.
The trial court shall also reconsider the sentence in light of case law published after defendant was sentenced, holding that the Eighth Amendment's ban on cruel and unusual punishment requires the sentencing court to consider factors bearing on the "distinctive attributes of youth" before imposing an LWOP sentence on a juvenile offender. (Miller v. Alabama (2012) 567 U.S. 460 (Miller); In re Kirchner (2017) 2 Cal.5th 1040; People v. [Luis Angel] Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).)
We reject defendant's other contentions:
(1) That the trial court erred in rejecting his claims of discrimination in the prosecutor's exercise of peremptory challenges on prospective jurors under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)).
(2) That the trial court should have excluded evidence of his admissions to police, on the grounds his statements were involuntary and police violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
(3) That the evidence supports at most a finding of accidental discharge of the gun and is insufficient to support the jury's findings that he personally and intentionally discharged the gun (for the gun enhancement) and intended to kill (for the gang special circumstance).
(4) He presents various contentions flowing from his premise that the jury may have found him guilty as an aider/abettor rather than the shooter (an alternative that the prosecutor halfheartedly offered to the jury). Defendant relies on authorities that aiders and abettors are not subject to LWOP sentencing for the felony-murder special circumstance unless the prosecution proves the aiders and abettors intended to kill or were major participants who acted with reckless disregard for human life.
(5) Defendant claims instructional error and unconstitutional vagueness.
Much of defendant's presentation about the felony-murder special circumstance is defeated by our conclusion that substantial evidence supports the jury's finding that defendant personally and intentionally discharged the gun causing death. The jury's finding on this point establishes that the jury found defendant was the actual killer, not merely an aider/abettor.
Consequently, this appeal differs from Mendez's separate appeal. We there reversed gang special circumstance findings due to instructional error, struck gang enhancements because they could not be imposed in addition to firearm use enhancements, and stayed separate punishment under section 654, but we otherwise affirmed the judgment. (People v. Mendez, supra, (C063386) [nonpub. opn.] 2013 WL 120935.)
If the conviction is reinstated, the trial court after the resentencing hearing shall prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The new abstract of judgment shall show the felony-murder special circumstance (§ 190.2, subd. (a)(17)), which is not shown in the original abstract of judgment.
FACTS AND PROCEEDINGS
Defendant admits that at the time of these offenses he was a member of the Vickystown gang, a subset of the Surenos gang, though he claims he quit a year or two later.
There was no evidence that the victim was a gang member, and no one argues that he was.
On December 9, 2007, defendant -- who would have his 18th birthday in March 2008 -- went to a flea market with friends Martha and Carina and Carina's 10-month-old daughter, in Carina's 2-door Thunderbird.
Carina and Martha each testified under a grant of use immunity. Inconsistencies between statements to police and trial testimony were explored during trial.
Carina and Martha had been gang members of the Sureno subset Playboys but were no longer members at the time of trial.
At the flea market, they saw a friend, Jose Palacios (Gordo), and accepted his invitation to go to his house, which was a regular hang-out for Sureno gang members. Several people were at the house, including defendant's accomplice, 18-year-old Ramon Mendez (Gallo), who was also a Vickystown member.
Carina saw a gun being handed around among several people, including defendant. Defendant put the gun in his belt to "show[] it off." Carina did not see who had the gun last.
Martha claimed she did not see a gun and did not recall much of anything.
Another person at Palacios's house that day, Carlos Valdez, saw Gallo (Mendez) take a revolver out of his pocket and pass it around to others. Valdez did not handle the gun. Valdez saw some .22 caliber bullets fall out of Mendez's pocket and helped pick them up. (The victim was killed by a .44 caliber bullet.) Valdez did not remember who had the gun last, but defendant Cardenas was one of the people who handled the gun. Valdez did not recall having failed to recognize Cardenas in prior proceedings.
Carina testified she left Palacios's house around 4:00 p.m. and was sitting in her car with her child and Martha and defendant. Carina was busy with her CD player, and Martha was texting on her phone. A young, nicely dressed Mexican man walked by the car talking on a cell phone. Defendant commented he liked the man's phone and "I should jack him." Carina knew defendant was called "Joker," did not take him seriously, and did not agree to participate in a robbery. Martha did not recall the comment.
Defendant, seated in the back of the two-door car, asked to get out, and Carina let him out. Mendez approached. He and defendant talked outside the car and then walked off in the same direction as the victim.
After several minutes, Carina started driving around, looking for defendant, because he had wanted a ride. She saw a black bulge laying in an alley and later learned it was the victim who had been shot. On the street, Carina spotted defendant and Mendez running. They jumped in the car, breathing hard. Defendant looked pale and said, "I think I shot him."
Martha remembered little at trial and said she was on her phone in the car and not paying attention. She initially lied to police, then admitted her presence and told police that defendant was nervous when he got back in the car, but also said that people in the car were laughing.
Carina dropped defendant off at Martha's house, and he walked off. Carina drove Mendez home.
Around 4:30 p.m., police responding to a report of a gunshot found the victim lying on his back in the alley, going in and out of consciousness, with a cell phone in his hand. He still had his wallet with a couple hundred dollars. He was taken to the hospital, where he died.
Medical examiner Dr. Bennet Omalu testified the .44 caliber bullet took an odd downward trajectory, a "very unique acute trajectory." On appeal, both sides ignore this evidence.
The bullet went in the victim's right chest, but it passed in a tangential and backward manner, hitting the right lung but not the left, and passing very close, it crossed the midline but crossed very close to the left of the vertebrae. "So that gives you from my analysis three possible scenarios. . . . [¶] . . . [¶] [The victim] was either bending over when he was shot from the side, right side, to give such a unique trajectory, or he was on the ground and somebody shoots him from a tangential angle; or he was walking and somebody shot him from a higher level, maybe from a house. . . . To have such a unique, almost impossible trajectory for somebody standing erect and facing perpendicularly facing the muzzle of a gun perpendicularly." The bullet went from the top of the chest downward at a very sharp downward angle.
The height of the victim was five feet, five inches. Defendant's height is unclear, but when he stood for the handcuffs to be removed in the videotaped police interview, he appeared neither extremely tall nor extremely short.
The muzzle of the gun, when fired, was more than two to three feet from the victim; it could have been 30 feet or 30 yards or a hundred yards.
The victim did not die instantaneously. It could have taken up to 60 minutes to die, during which he would have been in spinal shock but able to feel pain.
The victim also had a superficial nonlethal abrasion on the back of his right hand from blunt force trauma of his hand having contact with an unyielding surface. There was no indication that the victim was engaged in any physical altercation.
Police arrested defendant at his home (as he jumped from a window) and searched the home on December 14, 2007, pursuant to an arrest warrant and search warrant.
Detectives interrogated defendant at the police station. The jury saw the videotaped interview. We describe, post, defendant's claim that the trial court erred in denying his motion to exclude this evidence as having been coerced by police in violation of Miranda rights. Defendant was able to and did present his coercion theory to the jury, without success.
Defendant initially told police he knew nothing, saw nothing, and was not there. He even denied having gone to the flea market. Police said he was on surveillance video from the flea market; his fingerprints were in the Thunderbird; they had talked to people and already knew he was involved and wanted his side of the story. Defendant repeated he knew nothing.
The detectives left the room and let defendant's brother Ruben Cardenas, who is four years older than defendant, enter and talk with defendant, with the video camera still running. Their lowered voices, sometimes unintelligible, and an admonishment to "Shhh," suggest they suspected they were being recorded. Their videotaped conversation, much of which was in Spanish, was translated and played for the jury. Ruben told defendant, "They're telling me to tell you to talk and they're not going to give you a shit load of time because they say it was an accident. If not, for you to (unintelligible)." When defendant asked who said that, Ruben indicated it was one of the peace officers. Defendant asked what Ruben thought. Ruben said defendant had to "(unintelligible)" and knew what he was doing. Defendant said, "No, that's why I believe that if I say that they're going to (unintelligible). Forget it." Ruben said, "Everyone is saying it was an accident." Defendant asked, "Even Flaca [Carina]?" Ruben did not know. Defendant mumbled something about the car and Gordo and Gallo. Defendant said, "And then so then if I said that it was an accident, they'll take me?" Ruben said, "A while." Defendant asked, "How much," but Ruben did not know. Defendant asked, "Do you think I say it was an accident[]?" Ruben said yes, "but it's up to you." Defendant said he already told the police he did not know any of the people. Ruben said, "they know that you're lying." Defendant said, "Fuck it. I'm going to tell them that it was an accident," but then asked, "Do you think that I should tell my lawyer instead . . . .?" Ruben's answer was unintelligible. Defendant said, "No, I won't tell my lawyer anything . . . ." Ruben said to ask the police what deal they could give him because it was an accident. At a knock on the door, Ruben repeated, "It's up to you," and the conversation ended.
The detectives then resumed interrogating defendant and said they had been talking to defendant's family about him and saw signs of someone who "has a heart" rather than "a cold-blooded killer" but were asking him to explain what happened. Defendant said it was an accident; he "just panicked." He just wanted the phone and thought the victim would be an easy target. Defendant and his "homey" (whose name defendant claimed not to know) followed the victim down the alley. Defendant pulled from his waistband a gun (which he claimed he had acquired from a stranger in the street) and held it straight out with his right hand. The victim stopped. Defendant told police that he and the homey demanded the victim's phone, "And that fool said, 'No.' " The homey and victim were "talking" and the gun fired by accident; "I guess I pushed too -- I just went like that a little and then I just heard it. I just heard the pop." "I was just looking around and then that's when he was just like -- I was just, you know, (unintelligible) push the (unintelligible) but I was just holding it by the trigger and then I just heard the shot" and saw the victim fall. Defendant denied that he or his accomplice touched or knocked down the victim. They fled without taking the victim's property. Defendant denied leaving in Carina's car and said she was not involved in any way. He was high on marijuana. He threw the gun away but did not remember where.
At trial, the prosecution called defendant's brother Ruben as a witness to recount his contact with defendant on the day in question and that it was Ruben who asked police for permission to speak with his brother. Ruben claimed memory loss due to a car accident two weeks before his trial testimony. Defense counsel, who wanted to show that police used Ruben as an agent to pressure defendant into confessing, questioned whether Ruben really could not remember. Ruben invoked his Fifth Amendment right against self-incrimination. The court granted him use immunity. Ruben then testified the police told him to talk to his brother and get him to admit to an accidental shooting, and he would get less time. To impeach this testimony, the court allowed the prosecution to present to the jury portions of the DVD of the conversation between police and Ruben.
A search of defendant's residence revealed a photograph of a gun on top of a T-shirt that read "Joker." Defendant testified he took the photo using his father's gun because he thought it would be "cool." A gun was found on the premises but was not linked to this homicide. Police found a newspaper article about this killing as well as gang symbols and writings with rap music lyrics about killing people with a .44 caliber Smith and Wesson SP. Defendant testified killing is part of the Sureno lifestyle to some, but he would not do it; he just wrote about it because he was stupid back then.
Defendant's appellate contentions do not call for a detailed recitation of the gang evidence or the gang expert's testimony.
In defendant's trial testimony, he denied any involvement in the crimes and said his admissions to police were lies he told because his brother told him to say it was an accident and he would not get a lot of time (sentence), and defendant was trying to protect Carina and Martha. Defendant claimed he asked police for a lawyer by asking "Right now?" when the police said he could have a lawyer present at questioning, but they "ignored me."
He admitted going to the flea market with Carina but said Martha (his girlfriend) got mad when they bumped into another girl he was going out with, so to avoid problems he left with another girl, Suzanna aka Whispers. She drove to Gordo's house, but defendant stayed in the car. Suzanna and defendant then went to K-Mart and then she drove him home. Defendant did not tell police because he did not want to involve other people. (The police were unable to locate Suzanna.)
Defendant said he never walked down the alley and knew nothing about the incident until later, when Martha called and said Mendez shot someone.
When police came to his house, defendant jumped out the window because he was scared. He stopped running when he realized it was the police.
After talking to his brother, defendant told police he fired the gun by accident because his brother told him to say that and he would not get a lot of time (sentence).
Defendant's confession to police was all lies. He did not think he would serve much time. He lied to protect Martha and Carina. The gang has a rule against snitching and he was "tak[ing] one for the team." But at trial he is no longer willing to take the fall for something he did not do; now he wants to tell the truth; he is innocent. Defendant is not aware of anything that would cause other witnesses to accuse him falsely.
In closing argument to the jury, the prosecutor argued the angle of the bullet's trajectory indicated that something happened inconsistent with defendant's statement to police that he accidentally pulled the trigger while standing face to face with the victim. Perhaps the victim fell or struggled as Mendez tried to take the phone; there was no way to know for sure but it did not matter. What mattered was that the victim's position was inconsistent with defendant's claim to police as to how an accidental shooting occurred. This was a cold-blooded murder for the disrespect shown by the victim: "[H]ow dare he say 'no.' "
The prosecutor argued to the jury that defendant was "absolutely" the shooter but, even if the jurors for some reason disagreed, they could find him guilty as an aider and abettor.
The defense argued to the jury that there was no evidence of an intentional shooting, and defendant's statements to police were coerced.
In May 2011, the jury found defendant guilty on all charges and found true all enhancement allegations, as follows:
On Count One, the jury found defendant guilty of first degree murder (§ 187) and found "true" all of the following: (1) The special circumstance for murder committed during the commission of attempted robbery (§ 190.2, subd. (a)(17)); (2) the special circumstance that "defendant intentionally killed the victim" while an active participant in a criminal street gang to further the gang's activities (§ 190.2, subd. (a)(22)); (3) that defendant was a principal and a principal intentionally and personally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subds. (d)-(e) [subd. (e) is enhancement for gun use by any principal during gang crime]); (4) "defendant personally and intentionally discharged a firearm" in commission of felony proximately causing great bodily injury or death (§ 12022.53, subd. (d)); and (5) that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)).
On Count Two, the jury found defendant guilty of attempted robbery (§§ 211, 664) and found "true" that (1) during the crime defendant was a principal and a principal intentionally and personally discharged a firearm proximately causing death (§ 12022.53, subds. (d)-(e)); (2) during the crime defendant "personally and intentionally discharged a firearm" proximately causing great bodily injury (§ 12022.53, subd. (d)); and (3) the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang to further criminal conduct by gang members (§ 186.22, subd. (b)(1)).
On Count Three, the jury found defendant guilty of active participation in a criminal street gang (§ 186.22, subd. (a)).
Defendant filed a motion for new trial on various grounds and a "STATEMENT IN MITIGATION/MOTION TO REDUCE LWOP SENTENCE FOR JUVENILE."
In September 2011, the trial court denied the motion for new trial and viewed the motion about sentencing as a motion to strike the special circumstances. Defense counsel said mitigation was a sentencing issue, and LWOP in this case would violate evolving standards in case law heading in the direction of not sentencing minors to life without parole. The prosecutor retorted the lines of cases referenced by defense counsel "don't exist right now" (2011), and there were no mitigating factors under California Rules of Court, rule 4.414 to mitigate the sentence.
The trial court denied defendant's motion to reduce the sentence. The court acknowledged "attractive language" in case law about evolving standards that "mark the progress of a maturing society" but opined "we should resist that evolving progress," citing an incident in Norway where an adult offender got a "slap on the wrist" (30 years) for killing 76 people. Defense counsel protested the comparison.
The trial court sentenced defendant to life without the possibility of parole for the felony-murder with the felony-murder special circumstance, and a concurrent term of life without possibility of parole for the gang special circumstance. The court imposed 25 years to life for the gun enhancements, stayed under section 654; and a 10-year sentence for the gang enhancement, stayed under section 654. On Count Two, attempted robbery, the court imposed the midterm of two years plus the gun and gang enhancements, all stayed under section 654. On Count Three, street terrorism, the court imposed a two-year sentence stayed under section 654. The court also ordered restitution.
DISCUSSION
I
Batson/Wheeler
Defendant, who is Hispanic, contends the prosecutor exercised racially discriminatory peremptory challenges against three Hispanic and one African-American prospective jurors in violation of Batson, supra, 476 U.S. 79, and Wheeler, supra, 22 Cal.3d 258, and that the trial court erred in concluding defendant failed to make a prima facie showing of discrimination. We disagree.
A. Background
Defendant misstates the record by asserting that his first Batson/Wheeler challenge was to the prosecutor's use of her sixth peremptory challenge; in fact it was her eighth. By that point, the prosecutor had exercised the first six peremptory challenges on "Anglo[s]" (as later noted by the trial court), and the seventh on Mrs. S., who was apparently Filipina or Hispanic, who said in voir dire that she knows someone serving a prison sentence for murder, is emotional about it, but could decide this case on the evidence. Of the seven, five were female and two were male.
1. Eighth Challenge -- Prospective Juror Mr. R.
Defendant made his first Batson/Wheeler objection to the prosecutor's use of her eighth peremptory challenge to excuse a Hispanic male, Mr. R. Defendant argued there was a "dearth" of Hispanics on the panel, and "[t]here is now going to emerge a pattern of dismissal of Hispanics, especially Hispanic males."
The court said the first question was about prima facie showing. The prosecutor argued there was no prima facie showing of discrimination, and future challenges were not in issue, and the prosecution had concerns about Mr. R.'s house having been tagged with gang graffiti. The court interrupted and said to stick with the prima facie issue. The prosecutor said defendant failed to show a prima facie case; this was the first Hispanic the prosecution excused; and they had reasons for doing so.
The trial court found no prima facie case was shown; this was the first peremptory challenge of a Hispanic by the People, "other than possibly" Mrs. S. who was possibly Hispanic, and several Hispanics remained on the panel. Defense counsel suggested Mrs. S. might be Filipina. The court acknowledged a challenge to a single juror could establish a prima facie case (see e.g., Foster v. Chatman (2016) ___ U.S. ___, ___ ), but the court saw no discrimination at this point, where the prosecutor had used only one challenge, perhaps two, out of eight on Hispanics.
The prosecutor's ninth and 10th peremptory challenges went to Caucasian females.
2. Eleventh Challenge -- Prospective Juror Ms. B.
The prosecutor's 11th peremptory struck an African-American woman, Ms. B.
In voir dire, Ms. B. said she lives in a neighborhood with home invasions and graffiti. She called police and provided tape from her security camera when a neighbor's home was invaded. She believes innocent people may confess under coercion by police who are trying to wrap up a case. She does not believe police will just pick a person at random from the phone book.
When the prosecutor excused Ms. B., defendant made a Batson challenge, arguing the "cognizable group" being subjected to discrimination was "people of color," and only one person remained who kept this from being a "lily-white" jury, and Ms. B.'s answers showed a balance of potential bias against both the defense and the prosecution.
The court noted that, other than Ms. B., the only remaining person who appeared Black was Mr. G., who had a Hispanic surname. There had been another Black person but the court recalled that person had been excused by the defense. The trial court found no prima facie showing; the prosecution had exercised its challenges against a wide diversity of people, mostly Anglo, some male and some female. Defense counsel argued the prosecutor had used three out of 11 peremptory challenges on minorities, "virtually 30 percent." The court said, "They aren't all the same, as I just got through saying."
3. Twelfth Challenge -- Prospective Juror Mr. D.
The prosecutor began by asking Mr. D., a Hispanic male, if he could understand why she might have concerns about his ability to be fair to the People's case, based on his questionnaire. He said, "it's been a long time." She said, "But you had some extremely extremely strong opinions about what happened." He said, "It was an extreme situation I was put in." The prosecutor noted Mr. D. had a "very strong opinion" that the police mishandled a situation. Mr. D. did not disagree. The San Francisco Police Department did not do enough when he complained that a police officer who came out to take a report ended up stealing Mr. D.'s girlfriend. Mr. D. asked the police department to take action against the officer but did not hear of any follow-up, other than that the officer disappeared. When asked if that experience led him to believe that peace officers are less truthful than anyone else, Mr. D. said he was not saying that all officers are like that, just that that one was.
When the prosecutor excused Mr. D., defendant objected. In chambers, defense counsel began by asking if the judge considered Mr. D. Hispanic. The court indicated Mr. D.'s name was Hispanic and, while he did not look Hispanic, some Hispanics do not look Hispanic, and the trial court would assume for the purpose of argument that Mr. D. was probably Hispanic. (Exclusion on basis of Spanish surnames may support inference of discrimination, as noted in People v. [Rene] Gutierrez (2017) 2 Cal.5th 1150, 1156, fn. 2.)
Defense counsel asserted "now we are getting towards the inevitable pattern that you knew would arrive of systemic exclusion from this jury of not just people of color, people with ethnic experience, but specifically people with Hispanic heritage[.] And if you take all four of them together, I would have to calculate what percentage the total people that were excused are -- but that's -- we are now demonstrating a pattern of exclusion specifically toward Hispanics." The prosecution said it had excused a balance of jurors, raised neutral reasons, and no pattern of discrimination had been shown. The court said, "This is twelve challenges. And again, if you put everybody together in the same pot, including Ms. [B.], at the most it would be four non-Anglo, I guess, would be the way to put them." Defense counsel said, "Four out of 12, that's 33 percent."
The trial court said it was "hard to view [Mr. D.] in a vacuum, because it's obvious why the challenge was made to him. And so, but putting that aside for the moment, I still feel in view of the pattern of the challenges, there were something like six challenges made to Anglo males and females before a challenge was made to any of the non-Anglo jurors. [¶] In view of that, I still don't think there is a pattern that the Court can say shows any kind of bias at this point. So the Court is going to find there is not yet a prima facie case."
After excusing Mr. D., the prosecutor twice accepted the jury as constituted without exercising any peremptory challenge (even though the prosecutor had already questioned Ms. J.W., who the prosecutor later removed). The defense excused two more potential jurors.
4. Thirteenth Challenge -- Ms. J. W.
The prosecutor then excused Ms. J.W.
In voir dire, Ms. J.W., who may or may not be Hispanic, expressed concern about potential retaliation by the defendant's family or friends but said she would not let that bias her. She had been skeptical about the right to remain silent but now understood after listening in court during voir dire. Her son got in trouble with the law in another state over a fight in which he broke someone's nose. She was not present, but it was her understanding that her son was defending himself, "[a]nd not to sound proud, but he ended up winning the fight, is basically what happened." She thought it was unfair that her son was treated more harshly than the other participants. Her son's lawyer said the prosecutor wanted to drop the charges, but the victim's family pressured the prosecutor to pursue the matter. Ms. J.W. is a friend of the family of a gang member on death row. She opposes the death penalty for religious reasons.
The prosecutor used her 13th peremptory challenge to excuse Ms. J.W.
Defendant made his fourth and final Batson motion, asserting Ms. J.W. looked Hispanic, though her name seemed Anglo. The prosecutor noted the defense used one peremptory challenge on a Hispanic, Mrs. C., and used another on an African-American who was the only African-American in the pool. The trial court corrected its prior perception that Mrs. C. was Hispanic, stating the court now believed she was not Hispanic but must be married to a Hispanic because her surname was Hispanic. The court continued, "Nevertheless, there is lots of other Hispanics on the jury. And the Court will also note that the D.A. now has passed the challenge three times in a row [twice] with [Ms. J.W.] still on the panel."
The trial court said it could not tell whether or not Ms. J.W. was Hispanic; she had dark hair and skin but could be Italian or Greek; there was no way to tell for sure. (On appeal defendant cites federal case law that Italians are a cognizable group.) The court said it was not making a finding as to whether or not Ms. J.W. was Hispanic, but regardless of that, there was no prima facie case of discrimination shown, because the prosecutor passed the challenge twice (the court mistakenly said three times) with Ms. J.W. on the jury, and the prosecutor's challenges were diverse, and the county (San Joaquin) has a large proportion of Hispanics and several Hispanics remained on the jury panel. When asked by defendant, the court identified five by name. All five were sworn in as jurors.
After denial of the final Batson motion, the defense and the prosecution both passed on further peremptory challenges, and the jury was sworn in.
On appeal, defendant does not dispute the People's representation that the jury, as finally constituted, included five Hispanic jurors.
B. Analysis
1. General Principles
Both the federal and state Constitutions prohibit the use of peremptory strikes to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277; see also, People v. Parker (2017) 2 Cal.5th 1184 (Parker), citing People v. Lenix (2008) 44 Cal.4th 602, 612.) A prosecutor may exercise a peremptory challenge against anyone, including members of cognizable groups; all that is prohibited is challenging a person because the person is a member of that group. (People v. Jones (2011) 51 Cal.4th 346, 369.)
A three-step procedure applies at trial. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson), fn. omitted; People v. Manibusan (2013) 58 Cal.4th 40, 75 (Manibusan).)
The United States Supreme Court in Johnson, supra, 545 U.S. 162, disapproved California's standard that had required defendants to show at the first step that it was " 'more likely than not' " that the prosecutor's peremptory challenges were based on impermissible group bias. (Id. at pp. 168-169.) The first step, said Johnson, merely called for the defendant to show that the sum of the proffered facts give rise to " 'an inference of discriminatory purpose.' " (Id. at p. 169.) An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. (Id. at p. 168, fn. 4.) A permissible inference of discrimination suffices to establish a prima facie case of discrimination under Batson, shifting the burden to the prosecution to offer race-neutral justifications for the peremptory strikes. (Id. at pp. 168-169.) A defendant satisfies the first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Id. at p. 170 and see p. 164 [prima facie case shown where prosecution excluded all three eligible African-Americans and the defendant, who was African-American, was accused of killing his Caucasian girlfriend's child].)
Before Johnson, supra, 545 U.S. at pages 166-168, we reviewed a trial court's denial of a Batson motion deferentially, to determine whether substantial evidence supported its conclusions. (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) In light of Johnson, we now apply the standard that, on review of a trial court's finding that the defense failed to show a prima facie case, and regardless of whether the trial court applied the inference or likelihood standard, we "independently review the record" to resolve the "legal question" whether the "totality of the relevant facts" supports an inference of discrimination. (People v. Cunningham (2015) 61 Cal.4th 609, 663-664 (Cunningham) [independent review where trial court appeared to apply incorrect standard looking for systemic pattern rather than inference of discrimination]; People v. Scott (2015) 61 Cal.4th 363, 383-384 (Scott); Manibusan, supra, 58 Cal.4th at p. 80, fn. 6; People v. Harris (2013) 57 Cal.4th 804, 834 (Harris); People v. Thomas (2012) 53 Cal.4th 771, 793-794; Bonilla, supra, 41 Cal.4th at pp. 341-342 [whether record supports inference is legal question]; People v. Lancaster (2007) 41 Cal.4th 50, 74 (Lancaster).)
Among the "types of evidence [that] may prove particularly relevant" in evaluating whether a prima facie of discrimination exists "are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias. [Citations.]" (Scott, supra, 61 Cal.4th at p. 384.)
To show a prima facie case for discrimination, the defendant need not show a "pattern" of discrimination, because " ' "a single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." ' [Citations.]" (Johnson, supra, 545 U.S. at p. 169, fn. 5.) " '[T]he ultimate issue to be addressed . . . "is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias." [Citation.] But in drawing an inference of discrimination from the fact one party has excused "most or all" members of a cognizable group' . . . 'a court finding a prima facie case is necessarily relying on an apparent pattern in the party's challenges.' [Citation.] Such a pattern will be difficult to discern when the number of challenges is extremely small." (Bonilla, supra, 41 Cal.4th at p. 343, fn. 12.)
Here, the trial court said there was no "pattern," apparently in response to defendant's claims of a "pattern" of discrimination, and it appears the trial court understood Batson did not require a pattern. In any case, our independent review discloses no prima facie case.
2. Cognizable Group
Defendant argues that "[a]ssuming" the trial court ruled that "people of color" do not constitute a discrete cognizable group, the trial court erred. We disagree.
In Manibusan, supra, 58 Cal.4th 40, the defendant's sixth Batson challenge came when the prosecutor used its 16th peremptory challenge against a Filipina woman (after striking three African-American women, a Hispanic man, and a Hispanic woman). (Id. at pp. 75-84.) The defendant argued discrimination against the Filipina because she was a woman and "a minority and Asian." (Id. at p. 83.) The Supreme Court held the trial court did not err in finding defendant failed to make a prima facie showing. (Id. at p. 84.) As to ethnicity, the Supreme Court said, "Both this court and others have declined to recognize 'minority jurors' as a cognizable group for purposes of a claim that the prosecution has excused a prospective juror for discriminatory reasons. [Citations.] And defendant made no showing that the prosecution had excused any other prospective juror of the same ethnicity. For these reasons, his claim fails insofar as he bases it on the prospective juror's ethnicity." (Id. at pp. 83-84.) "[P]eople of color" is not a cognizable group for purposes of a Batson/Wheeler challenge. (People v. Davis (2009) 46 Cal.4th 539, 583 (Davis); People v. Neuman (2009) 176 Cal.App.4th 571, 575-579 (Neuman).)
Defendant argues that California, by declining to recognize "people of color" as a cognizable group, has perhaps "gotten it wrong," because federal circuit courts allow it. For example, the Ninth Circuit Court of Appeals said in Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, that consideration of four "statistically disparate" challenges to Hispanics were relevant in considering challenges to two African-Americans that, standing alone, might not suffice for an inference of discrimination. However, Fernandez did not recognize "people of color" as a cognizable group or hold as a matter of law that members of two ethnic groups could be combined for purposes of making a prima facie case. (Neuman, supra, 176 Cal.App.4th at p. 576.) Instead, Fernandez said both Hispanics and African-Americans constitute cognizable groups for Batson purposes, and that Powers v. Ohio (1991) 499 U.S. 400, 409, 415-416 held a defendant may object to race-based exclusions of jurors whether or not the defendant and the excluded jurors are of the same race, and therefore Mr. Fernandez could raise Batson challenges based on exclusion not only of Hispanics, but also of African-Americans. (Fernandez, supra, 286 F.3d at p. 1077.) The Ninth Circuit found a prima facie case because, while the two challenges to African-Americans, standing alone, may not support an inference of discrimination, the court could take into account the challenges to the four Hispanics, because Batson required the court to consider "all relevant circumstances." (Id at pp. 1078-1079.) The Ninth Circuit case has no application here. It stands for the proposition that once a prima facie showing has been established as to one race, that circumstance can be considered as tending to establish a prima facie showing as to another race. Here, defendant has not made a prima facie showing as to any race or ethnicity.
Defendant also cites a federal case from the Second Circuit, Green v. Travis (2d Cir. 2005) 414 F.3d 288, which said a defendant raising a Batson claim does not have to demonstrate that all persons peremptorily excused belong to the same cognizable group. (Id. at pp. 297-298.) A prosecutor may be biased against more than one group, and it was appropriate to consider the sum of those challenges when determining whether a prima facie case of discrimination had been made as to each of them. (Ibid.) Here, defendant has not made a prima facie showing as to any.
We conclude "people of color" are not a cognizable group for Batson purposes.
3. Defendant's Four Objections
a. Mr. R.
Defendant failed to show a prima facie case in the exclusion of this Hispanic male. Defendant merely speculated that future peremptory challenges would establish a pattern of discrimination against Hispanics. Although a challenge to a single juror may establish a prima facie case (Foster v. Chatman, supra, ___ U.S. ___ ), this one does not, because it was the prosecutor's first challenge to a Hispanic after using the first seven challenges on "Anglos" with several Hispanics remaining on the panel.
b. Ms. B.
Defendant argues a pattern of discrimination emerged when the prosecutor excused Ms. B., an African-American, because "people of color" constitute a cognizable group for Batson purposes.
In the trial court, defendant complained the prosecution had used three of 11 challenges on people of color (apparently, a Filipina, a Hispanic, and an African-American) which the defense said was "virtually 30 percent" (actually 27 percent).
Defendant's argument displays the folly of treating "people of color" as a single cognizable group for Batson purposes. He wants to rely on percentages of peremptories exercised on all "people of color," but that factor necessarily turns on the proportion of persons of the specific race or ethnicity in the pool of potential jurors. For example, in this case there were many Hispanics but few African-Americans. The challenge of one African-American alone could not properly establish an inference of discrimination against African-American jurors in this matter.
In Harris, supra, 57 Cal.4th at page 835, the defendant relied on the relative dearth of African-American prospective jurors, and the fact the prosecutor exercised peremptory challenges against the two who had been called to the box. "This numerical showing alone, however, falls short of a prima facie showing [citation] because the small number of African-Americans in the jury pool makes 'drawing an inference of discrimination from this fact alone impossible.' [Citations.]" (Ibid., citing case finding no inference of discrimination when prosecutor excused two of the three African-American women on the panel, and stating that as a practical matter the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion]; see also, People v. Hoyos (2007) 41 Cal.4th 872, 901 [striking three of the only four Hispanics on the panel did not establish prima facie case].)
Defendant argues the prosecutor's "desultory" voir dire of Ms. B. supports an inference of discrimination, because the prosecutor asked, "Do you believe that law enforcement, when a crime is committed, will just open up the phone book, pick a person and say, 'That will be our guy for today?' " Ms. B. answered, "No" before the trial court sustained defendant's objection. Defendant notes Ms. B. had just expressed her opinion that a person could be coerced into confessing under certain circumstances, and he argues the prosecutor's question was not only inappropriate but also supports an inference that the prosecutor was discriminating against Ms. B. based on her being African-American.
Defendant appears not to understand that "desultory" means cursory, superficial, or lacking in purpose. (Bonilla, supra, 41 Cal.4th at p. 343 [cursory]; Merriam-Webster's Collegiate Dictionary (11th ed. 2006) pp. 307 [cursory], 339 [desultory].)
Voir dire was not desultory. The prosecutor asked about the sister with whom Ms. B. lived; referred to Ms. B.'s prior statement that home invasions and graffiti are "rampant" in her neighborhood; asked if it was her current or prior neighborhood (she said current); asked if Ms. B. had ever witnessed any conduct in her neighborhood that concerned her; and elicited that Ms. B. had called police and cooperated with them and provided videotape from her surveillance camera when a neighbor's home was subjected to a home invasion. Following up on Ms. B.'s stated belief that some people may not report crimes due to fear, the prosecutor asked, "[f]ear resulting from what?" to which Ms. B. responded, "Personal injury." The prosecutor then questioned Ms. B. about her prior statement that innocent people sometimes confess under coercion and asked what that meant to Ms. B., who explained it might be under duress and depended on what the investigators were looking for. If police wanted to wrap up a case or had their "hearts set on" something, they might pursue someone who is actually innocent.
The prosecutor's questioning of Ms. B. was not desultory and does not support an inference of racial discrimination.
Defendant made no showing supporting an inference of discrimination as to Ms. B.
Under a heading arguing that the court should not engage in judicial speculation that the prosecutor had race-neutral reasons for exercising peremptories, defendant suggests a comparative analysis might show the prosecutor's acceptance of Caucasians to whom similar reasons might apply. However, we do not conduct a comparative analysis at the prima facie stage, where our review does not hinge on the credibility of the prosecutor's proffered reasoning. (People v. Sanchez (2016) 63 Cal.4th 411, 490.)
Defendant invokes People v. [Rene] Gutierrez, supra, 2 Cal.5th 1150, which held the reviewing court was required to do a comparative analysis. However, that was a third-stage case where the trial court had already found a prima facie showing of discrimination; the People did not dispute that finding; and the question on appeal was the credibility of the prosecutor's stated reasons for exercising the peremptory challenges. The court should not speculate about other reasons that may have but did not sway the prosecutor. Moreover, defendant in his opening brief offers no comparisons from the record but merely expresses his view that the prosecutor's explanations do not appear genuine. However, while the prosecutor did state in the trial court that she had, and had expressed, nondiscriminatory reasons, she did not, and was not asked to, state her reasons on the record -- other than her reference to graffiti for defendant's first Batson objection. We do not, and need not, attribute to the deputy district attorney the neutral reasons identified in the Attorney General's respondent's brief on appeal.
Defendant's reply brief says a different prospective juror gave similar answers that she had heard of people giving false confessions. However, we do not consider new points raised for the first time in a reply brief. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Moreover, the defense exercised its eighth peremptory challenge to remove that prospective juror, even before the prosecution exercised its 11th challenge to remove Ms. B.
The trial court properly concluded that defendant's second Batson objection failed to support an inference of unlawful discrimination.
c. Mr. D.
We assume, as did the trial court, that Mr. D. is Hispanic. (People v. [Rene] Gutierrez, supra, 2 Cal.5th at p. 1156, fn. 2 [Spanish surname may support inference of discrmination].)
The basis for defendant's objection in the trial court was the percentage of peremptories used on people of color, "Four out of 12, that's 33 percent" (apparently including the Filipina to which defendant raised no Batson objection and the African-American).
On appeal, defendant offers no argument specific to Mr. D. Given the undisputed observation by the trial court that San Joaquin County has a lot of Hispanics, defendant again fails to show a prima facie case.
d. Ms. J.W.
Assuming for the sake of argument that Ms. J.W. was Hispanic, though her surname was not Hispanic, defendant failed to show a prima facie case.
As noted by the trial court, the prosecutor had passed the challenge twice with Ms. J.W. still on the panel, and five Hispanics still remained after the prosecutor excused Ms. J.W. This strongly suggests that ethnicity was not the motive for her exclusion. Manibusan, supra, 58 Cal.4th 40, in rejecting the defendant's claim of gender bias, noted the prosecution had accepted the jury as constituted six times with multiple women on the panel. (Id. at p. 84.) "The prosecution's acceptance of panels containing other women strongly suggests that gender was not a motive . . . . [Fn. and citations omitted.]" (Ibid.)
When defendant made his fourth Batson motion, the prosecutor had exercised three of 13 peremptory challenges on Hispanics.
Insofar as defendant suggests statistical disparity based on percentages in the venire, he fails to present evidence of those figures. (See, e.g., People v. Pearson (2013) 56 Cal.4th 393, 422 [no prima facie case where prosecutor used 50 percent of peremptories against African-Americans, who comprised only 12.5 percent of the 24-member panel, where it was only the second challenge exercised by the prosecutor, and the record suggested race-neutral reasons]; People v. Streeter (2012) 54 Cal.4th 205, 223 [no prima facie case where prosecutor used 60 percent of peremptories to excuse African-American prospective jurors, who comprised only 28 percent of those called to the jury box during voir dire].) Defendant offers no evidence of any group's percentage of the venire.
Insofar as defendant seeks to rely merely on an argument that the prosecution used a disproportionate number of its peremptories against a particular group (Harris, supra, 57 Cal.4th at p. 835), the prosecution's use of three of 13 challenges to excuse Hispanics does not support an inference of discrimination in this case, because five Hispanics remained and were sworn in as jurors, the prosecution did not exhaust all its challenges, and the prosecution used several of its challenges to excuse Caucasians. Cunningham, supra, 61 Cal.4th 609, found no inference of discrimination where the prosecutor exercised eight peremptories (two of them on alternates), of which three were used to remove African-Americans, but the prosecutor passed two African-Americans who ultimately were seated on the jury. (Id. at p. 664.) " 'Although the circumstance that the jury included a member of the identified group is not dispositive [citation], "it is an indication of good faith in exercising peremptories . . ." and an appropriate factor to consider in assessing a [Batson/Wheeler] motion.'].) The prosecutor's use of three of eight (or 38 percent) of his peremptory challenges to excuse African-American prospective jurors, particularly where the other two African-American prospective jurors were passed and seated on the jury, 'does not support an inference of bias.' [Citation.]" (Cunningham, supra, 61 Cal.4th at pp. 664-665; see also, Lancaster, supra, 41 Cal.4th at p. 76 [no prima facie showing where four women of cognizable group remained on panel at the time of Batson objection, and three of those four ultimately served on the jury].)
Additionally, the prosecutor's first six challenges were to "Anglos," as apparently were her ninth and 10th challenges to which defendant raised no objection. And the prosecutor twice passed on a chance to exercise a peremptory challenge with Ms. J.W. sitting in the box, before finally using the 13th peremptory to excuse Ms. J.W. Failure to exercise an available challenge against minorities may be considered in determining whether a prima facie case exists. (Lancaster, supra, 41 Cal.4th at p. 76.)
We see no basis for reversal of the trial court's denial of defendant's Batson/Wheeler motions.
II
Defendant's Statements to Police
Defendant argues the trial court erred in denying his motion to suppress and exclude from evidence his admissions to police on the grounds that (1) the police violated Miranda v. Arizona (1966) 384 U.S. 436, and (2) his statements were involuntary. There is no basis for reversal.
A. Background
1. The Interrogation
On Friday, December 14, 2007 (five days after the shooting), at around 8:30 a.m., police executing search and arrest warrants arrested defendant at his home as he attempted to jump out a window. Two detectives (Rodriguez and Silva) interviewed him at the police station beginning at 9:24 a.m. We have reviewed the videotape and transcript; defendant does not claim any inaccuracies in the transcript.
The detective told defendant, "we need to ask you some questions and go over some things." They got his name, address, phone number and date of birth, and then the following:
"Q [Rodriguez]: . . . You know, before we go forward, it might be best if I read you some -- your Miranda rights. Have you been read these before?
"A: No. I mean, I have, but not when you guys got me.
"Q: Okay. Well, it's important, I want to make sure you -- you understand, okay? You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to talk to a lawyer and have him or her present with you while you're being questioned.
"A: Right now?
"Q: If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
"A: I don't even know what you guys need to talk to me about.
"Q: Do you understand each [of] those rights I've explained to you?
"A: Yeah I know what -- yeah but . . .
"Q: Okay. Well that's what -- I don't -- I want to talk to you, I want to answer all your questions, okay? Do you want to talk? Do you want to . . . ?
"A: No, uh, what is this about? I mean, you know . . .
"Q: Well first I want to make sure you understand this.
"A: Yeah I understand it now.
"Q: Okay.
"A: [A]bout the rights and stuff.
"Q1 [Silva]: (Unintelligible) your . . .
"Q: We're doing [a] follow up in an investigation.
"A: Yeah.
"Q: Your name had come up.
"A: Mm-hm.
"Q: Okay? We wanted to bring you down here to sit down and -- and go over everything with -- with you, okay? To make sure . . .
"A: All right.
"Q: . . . you understand -- make sure we're all on the same page.
"A: Okay.
"Q: All right?
"A: All right."
The detective said defendant's father was at the station, was a bit upset, and also wanted some answers.
The detective asked some background questions. Defendant admitted his membership in the Vickystown gang. When asked if he ever went to the flea market, he said no. When asked where he was the past weekend, he said he stayed home. Police asked, "Why do you think you're here?" Defendant said he did not know, did not know why police raided his house that morning, and "that's what I'm asking you." Defendant said he ran from the house because the intrusion scared him, but he stopped when he saw it was the police.
The police showed defendant some photographs of people; he said he did not know them but may have seen them around. Defendant admitted his nickname is Joker.
Defendant was asked and again denied having been at the flea market on Sunday. The detective said he saw defendant on the surveillance video. Defendant said he did not remember being there. He did not remember being with "Flaca" (Carina) or Martha.
The detective said defendant was under arrest in a homicide investigation. From what the detective understood, it was an accident. Defendant said he did not know. The detective said it was either an accident or a cold-blooded murder, he did not know which. Defendant said he did not know either.
The detective pointed out that, for SWAT to enter defendant's home as it did and point guns at his mother and other family members, the police had to go before a judge and get a warrant. So it was obvious "we've talked to a lot of people." Defendant again professed ignorance. The detective said defendant was going to jail for murder; people identified him as being there; and his fingerprints were in the car. Defendant repeated he knew nothing. When asked if he was on medication or drugs, he said no.
The detective revealed more of what they knew: Defendant was in a car with others including a child. He got out. Two people went up to a person, then got back in the car. The others did not do anything except be in the car. The detective said, "Okay, you want to destroy all their lives, that's up to you. Everybody can go to jail. It doesn't matter to me 'cuz I love putting people in jail." Defendant repeated he knew nothing.
The other detective said he believed it was an accident, but "there's a lot of people that possibly may be going to jail because of this." Defendant repeated he knew nothing. The detective asked, "Do you want to be responsible for destroying their lives and disrupting their family?" Defendant said the police were trying to get him to take blame for something he did not do. The detective said they wanted him to be honest, and we all make mistakes "when we're kids" and still do as adults. Defendant repeated he knew nothing.
The interrogation continued:
"Q1: I'm telling you right now, you -- you've been placed there.
"A: Well let me see the evidence. I want to see it.
"Q1: What exactly do you want to see?
"A: Well you're saying I was placed there. Well let me see how was I placed there.
"Q1: The people that live out there, they saw you there.
"A: Oh really? Let me see.
"Q1: Okay. The people that were in that car . . . said you were there.
"A: Well let me see. And then . . .
"Q1: You want to see the people?
"A: . . . (unintelligible) let me talk to 'em.
"Q1: No, you're not gonna talk to them.
"A: No, to the people that said I was there. You know?
"Q1: Who . . . was in the car?
"A: Well who are you saying that placed me there, you know? I don't -- I mean, how the fuck am I gonna know who's placing me there, you know?
"Q1: Let's go back a little bit. Now we know that you're at the flea market with a couple of girls.
"A: I don't know."
And so it went for another 10 pages of transcript. The detectives indicated they now believed the "other guy" who said defendant was the shooter. They were through and would book defendant. Defendant asked for something to drink. The detectives left defendant alone.
The detectives had a recorded conversation with defendant's brother, Ruben Cardenas. In that conversation, the detectives said they had just spoken with defendant and were investigating an incident that happened over the weekend and had been talking to people who were all saying it was some type of accident. Ruben said defendant said he went to the flea market on Sunday. The detectives asked if Ruben worried about defendant going to the flea market where there were often problems with Surenos. Ruben said he used to be involved with gangs but grew out of it and tried to keep his brother out of trouble but "he's still a little kid. He's . . . hard-headed" and was not going to listen for a while until he gets older.
The detective said, "After today, he ain't no youngster anymore" and "He's going to go to jail or he's going to go away for a long time." "When we started on this case, . . . you know, we thought we were going to talk to him about an accident. And for whatever reason he's not being totally honest with us. So that only means to us -- the worst case scenario, that what happened, he meant to happen." "We're investigating a murder. He's been identified as being there and being involved. The scenario that his friends . . . came forward and said, 'Hey, it was just an accident. He didn't mean to do that.' And just like you said, he's a good guy. But [when we] talked to your brother, the hard-headed part of him -- 'I wasn't there. I don't know what you're talking about.' And that's the worst thing he could do for himself. And I know part of that is he's 17 years old . . . ."
Ruben said he did not know what happened, he was not there, and although it seemed something was bothering defendant when he got home that day, defendant did not share but told Ruben not to worry about it.
The detective said he thought it started like a "big goof" and then an accident happened. The detective cared about defendant because he is a 17-year-old kid who deserves a chance. Ruben said he had messed up his life with drugs and auto theft but he now has a job and is trying to clean up his life and steer defendant away from trouble.
The detective said, "I'm telling you he's going to jail."
Ruben asked to talk with defendant.
The detectives let Ruben into the room alone with defendant and recorded their conversation, some of which was unintelligible as they tried to keep their voices down.
Ruben asked, "What did you do?" Defendant said, "Nothing (unintelligible) none of that." The brother said to tell the police it was an accident; that "They're telling me to tell you to talk and they're not going to give you a shit load of time because they say it was an accident. . . ." Defendant asked what Ruben thought, Ruben said he did not know and then said to say it was an accident, "Everyone is saying it was an accident." Defendant asked, "Even Flaca [Carina]?" Ruben did not know.
Defendant asked, "Do you think that I should tell my lawyer instead, fool?" Ruben's reply was unintelligible. Defendant then said, "I won't tell my lawyer anything." Ruben told defendant to ask what deal he could get. Defendant said, "To my lawyer?" Ruben said to ask the police what deal they could give him because it was an accident.
The detective resumed interrogating defendant and said he had been talking to people (defendant's father was at the station) and did not think defendant was "some cold-blooded killer" and was asking defendant to explain what happened. Defendant said it was an accident; he "just panicked"; he did not know the victim and was just trying to take his phone. Defendant and Mendez "were walking behind him so we could get his phone. And then he stopped and . . . my homey told him, 'Hey, give me your phone.' And that fool said, 'No.' And then they were talking and then, no, it just happened by accident. It just happened. I -- I didn't -- I didn't mean to. I was just -- I wasn't even looking at him, you know? I was just looking around seeing no one's coming." Defendant said, "I guess put [sic] too much pressure on and just shot while they were talking . . . I guess I pushed too -- I just went like that a little and then I just heard it. I just heard the pop." Defendant saw his friend running, panicked, and ran too.
Defendant said he did not know the name of his accomplice or the person who gave him the gun and did not know what kind of gun it was.
The detective asked, "Did you guys touch him? You guys knock him down?" Defendant said, "Mm-mmm." The detective said, "No? Did you guys try going through his pockets?" Defendant said, "Mm-mmm." The detective asked why they did not try to take anything after the gun went off. Defendant said they got scared and ran. "I just seen him fall and I took off . . . ."
The detective asked if Carina was the getaway driver. Defendant said no, she had nothing to do with it.
The police said they knew some guns have sensitive triggers and asked for the gun to test it, but defendant said he threw it from the car but did not remember where. Defendant denied having mental health problems but said he was high on marijuana that day.
2. Motions to Suppress and Exclude Evidence
In this third trial, as in the two previous trials as well as the preliminary hearing, defendant moved to exclude evidence of his admissions to police on the grounds that the police ignored his invocation for counsel (by asking "Right now?") and coerced an involuntary statement by implied promises of leniency, deceptive interrogation tactics, and threats to his family. Defendant presented evidence at the various hearings. Judge Van Oss presided at all three trials and considered the cumulative evidence from all the evidentiary hearings in denying the motion at the third trial. Defendant's factual summary in his appellate brief cites various testimony adduced in hearings on the suppression motion, without distinguishing at which trial it was adduced.
At the first trial in 2009, defendant's motion to suppress argued his Miranda rights were violated because he invoked his right to counsel by asking "Right now?" and did not expressly waive his Miranda rights. He argued various considerations weighed heavily against finding a voluntary Miranda waiver: His immature age of 17 years, lack of education, lack of involvement with the criminal justice system, lack of explicit waiver of his Miranda rights, invocation of right to an attorney by asking "Right now?," and "mental capacity" in that police questioned him after waking him from a sound sleep at his house. The motion also argued defendant's statements were coerced and involuntary because the detectives (1) implied leniency for an accidental killing, even though accident is no defense to felony-murder, and (2) used defendant's brother Ruben as an agent of police to persuade defendant to admit to an accidental killing.
At various suppression hearings, defendant testified he asked for a lawyer "right now" but the police ignored him. He was confused and so did not repeat his request. Defendant's brother Ruben testified he understood the detective to be saying it would go easier on defendant if it was an accident, and the police needed Ruben's help to "knock some sense" into him. The detective testified he did not say or suggest to defendant's brother Ruben that defendant would get a lighter sentence if he admitted to an accidental shooting. The detective, whose conversation with Ruben was recorded, did not ask Ruben to do anything on behalf of the police. They put Ruben in the room with defendant at Ruben's request.
The defense had a professor testify about coercive techniques in police interrogation. The defense also had John Chellsen, a clinical and forensic psychologist, testify he gave defendant IQ and achievement tests and concluded defendant "falls in what's termed the borderline range of ability, which falls between the mildly retarded range and the low average range." His score was three points above what psychologists considered the cutoff for retardation. Persons at that level could function at a basic level of occupations skills. The expert testified he had no opinion whether defendant's level of cognitive ability made him highly suggestible.
In the first trial, the trial court denied the motion to suppress, explaining the videotaped interrogation showed defendant knew he had a right to a lawyer but did not ask for one, and defendant clearly did not feel coerced by the detectives, because he was not willing to accept their representation that they had evidence against him but instead challenged them to show him whatever evidence they had against him. The videotaped conversation between defendant and his brother indicated defendant understood that he was facing incarceration even if the shooting was accidental. The brother may have had something to do with defendant's decision to admit involvement, but defendant's words and body language during the interrogation satisfied the trial court that defendant's will was not overcome by police inducements, and defendant was well able to stick up for himself and defend himself throughout the interview. The trial court also found admissible the videotaped interrogation of Mendez, whose description of events supported a possibility that the discharge of the gun was accidental.
In the second trial in 2010, the defense declined to stipulate to the prior record and so at the hearing on the motion to suppress or exclude the evidence, the detective testified and defendant testified.
In the second trial, the court denied the motion to exclude evidence, stating: "I have had the benefit now of watching again the video recording of the defendant's interview. I have watched recording or read the transcript of [brother] Ruben Cardenas' interview. I have had the opportunity to review all the transcripts here and see the testimony . . . . [¶] And the Court finds that there were no improper inducements, no improper coercion, that the statement was completely voluntary and was -- the defendant was properly advised of his rights and waived them." The court added it was relying on Florida v. Powell (2010) 559 U.S. 50 , which the court considered significant but was not going to spend the time to explain on the record.
In the third trial in 2011, defendant again moved to exclude the evidence but asserted the new motion was "more exhaustive" and this was "a whole new trial," and so he wanted a new evidentiary hearing with testimony. The judge said he had presided at all three trials; this motion repeated the same arguments as the prior motions; and the court saw no reason for a new hearing unless the defense had new factual developments not disclosed in the written motion. The defense had none.
The court denied the motion, stating: "There was no misconduct connected with this statement that would [in] any way make it subject to being excluded on either Miranda or voluntariness grounds, and so the Court has ruled on it and I think that's the end of it."
The court also indicated its prior ruling was "law of the case." We do not rely on this reasoning, because that doctrine deals with the effect of an appellate court's decision on a subsequent retrial of the same case. (People v. Barragan (2004) 32 Cal.4th 236, 246.) It is apparent the judge did not consider his hands to be tied by the prior ruling.
In the third trial, defendant testified -- and defense counsel argued to the jury -- that defendant was not involved in these crimes, and the police ignored defendant's request for counsel and coerced him and others to make involuntary, false statements. Defense counsel also argued this case involved accidental discharge of a gun.
B. Analysis
1. Miranda
Defendant claims he unequivocally invoked his right to counsel or at a minimum made an ambiguous statement obliging the detectives to clarify. We conclude there was no unequivocal request, and any ambiguity was clarified.
a. General Principles
"[T]o counteract the coercive pressure inherent in custodial surroundings, 'Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent . . . [or] wants an attorney, the interrogation must cease . . . . Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the "high standar[d] of proof for the waiver of constitutional rights . . . ." ' " (People v. (David Earl) Williams (2010) 49 Cal.4th 405, 425 (Williams), citing Maryland v. Shatzer (2010) 559 U.S. 98 .) The prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. (Williams, supra, 49 Cal.4th at p. 425; accord, People v. Nelson (2012) 53 Cal.4th 367, 375 (Nelson).) Although there is a threshold presumption against finding a Miranda waiver, ultimately the question becomes whether the waiver was voluntary, knowing, and intelligent under the totality of the circumstances. (Nelson, at p. 375.)
With respect to an initial waiver before commencement of interrogation (as opposed to a subsequent invocation of the right to counsel during questioning), there is no "predetermined form" for a valid waiver. (Williams, supra, 49 Cal.4th at pp. 427-428.) Waiver may be implied. A defendant's willingness to answer questions after acknowledging an understanding of Miranda rights will often constitute an implied waiver under the totality of the circumstances. (Berghuis v. Thompkins (2010) 560 U.S. 370, 383-384; Cunningham, supra, 61 Cal.4th at p. 642; Nelson, supra, 53 Cal.4th at p. 375 [15-year-old who had two prior arrests impliedly waived Miranda rights by answering questions after stating he understood those rights].)
"Determining the validity of a Miranda rights waiver requires 'an evaluation of the defendant's state of mind' [citation] and 'inquiry into all the circumstances surrounding the interrogation' [citation]. When a juvenile's waiver is at issue, consideration must be given to factors such as 'the juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.' [Citations.]" (Nelson, supra, 53 Cal.4th at p. 375.) Nelson cited Fare v. Michael C. (1979) 442 U.S. 707 , which held a juvenile's query "Can I have my probation officer here?" was not a per se invocation of Miranda rights, and the totality of circumstances supported the trial court's finding of a voluntary and knowing waiver. (Nelson, at p. 375.)
In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds, we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. (People v. Duff (2014) 58 Cal.4th 527, 551.) We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. (Ibid.) Where, as here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review. (Ibid.)
Defendant argues he unequivocally invoked his right to counsel or at least ambiguously invoked. We explain there was no unequivocal invocation, and any ambiguity was adequately clarified.
b. Unequivocal Invocation
As to unequivocal invocation, defendant characterizes his question "Right now?" as a major event, with defendant "hunching over the table closer to" the detective, raising his (defendant's voice), and with defendant's "eyes wide open pointing his index finger down on the table[.]" But our viewing of the DVD shows defendant was already "hunching," i.e., sitting at the table leaning on his forearms, before the Miranda reading, and there was nothing noteworthy about his voice, facial expression, or gestures.
Defendant relies on a federal case -- Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995 (Alvarez) -- for the supposed proposition that an inquiry into immediate availability of counsel is an unambiguous invocation for counsel.
In Alvarez, the officer read the Miranda admonishment and asked if the defendant wanted to waive those rights. (Id. 185 F.3d at pp. 996-998.) The defendant asked, "Can I get an attorney right now, man?" The officer responded, "Pardon me?" The defendant repeated, "You can have an attorney right now?" The officer said, "you can have one appointed for you, yes." The defendant asked, "Well, like right now you got one?" The officer said, "We don't have one here, no. There's not one present now." (Id. at pp. 996-997.) Another officer said, "There will be one appointed to you at the arraignment . . . ." (Ibid.) The defendant said, "All right" and "I'll talk to you guys" and answered "Yeah" when asked if he wanted to talk to them without a lawyer. (Id. at p. 997.)
The Ninth Circuit said Alvarez's thrice-repeated questions, when considered together, constituted an unequivocal request for an attorney. (Alvarez, supra, 185 F.3d at p. 998.) Moreover, the Ninth Circuit disagreed "with the district court's conclusion that the officers 'clearly believed that Petitioner was merely asking clarifying questions regarding his right to counsel,' and answered those questions in 'good faith.' The correct answer to each of Alvarez's three questions, after all, was a simple unambiguous 'yes' " because "[t]here were some 40-50 signs posted throughout the jail area informing arrestees of the around the clock availability of Miranda duty lawyers. Alvarez was not taken through this area." (Alvarez, at p. 998 & fn. 3.)
The Ninth Circuit Alvarez case was distinguished by the California Supreme Court in Williams, supra, 49 Cal.4th 405. In Williams, the defendant answered yes when asked if he gave up his right to remain silent, but when the police then asked if he wished to give up the right to speak to an attorney and have one present during questioning, the defendant answered with a question: " 'You talking about now?' " (Id. at p. 426.) The officer asked, " 'Do you want an attorney here while you talk to us?' " The defendant said yes. An officer said, " 'You don't want to talk to us right now' " (which was a Saturday afternoon). The defendant said, " 'Yeah, I'll talk to you right now.' " The officer said, " 'Without an attorney.' " The defendant said, " 'Yeah.' " The officer said, " 'let's be clear . . . [I]f you want an attorney here while we're talking to you we'll wait till Monday and they'll send a public defender over, unless you can afford a private attorney . . . .' " The defendant said, " 'No I don't want to wait till Monday' "; he wanted to " 'talk now.' " (Ibid.) The officer asked, " 'do you want to talk now because you're free to give up your right to have an attorney here now?' " The defendant said yes. (Ibid.)
Williams held the defendant did not invoke his right to counsel. (Id. 49 Cal.4th at pp. 426, 429-430.) The Supreme Court said the defendant's question "You talking about now?" suggested that "his willingness to waive the assistance of counsel turned on whether he could secure the presence of counsel immediately. This suggestion is reinforced by his answers to the officers' requests for clarification." (Id. at p. 426.) Once the question whether counsel could be provided immediately had been resolved, the defendant had not the slightest doubt that he wished to waive his rights and commence the interrogation. (Id. at p. 427.)
In distinguishing the Ninth Circuit's Alvarez opinion, the California Supreme Court in Williams, supra, 49 Cal.4th at page 430, said that "[i]n addition to denominating the questions, in context, as a clear invocation of the right to counsel, the [Alvarez] court explained that it was evident the police were not merely seeking clarification but sought to undermine the defendant's intent to assert his rights. The court apparently reached this conclusion because, in fact, there were attorneys available 24 hours a day to a suspect who invoked the right to counsel prior to interrogation. [Citation.] In the present case, by contrast, in context defendant's statements suggested some ambiguity -- sufficient ambiguity that a reasonable officer would be uncertain of defendant's actual intent." (Williams, at pp. 430-431.)
Here, defendant argues the detective was required to answer "yes," that counsel was immediately available. But he cites no evidence or supporting authority. Law enforcement "[a]uthorities are not required to have an attorney on call for the purpose of custodial interrogation. [Citations.]" (Williams, supra, 49 Cal.4th at p. 429.) Whether or not counsel was immediately available, the police here, unlike Alvarez, did not seek to undermine the assertion of rights by telling defendant that invocation of the right to counsel would cause a delay.
There was no unequivocal invocation of the right to counsel.
c. Ambiguity
Insofar as defendant's comments (asking "Right now?" and answering "No" when asked if he wanted to talk) could be construed as an ambiguous invocation of right to counsel, there was adequate clarification and no Miranda violation.
In Duff, supra, 58 Cal.4th 527, after reading the Miranda rights, the police asked if the defendant understood his rights, and he said yes. (Id. at p. 552.) The detective asked if the defendant wanted to talk with police. The defendant said, "I don't know. Sometimes they say it's -- it's better if I have a -- a lawyer." (Ibid.) The detective agreed people sometimes say that, and it was entirely up to the defendant, and in most cases people who talk to the police give other leads for police to pursue or provide names of people who can verify whereabouts, and the defendant could stop the interview whenever he wanted. The defendant said he understood. The detective asked, "So are you willing to talk," and the defendant said "Yeah." The detective said she wanted the defendant to feel confident with that and asked if he felt confident, and he said yes. (Ibid.) She told him to keep his rights in mind and tell her if he wanted to stop. (Id. at p. 553.)
On appeal, the defendant in Duff argued that his comment about a lawyer was at least an equivocal invocation of the right to counsel that placed the detective under a duty to clarify his wishes and obtain a clear and unequivocal waiver, and she did not do so. (Id. 58 Cal.4th at p. 553.)
The Supreme Court assumed there was an ambiguity requiring clarification but concluded there was no Miranda violation. Because the defendant's reference to a lawyer occurred at the beginning of questioning, the rules respecting pre-Miranda waiver invocations of the right to counsel applied. (Duff, supra, 58 Cal.4th at p. 553.) Thus, the postwaiver rule, rejecting any duty to clarify ambiguities and permitting an officer to continue substantive questioning unless and until the suspect clearly requests a lawyer, did not apply. (Ibid.)
The Supreme Court said: "In the face of an initial equivocal reference to counsel, we have held that an officer is permitted to clarify the suspect's intentions and desire to waive his or her Miranda rights. [Citation.] The Ninth Circuit has explicitly declared that an officer not only may, but must [orig. italics], clarify the suspect's intentions before initiating substantive questioning. (U.S. v. Rodriguez [(9th Cir. 2008) 518 F.3d 1072,] 1080 ['Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation']; but cf. Berghuis v. Thompkins, supra, at p. 387 [rejecting the argument that a clear waiver must always precede questioning because '[t]he Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions.'].) We [California Supreme Court] have occasionally implied [sic] the same rule as the Ninth Circuit's [sic]. (See, e.g., People v. Box (2000) 23 Cal.4th 1153, 1194 ['If a suspect's request for counsel or invocation of the right to remain silent is ambiguous, the police may "continue talking with him for the limited purpose [orig. italics] of clarifying whether he is waiving or invoking those rights]." ' [Citation.]" (Duff, supra, 58 Cal.4th at pp. 553-554; see also, United States v. Rodriguez, supra, 518 F.3d at pp. 1078-1081 [park ranger was required to clarify whether suspect's response to request for express waiver of Miranda rights -- "I'm good for tonight" -- meant he was willing to talk or was invoking his right to remain silent; inference of implied waiver inappropriate because ranger did not begin questioning right away but left the suspect alone and a different officer began the questioning a short time later]; note Box, supra, 23 Cal.4th was disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
Duff continued: "Even so, no Miranda violation occurred here. If we assume Duff's remark was an equivocal invocation of the right to counsel and that [the detective] was obligated to clarify Duff's desire to waive his rights before proceeding with the interrogation, she did so. Before asking any other questions, [she] reiterated that the decision whether to talk was 'entirely up to [Duff]' and he could 'at any time . . . stop the interview.' She then asked directly, 'So are you willing to talk about the -- you know, where you were and that kind of thing?'; he replied, 'Yeah.' She asked again, ' . . . I just want you to feel confident with that. You do feel -- you feel confident with that?'; he repeated, 'Yeah.' She confirmed a third time, '[Y]ou keep your rights in mind. And if at some time, you know, you don't feel like answering another question, then you -- you just tell me no. Okay?'; he assented a third time to speak with her. We agree with the trial court that [the detective] was not under a legal obligation to follow any particular script in ascertaining Duff's desires; she did not badger Duff but instead lawfully 'proceeded to talk to him to see whether or not he wanted to talk without having to ask him specifically to clarify his ambiguous statement any more than he did by continuing to talk.' (See People v. Clark (1993) 5 Cal.4th 950, 991 [no Miranda violation where the 'interrogators did not ask defendant substantive questions until defendant's position was clarified and a valid waiver was obtained' and 'no coercive tactics were employed in order to obtain defendant's Miranda waiver.'].)" (Duff, supra, 58 Cal.4th at p. 554.)
Here, we will assume defendant did raise an ambiguity by asking "Right now?" when told of his right to consult an attorney and by responding, "No, uh, what is this about?" when police asked, "Do you want to talk? Do you want to
We further assume the police had the obligation to clarify defendant's desires before proceeding with substantive questioning.
The police did so clarify, by asking if defendant understood his rights, and he said yes he did, and then by the police saying they wanted to sit down and "go over everything with -- with you, okay?" Defendant said, "All right." Nothing more was required.
Defendant argues his implied waiver of the right to counsel was not valid, in light of his lack of maturity, low IQ, limited education, and supposed unfamiliarity with the criminal justice system or Miranda. As found by the trial court, the videotaped interrogation shows no reason for the detectives to question defendant's capacity. And defendant got along just fine. He stuck to his denials for an extended period of time, despite being told that others had implicated him, and defendant even had the presence of mind and confidence to demand to see what evidence the police had against him and to talk to the witnesses.
Furthermore, the record demonstrates that defendant made an affirmative and voluntary decision to speak with the police without an attorney present. Thus, in defendant's tape-recorded conversation with his brother -- which occurred before defendant made any incriminating statements to police -- defendant said, "Fuck it. I'm going to tell them that it was an accident," but then asked his brother, "Do you think that I should tell my lawyer instead . . . ?" The brother's answer was unintelligible. Defendant said, "No, I won't tell my lawyer anything . . . ."
Defendant argues the trial court erred by expressly relying on Florida v. Powell, supra, 559 U.S. 50, which found that the form of the Miranda warnings -- telling the suspect he had the right to talk to a lawyer before answering any questions but also telling him "[y]ou have the right to use any of these rights at any time you want during this interview" -- reasonably conveyed to the suspect that the right to counsel applied "during" interrogation. (Id. at pp. 54, 62.) Defendant argues Powell does not address the question at issue here. We do not rely on Powell.
On appeal, defendant claims the police violated Welfare and Institutions Code section 627, which requires that police who take a minor into custody must tell him he has the right to two phone calls, to a parent and an attorney, and willful deprivation of this right is a misdemeanor. However, defendant's father was already there, and defendant knew it, and the Miranda advisement informed defendant of his right to an attorney. In any event, defendant concedes the exclusionary rule does not compel suppression of statements for violation of this state statute. (People v. Lessie (2010) 47 Cal.4th 1152, 1161 & fn. 2.)
We conclude the trial court did not err in denying the motion to suppress or exclude defendant's statements to police on Miranda grounds.
2. Coercion
Defendant argues that, regardless of Miranda, his statements to police should have been excluded as involuntary due to coercion by police. We disagree.
Even when a suspect waives his Miranda rights, a confession may be deemed to be involuntary when the police, using physical or psychological coercion, undermine a suspect's ability to exercise free will. (Colorado v. Connelly (1986) 479 U.S. 157, 165-167 .) Factors such as the suspect's age and IQ are relevant. (Ibid.)
We recently reviewed relevant principles in People v. Villasenor (2015) 242 Cal.App.4th 42. In assessing allegedly coercive police tactics, courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. (Id. at p. 71.) Whether a statement is involuntary depends upon the totality of the circumstances surrounding the interrogation. (Ibid.) Relevant considerations include the crucial element of police coercion, the length of the interrogation, its location, its continuity, as well as the defendant's maturity, education, physical condition, and mental health. (Ibid.) Even if a confession is reliable, a free society cannot condone police methods that outrage the rights and dignity of the person. (Spano v. New York (1959) 360 U.S. 315, 320-321 ; People v. Andersen (1980) 101 Cal.App.3d 563, 575.)
"[C]ourts must use ' "special care in scrutinizing the record" ' to evaluate a claim that a juvenile's custodial confession was not voluntarily given. [Citation.] 'If counsel was not present for some permissible reason when [a juvenile's] admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.' [Citation.] Consequently, even when a juvenile has made a valid waiver of the Miranda rights, a court may consider whether the juvenile gave a confession after being ' "exposed to any form of coercion, threats, or promises of any kind, [or] trickery or intimidation . . . ." ' [Citation and fn. omitted.] The constitutional safeguard of voluntariness ensures that any custodial admission flows from the volition of the juvenile, and not the will of the interrogating officers. [Fn. omitted.]" (Nelson, supra, 53 Cal.4th at p. 379.)
Here, defendant argues the detectives coerced him to make false admissions by (1) falsely implying to defendant and his brother that defendant would not get much jail time if he admitted the shooting was an accident (conveying a false distinction between accident and cold-blooded murder in this felony-murder case and impliedly offering leniency), and (2) threatening to put "everybody" in jail. Although defendant cites authority that a threat to arrest a near relative may be coercive (e.g., People v. Matlock (1959) 51 Cal.2d 682, 697), defendant does not assert or cite evidence that the police threatened to put any of his relatives in jail. Rather, he just says the police threatened to jail his friends who were potential accomplices.
The threat to put defendant's friends in jail did not sway defendant, inasmuch as he continued denying any knowledge or involvement for a dozen pages of transcript after the detective threatened to put his friends in jail. We disagree with defendant's unsupported assertion that this fact was irrelevant. A suspect's statement is involuntary only if a threat actually induces him to make the statement. (People v. Linton (2013) 56 Cal.4th 1146, 1176; People v. Lucas (1995) 12 Cal.4th 415, 442, writ of habeas corpus granted on other grounds in In re Lucas (2004) 33 Cal.4th 682.)
As to implied leniency, the detectives did not imply a lesser sentence for an accidental shooting to defendant or his brother. They did ask if defendant wanted "to get your life on track," if he wanted to go to school, get a job, maybe have kids someday. He did. The detective said, "You're going down the wrong road." Defendant said nothing. The detectives said they believed the "other guy" (presumably Mendez) that defendant was the shooter, and "a cold-blooded killer's not gonna make it sound like we're that stupid." After the break for defendant to speak with his brother, the detective said they talked to defendant's family members and saw a different side of defendant, and "you ain't some cold-blooded killer. I -- I know that. But something happened that day. And -- and talking with your brother, he says some -- that you were worried that day, you had a lot on your mind that day and -- and that -- and that's a sign of someone that cares, someone that has a heart, not a cold-blooded killer. So all -- all we're asking is -- is for you to kind of fill in the details as far as what happened, explain what happened." The detectives told Ruben that defendant was "a 17-year-old kid who deserves a chance" but also said "he's going to jail."
The DVDs of the police interrogation of defendant, and defendant's conversation with his brother, satisfy us that the police did not coerce involuntary statements.
Defendant thinks his case is similar to People v. Cahill (1994) 22 Cal.App.4th 296, which found a coerced confession. The cases are not similar. In Cahill, the suspect repeatedly denied being present in the home of the murder victim until the police told him that if he admitted a role in the killing but said he did not premeditate, he might avoid a trial and conviction for first-degree murder. (Id. at p. 315.) The Cahill court presumed the officer knew an admission of presence in the house would amount to a confession of felony murder. (Ibid.)
Here, the police made no representations about charges or sentences to defendant or his brother. Cahill was distinguished in People v. Holloway (2004) 33 Cal.4th 96, which said that a detective's "suggestions that the killings might have been accidental . . . and that such circumstances could 'make[] a lot of difference,' fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent [the detective's] remarks implied that giving an account involving . . . accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might 'flow[] naturally from a truthful and honest course of conduct . . . .' " (Id. at p. 116; see also, Williams, supra, 49 Cal.4th at p. 444 [there is nothing improper in pointing out that jury will probably be more favorably impressed by confession and show of remorse than by demonstrably false denials]; People v. Carrington (2009) 47 Cal.4th 145, 174 [mere exhortation by police to tell truth, unaccompanied by threat or promise, does not render confession involuntary].)
The People note defendant could benefit from an accidental shooting with respect to the enhancement allegation that he intentionally fired the gun (§ 12022.53) and the gang special circumstance which required intent to kill. Defendant replies it is "more likely" he thought he would avoid a first-degree murder charge and LWOP sentence.
We reject defendant's view that his question during booking, as to what was going to happen, proves a coerced confession.
Defendant's reply brief faults the Attorney General's brief for failing to mention Dr. Chellsen's opinion about defendant's intellectual and emotional shortcomings. However, Chellsen did not opine that such circumstances would render a confession involuntary, and the DVD showing the actual interrogation is the best evidence that the confession was not coerced.
We conclude the trial court did not err in allowing evidence of defendant's admissions to police. We need not address defendant's argument that error was prejudicial.
III
Gun Enhancement (§ 12022.53, subd. (d))
Defendant argues the evidence is insufficient to support the jury's finding that he "personally and intentionally discharged" the gun, as is required for the gun enhancement charged under subdivision (d) of section 12022.53: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including attempted robbery] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
In considering a substantial evidence challenge, including a challenge to sufficiency of evidence supporting a sentencing enhancement (People v. Albillar (2010) 51 Cal.4th 47, 59-60), we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) Circumstantial evidence and any reasonable inferences from that evidence may be substantial evidence to support the conviction. (People v. [Royal] Clark (2011) 52 Cal.4th 856, 943.) It is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have proven their case beyond a reasonable doubt. (People v. Casares (2016) 62 Cal.4th 808, 823-824 (Casares).) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
The prosecution charged defendant under section 12022.53, subdivision (d), which provides "any person who, in the commission of a felony specified in subdivision (a) [including attempted robbery (subd. (a)(4) & (18))] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Consistent with this subdivision (d), the court instructed the jury: "If you find the defendant guilty of the crimes charged in Counts One and Two, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing death. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant's act caused the death of a person. . . ."
The jury returned verdicts for felony-murder and attempted robbery finding "True" that defendant Cardenas "personally and intentionally discharged a firearm" proximately causing the victim's death.
The evidence supports the jury's finding that defendant personally and intentionally fired the gun. As to "personally," defendant admitted to police that he was the shooter (though he claimed accidental discharge); he was seen with a gun in Palacios's backyard; and defendant stated when he returned to the car, "I think I shot him." That defendant also denied being the shooter does not render the evidence insufficient to support the jury's finding that he was the shooter. (Casares, supra, 62 Cal.4th at pp. 823-824.)
As to intentional discharge of the gun, defendant ignores evidence favorable to the judgment, i.e., the trajectory of the bullet supports an inference that defendant aimed and fired the gun at the victim, after the victim resisted being robbed. Defendant said that, after the victim resisted, Mendez was "talking" to the victim, and defendant was looking around to see if anyone was coming, and the gun went off on its own. The evidence that the victim was on the ground or bent over when the shot was fired supports an inference that Mendez did more than "talk," and that he either threatened the victim, who crouched or fell, or Mendez pushed the victim to the ground. The evidence shows defendant was unhappy with the victim for resisting. This evidence, together with the extreme coincidence of the bullet connecting with the victim at this odd trajectory, supports an inference that defendant intended to fire the gun.
That defendant did not take any of the victim's property could support an inference that the gun discharge surprised defendant, but it does not afford a ground for reversal because, as noted, our standard of review determines whether evidence supports what the jury decided, not whether the evidence might have supported a contrary finding by the jury. (Casares, supra, 62 Cal.4th at pp. 823-824.)
We conclude substantial evidence supports the jury's finding that defendant personally and intentionally fired the gun that killed the victim.
IV
Felony-Murder Special Circumstance (§ 190.2, subd. (a)(17))
Defendant claims instructional error, insufficiency of the evidence, and unconstitutional vagueness regarding the felony-murder special circumstance (§ 190.2) compared with the felony-murder offense (§ 189). He notes the special circumstance draws an LWOP sentence (§ 190.2, subd. (a)), while the offense allows for a lesser sentence of 25 years to life (§§ 189-190). Defendant fails to show reversible error.
A. Defendant Was the Actual Killer, Not an Aider and Abettor
Most of defendant's arguments depend on his view that the jurors may have found him guilty as an aider/abettor rather than the actual killer who committed the fatal act -- even though the jury found defendant personally and intentionally discharged the gun. Based on defendant's flawed assumption, he invokes differences in the law regarding the person who commits the fatal act (the actual killer) as opposed to an aider and abettor who does not commit the fatal act (the aider/abettor or nonkiller cofelon). The actual killer is subject to the felony-murder special circumstance even if he did not intend to kill and even if he killed by accident. In contrast, an aider/abettor is subject to the felony-murder special circumstance only if he intended to kill or was a major participant who acted with reckless disregard for life.
Thus, the felony-murder special circumstance applies to both the actual killer and an aider/abettor. (§ 190.2, subd. (a) ["The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 [procedure] to be true: . . . [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [¶] (A) Robbery in violation of Section 211 or 212.5. . . ." (§ 190.2, subd. (a)(17), italics added.)
Section 190.2, subdivision (b), provides: "Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true . . , need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer" an LWOP sentence. (§ 190.2, subd. (b).)
Since the felony-murder special circumstance does not require intent to kill, the prosecution did not need to prove the actual killer intended to kill. (§ 190.2, subd. (b); People v. Mil (2012) 53 Cal.4th 400, 408-409; People v. [James Phillip] Anderson (1987) 43 Cal.3d 1104, 1147-1150; People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1383, fn. 7.) "The United States Supreme Court has made clear that felony murderers who personally killed may properly be subject to the death penalty in conformance with the Eighth Amendment -- after proper consideration of aggravating and mitigating circumstances -- even where no intent to kill is shown." (People v. Belmontes (1988) 45 Cal.3d 744, 794, citing Cabana v. Bullock (1986) 474 U.S. 376, 386-387 and Tison v. Arizona (1987) 481 U.S. 137, 157-158 (Tison); note People v. Cortez (2016) 63 Cal.4th 101, 118, overruled Belmontes on a different point.)
But in order to impose the felony-murder special circumstance on an aider/abettor who does not commit the fatal act, the prosecution must prove that the aider/abettor either had the intent to kill (§ 190.2, subd. (c)), or acted with reckless indifference to human life and was a major participant in the underlying felony (§ 190.2, subd. (d)). (Tison, supra, 481 U.S. 137 [death penalty is allowed for aider and abettor who did not commit fatal act but who was a major participant and acted with reckless indifference to human life]; People v. [William Clinton] Clark (2016) 63 Cal.4th 522 (Clark); People v. Banks (2015) 61 Cal.4th 788 (Banks); Mil, supra, 53 Cal.4th at p. 409; People v. Jones (2003) 30 Cal.4th 1084, 1117 [if jury could convict defendant either as principal or accomplice, jury must find intent to kill or reckless indifference if they cannot agree that the defendant was the actual killer]; People v. Odom (2016) 244 Cal.App.4th 237, 251-252, 256.)
Defendant on appeal operates on his assumption that the jury perhaps could not agree whether he was the actual killer as opposed to the aider/abettor, because the prosecutor argued to the jurors that they could find defendant was an aider/abettor but should find he was the shooter. Although not acknowledged by the People on appeal, the prosecutor did argue to the jury that, even though it was clear that defendant was the shooter, if for some reason the jurors believed defendant was not the shooter, they could still find him guilty as an aider and abettor. "Absolutely this defendant is the shooter. That is what all the evidence suggests. But it could possibly be open to another interpretation in the event that someone wants to believe that Ramon Mende[z] was, because he was there as well. [¶] And so the law is there to show you what the responsibility would be in the event that you find under the facts that that could also be a potential."
In this case, we know beyond a reasonable doubt that the jury found defendant was the actual killer, because the jury expressly found defendant personally and intentionally discharged the gun for the section 12022.53 gun enhancement, and the evidence supports this finding. (And as we discuss, post, the evidence also supports the jury finding of intent to kill for the gang special circumstance.)
Under these circumstances, we can easily reject, post, defendant's contentions of instructional error, insufficiency of evidence, and constitutional vagueness. (Hedgpeth v. Pulido (2008) 555 U.S. 57 [instructing jury on multiple theories, one of which is invalid, is not structural error requiring set aside of conviction on collateral review without regard to prejudice, but is subject to harmless error review]; People v. Chun (2009) 45 Cal.4th 1172, 1205 ["If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless"].) The same rule applies "when the prosecution presents the jury with alternative factual scenarios on the basis of which it may convict a defendant, but the evidence is insufficient to support one of those scenarios, the error is not reversible (absent an indication in the record that the verdict actually did rest on the inadequate ground). [Citation.] If, however, an erroneous instruction would permit the jury to convict based on the factually insufficient scenario, a reviewing court will reverse the conviction unless, from the jury's findings, it can determine beyond a reasonable doubt the jury did not in fact rely on the erroneous instruction and factually deficient scenario. (People v. Harris (1994) 9 Cal.4th 407, 416-419.)" (People v. Aguilar (1997) 16 Cal.4th 1023, 1034.)
We turn to defendant's specific contentions.
B. Claim of Instructional Error
Defendant argues the trial court erred in failing to instruct the jury that accident should be considered a defense to the felony-murder special circumstance. However, as we have seen, the actual killer in a felony-murder need not have intended to kill, such that accident would not be a defense for the actual killer in a felony-murder special circumstance, and we know the jury found defendant was the actual killer.
Citing a different rule -- i.e., that the felony-murder special circumstance applies only if the defendant had a felonious purpose independent of murder (e.g., People v. Riccardi (2012) 54 Cal.4th 758, 836 [special circumstance inapplicable if defendant committed burglary with sole purpose of killing victim]; Davis, supra, 46 Cal.4th at p. 609) -- defendant argues, "If the act resulting in death was committed by accident, the defendant should not be subject to special circumstance liability since an accidental act, by definition, cannot be committed for purposes of furthering an independent felonious purpose." This is nonsense. The felonious purpose independent of murder in this case is the attempted robbery, not the discharge of the gun.
And defendant's argument on this point admits, "In this case, the defendant intended to commit a robbery but not a killing."
Defendant quotes from People v. Berryman (1993) 6 Cal.4th 1048, that the defendant must " ' "commit the act resulting in death in order to advance an independent felonious purpose." [Citation.]' " (Id. at p. 1088 [overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1].) Defendant argues the act resulting in death must be done in furtherance of the robbery, which means the act resulting in death must be committed with a certain mens rea, which means the trial court had to instruct on accident which would negate the mens rea.
Defendant's argument is not clear. To the extent he suggests that his departure without the victim's property could show an accidental discharge of the gun unrelated to attempted robbery, we disagree. Berryman -- which was decided under prior law requiring intent to kill and found harmless instructional error on that point -- rejected the defendant's argument that the jury's finding of intent to kill was insufficient because it did not specify he had intent to kill "concurrent with" the rape. (Id. at p. 1089.) The felony-murder special circumstance does not require a strict causal or temporal relationship between the felony and the murder. (Id. at pp. 1088-1089.) It extends even to the situation in which the murder was committed while the defendant was engaged in immediate flight after committing the felony. (Id. at p. 1090.)
Though not clear, it appears defendant thinks the jury may have found his accidental discharge of the gun was unrelated to an attempted robbery. Defendant's recitation of the procedural background states the trial court in this third trial refused to instruct the jury with involuntary manslaughter (CALCRIM No. 580), "even though the defense argued it would give the jury an alternative, if they found there was no attempted robbery." The theory apparently was that the jury could find that the victim died of an accidental gunshot fired, not during an attempted robbery, but perhaps during a mere brandishing of the gun perhaps in a joking manner, since defendant's nickname was "Joker." However, the trial court, in rejecting the manslaughter instruction, aptly concluded there was no basis for the jury to find that defendant was the one who pulled the trigger without accepting that he was following the victim to steal his phone.
Even assuming for the sake of argument that the trial court should have instructed on accident for an aider/abettor theory of felony murder special circumstance, any error was clearly harmless, even under defendant's proposed standard of prejudice calling for reversal unless error is harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 504-505, citing Chapman v. California (1967) 386 U.S. 18, 24 .) "In determining whether instructional error was harmless [under either Chapman or Watson], relevant inquiries are whether 'the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions' (People v. Flood, supra, 18 Cal.4th at p. 485) and whether the 'defendant effectively conceded the issue' [citation]. A reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury . . . .' [citation]." (People v. Eid (2010) 187 Cal.App.4th 859, 883 (Eid).)
Here, the factual question of accident was necessarily resolved adversely to defendant because the jury found he personally and intentionally fired the gun that killed the victim. Defendant does not contend the trial court had a duty sua sponte to instruct on accident regarding the gun enhancement. That the law recognizes a defense of accident does not impose on trial courts a duty so to instruct "sua sponte." (People v. [Paul D.] Anderson (2011) 51 Cal.4th 989, 996; People v. Jennings (2010) 50 Cal.4th 616, 674-675.) The "defense" of accident usually amounts to a mere restatement of the mental state element of a criminal offense. (Anderson, at p. 997 [trial court's responsibility to instruct on accident generally extends no further than the obligation to provide pinpoint instruction upon request].)
The instructions on the gun enhancement would not have allowed the jurors to find the allegation true if the jurors believed that he fired the gun accidentally, because the instructions required the jurors to find that defendant "intended to discharge the firearm," and that "For you to find the allegation of Personal Discharge of a Firearm . . . true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law."
We conclude defendant fails to show any ground for reversal based on instructional error.
C. Sufficiency of Evidence
We granted defendant's request for supplemental briefing concerning recent case law -- People v. [William Clinton] Clark, supra, 63 Cal.4th 522, and People v. Banks, supra, 61 Cal.4th 788. Defendant thinks these cases call into question whether the evidence in this case sufficed to support the felony-murder special circumstance. According to defendant, the gun enhancement merely required the jury to find that he personally and intentionally discharged the gun that caused bodily injury or death -- not that he intended to cause bodily injury or death. He concludes that the jury's finding that he intended to fire the gun does not constitute a finding that he intended to kill.
However, as we have explained, the felony-murder special circumstance does not require a finding that the actual killer intended to kill. (§ 190.2, subd. (b).) Intent becomes an issue only if the defendant was an aider/abettor rather than the actual killer. Both Clark and Banks dealt with defendants who did not commit the fatal act. And they cited United States Supreme Court cases that dealt with capital cases of defendants who did not commit the fatal act, holding aiders/abettors should not be subject to the death penalty unless they intended to kill or were major participants and acted with reckless disregard for life. (Clark, supra, 63 Cal.4th at pp. 609-618, citing Enmund v. Florida (1982) 458 U.S. 782, 797 [to be subject to death penalty, aider/abettor must have intent to kill]; Tison, supra, 481 U.S. at pp. 157-158 [death penalty is allowed for nonkiller who was a major participant and acted with reckless indifference to human life].) Thus, none of those cases control here, because defendant was the actual killer, the person who committed the fatal act.
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610.)
Here, substantial evidence supports the jury's finding that defendant was the actual killer. Nothing more was required for the felony-murder special circumstance.
D. Felony-Murder Not Unconstitutionally Vague
Defendant argues the felony-murder offense (§§ 189-190) and the felony-murder special circumstance (§ 190.2, subd. (a)(17)) are unconstitutionally vague, because the latter allows an LWOP sentence for an accidental killing during a robbery, but the statutes give no notice to the potential offender of the punishment to be imposed and create a danger of arbitrary application whereby an intentional killer may get a lighter sentence than an unintentional killer. Defendant fails to show unconstitutionality.
Defendant argues as follows: Some killings during crimes not amounting to felonies may or may not be murder, but a killing during a robbery automatically "steps up" the crime to first degree murder subject to an LWOP sentence even if the killing was unintentional. According to defendant, this statutory scheme is vague because it makes no meaningful distinction between the felony-murder offense (§ 189) and the felony-murder special circumstance (§ 190.2). Defendant says the scheme would make constitutional sense if an unintentional or heat of passion or defensive killing during a robbery was first degree murder, but only an intentional killing intended to facilitate a robbery rose to the level of a special circumstance bringing a sentence of death or LWOP. Defendant says that triple-counting the robbery (by making the killing a murder, the murder a first degree murder, and the first degree murder a special circumstance murder) and having no distinction between a killing intended to facilitate the robbery and a killing based on some less culpable mental state makes the scheme unconstitutionally vague, and gives the prosecutor unfettered discretion encouraging arbitrary and discriminatory enforcement.
Defendant acknowledges this same argument was rejected by the Fourth Appellate District in People v. Andreasen (2013) 214 Cal.App.4th 70, 79-82 (Andreasen). Defendant argues we should not follow Andreasen, but we find that case persuasive, and in any event defendant's argument again assumes the jury may have found him guilty as an aider/abettor rather than the actual killer, and we know the jury found defendant was the person who committed the fatal act.
The defendant in Andreasen, convicted of first degree murder with a special circumstance of murder during the commission of attempted robbery, argued that the special circumstance, which imposes a sentence of death or LWOP for a murder committed during a felony, was unconstitutionally vague because, as applied to the actual perpetrator of the killing (who need not have intended to kill), the felony-murder special circumstance is indistinguishable from the felony-murder offense, which allows a life sentence with possibility of parole in the absence of a special circumstance. (Id. 214 Cal.App.4th at p. 79.) The defendant argued that, because the prosecution had unfettered discretion to select the charge, he had no way of anticipating whether he would face a sentence without, as opposed to with, possibility of parole. (Ibid.)
"A defendant may raise a substantive due process challenge based on a vague statute that fails to provide reasonable notice or creates a danger of arbitrary application. [Citations.] To pass constitutional muster, a statute must be definite enough to provide notice about what conduct is prohibited, and to provide standards for its application and adjudication to avoid arbitrary and discriminatory enforcement. [Citation.]" (Andreasen, supra, 214 Cal.App.4th at pp. 79-80.)
Andreasen said the statutes provide notice that if one commits a specified felony and kills someone during that felony, he could be subjected to a sentence of 25 years to life with the possibility of parole, life without parole, or death. (Id. 214 Cal.App.4th at p. 80.) "The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute. [Citations.]" (Ibid.)
"[E]ven assuming arguendo that constitutional due process requires a distinction between the felony-murder offense and the felony-murder special circumstance [citations], there is such a distinction . . . [T]he felony-murder offense is established merely upon a showing that the defendant killed during the commission or attempted commission of the felony, whereas the felony-murder special circumstance requires an additional showing that the intent to commit the felony was independent of the killing." (Andresen, supra, 214 Cal.App.4th at p. 80.)
"The purpose of the felony-murder rule 'is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing . . . , whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.' [Citation.] To effectuate this purpose, when a killing occurs during the defendant's commission or attempted commission of one of the felonies listed in the felony-murder statute, the offense of first degree murder is committed without 'the need to plumb the parties' peculiar intent with respect to a killing committing during the perpetration of the felony.' [Citation.]
"There is no requirement of intent to kill for either the felony-murder offense or the robbery-felony-murder special circumstance (unless the special circumstance is applied to an aider and abettor). [Citations.] The courts have repeatedly rejected constitutional challenges to the imposition of the special circumstance punishment on the direct killer, even though the statute can operate to punish a felony murderer who kills unintentionally more harshly than a simple murderer who kills intentionally. [Citations]." (Andreasen, supra, 214 Cal.App.4th at pp. 80-81, italics added.) The reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state. (Id. at p. 81.)
"However, the courts have fashioned the rule that the felony-murder special-circumstance statute can apply only if the murderer had a felonious purpose independent of, or concurrent with, the murder. [Citations.] That is, the felony-murder special circumstance applies 'when the murder occurs during the commission of the felony, not when the felony occurs during the commission of a murder.' [Citation.] If the defendant committed the felony for the sole purpose of effectuating the killing, the felony-murder special circumstance does not apply. [Citations.]" (Andreasen, supra, 214 Cal.App.4th at p. 81, orig. italics.) Andreasen accordingly rejected the constitutional challenge. (Id. at p. 82.)
We agree with Andreasen. As in Andreasen, the jury in our case was instructed that to find the felony-murder special circumstance true (§ 190.2), the People had to prove that defendant intended to commit or aid and abet robbery independent of the killing.
Defendant argues Andreasen's distinction (that the special circumstance adds a requirement of intent to commit a felony independent of the killing) is flawed unless an accidental act is not sufficient to prove the requisite accompanying mental state that the act was purposefully done to advance an independent felonious purpose.
Here, however, the jury found the act was not accidental, and substantial evidence supports that finding.
V
Gang Special Circumstance (§ 190.2, subd. (a)(22))
Defendant argues no substantial evidence supports the gang special circumstance, and the jury instructions erroneously failed to require a finding that defendant harbored intent to kill. Defendant's arguments again depend on his flawed assumption that the jury may have found him guilty as an aider and abettor, rather than the person who committed the fatal act. As we have already explained in connection with defendant's challenge to the felony-murder special circumstance, legal principles for aiders and abettors do not help defendant, because the jury found he was the actual killer who committed the fatal act. We see no basis for reversal of the gang special circumstance.
A. Substantial Evidence
Defendant briefly argues the evidence is insufficient to support the finding needed for the gang special circumstance (§ 190.2, subd. (a)(22)), that he intended to kill. His entire argument is that "except for appellant's denial that he was even there, the undisputed evidence shows the gun discharged accidentally." He assumes the jury was required to accept the evidence suggesting an accident.
Not so. Defendant again ignores evidence of the trajectory of the bullet. As explained in our discussion of the gun enhancement (§ 12022.53), the evidence did not compel a finding of accidental discharge. The evidence, including defendant's displeasure at the victim's resistance to being robbed and the trajectory of the bullet indicating defendant aimed the gun at the victim as he lay on the ground or was bent over, support an inference that defendant fired the gun intentionally from fairly close range, which supports an inference of intent to kill.
Although the medical examiner could say only that the gun muzzle was at least two to three feet away from the victim and could not rule out that the muzzle was as far away as an upper level of a house, the other circumstances support an inference that defendant fired the gun while fairly close to the victim. These circumstances include evidence that defendant and Mendez were together in following the victim down the alley and needed to be fairly close in order to take the expected loot from the victim's possession, and there was no evidence of any sniper shooting from a house. All this evidence also supports an inference that defendant intended to kill the victim, because intent to kill can be inferred from the defendant's actions and the circumstances of the crime (People v. Avila (2009) 46 Cal.4th 680, 701), and it is well established that the act of firing a gun toward a victim at close, but not point-blank, range in a manner that could kill if the bullet hits the target, suffices to support an inference of intent to kill. (Manibusan, supra, 58 Cal.4th at p. 88 [inference that the defendant did not fire indiscriminately where he fired gun from distance of five to 10 feet and bullets hit victim in face and upper arm]; People v. Perez (2010) 50 Cal.4th 222, 230 [intent to kill could be inferred where defendant fired single shot at group of eight people from distance of 60 feet]; People v. Lee (1987) 43 Cal.3d 666, 679 [distance of 15 to 20 feet was near point-blank range]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [intent to kill could be inferred where defendant fired multiple shots into occupied vehicle from distance of 25 feet].)
That the police characterized it as an accident as part of the interrogation does not detract from sufficiency of the evidence to support the jury's finding that defendant intended to kill.
There is substantial evidence of intent to kill for the gang special circumstance.
B. Jury Instructions
Defendant contends the gang special circumstance must be reversed because the instructions erroneously permitted a true finding without finding that defendant harbored an intent to kill. Defendant argues we must conclude, as we did in Mendez's related appeal (People v. Mendez, supra, (Jan. 10, 2013, C063386) [nonpub. opn.] 2013 WL 120935), that instructional error occurred and was not harmless, and therefore we must reverse the gang special circumstance.
Assuming the claim of instructional error is preserved for appeal despite failure to object in the trial court, the contention lacks merit.
The instructional error in Mendez's appeal arose because of an instruction on aider/abettor liability. Here, the jury expressly found defendant was the actual shooter -- that he fired the gun and did so personally and intentionally. Therefore, any error in the instructions on aider/abettor liability was clearly harmless.
The gang special circumstance for first-degree murder applies if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).)
Defendant agrees the court correctly instructed the jury under CALCRIM No. 736 that, for the gang special circumstance, the People had to prove "defendant intentionally killed" the victim.
However, says defendant, the court also instructed the jury with a modified version of CALCRIM No. 703, regarding reckless indifference as to an alternative to intent to kill for an aider/abettor, which according to defendant erroneously permitted a true finding on the gang special circumstance without the jury finding that defendant or anyone intended to kill.
Nevertheless, the jury verdicts show the jury expressly found that defendant personally and intentionally discharged the firearm causing death (for the section 12022.53 gun enhancement) and therefore clearly found defendant was the shooter, not an aider and abettor. Accordingly, defendant was not prejudiced by any instructional error concerning aiders/abettors. The jury applied the instruction requiring it to find that defendant intended to kill the victim.
Defendant argues the jury's finding that he personally and intentionally discharged a firearm causing death (§ 12022.53) does not render error harmless, because the introductory instructions on general "intent" versus specific intent -- which told the jurors that personal discharge of a firearm called for general intent (as opposed to other allegations requiring specific intent) -- required a lesser intent than intent to kill.
The court instructed the jury pursuant to CALCRIM No. 250: "For you to find the allegation of personal discharge of a firearm resulting in death, a violation of . . . section 12022.53(d) true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that allegation."
The required act as explained in the instruction for the gun enhancement was that defendant "personally discharged a firearm" and "intended to discharge the firearm" and "defendant's act caused the death."
These instructions were expressly limited to the gun enhancement and did not relieve the prosecution's burden to prove intent to kill for the gang special circumstance. For the gang special circumstance, the instructions told the jurors that the prosecution must prove "specific intent" -- not only that the defendant "intentionally commit[ted] the prohibited act, but [did] so with a specific intent," i.e., that defendant "intentionally killed Francisco Montejo."
Defendant cites People v. Guiton (1993) 4 Cal.4th 1116, 1122, for the proposition that, "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory [the jury adopted], the conviction cannot stand." Defendant argues the instructions allowed the jury to find the gang special circumstance true without finding he intended to kill, and there was no evidence he intended to kill.
We question whether Guiton applies but, even assuming it does, we can determine the jury adopted a proper theory. In Guiton, the jury convicted the defendant of the offense of selling or transporting cocaine, but there was no evidence he sold cocaine. Thus, one of the theories was factually inadequate (as opposed to legally inadequate). The Supreme Court upheld the conviction. (Id. 4 Cal.4th at pp. 1121-1131.) The jury was as well equipped as any court to analyze the evidence. (Id. at p. 1131.) Although the prosecutor briefly argued to the jury that the defendant sold cocaine, the prosecutor concentrated on the transportation theory. (Ibid.) Even though the trial court erred in allowing both theories to go to the jury, the record did not affirmatively demonstrate a reasonable probability that the jury found the defendant guilty solely on the unsupported theory. (Id. at pp. 1121-1131.)
The Supreme Court had occasion to discuss Guiton in People v. Hughes (2002) 27 Cal.4th 287. In Hughes, the trial court instructed the jury that it could find the defendant guilty of burglary if it found he entered the victim's apartment with the specific intent to commit theft, sodomy, or rape. (Id. 27 Cal.4th at p. 348.) But the prosecutor did not charge rape, and the trial court did not instruct on it. (Ibid.) The jury returned a general verdict finding the defendant guilty of burglary without specifying the predicate crime(s). (Ibid.) There was no evidence that a completed rape occurred, though there was evidence of sexual intent. (Id. at p. 349.) On appeal, the defendant argued it could not be known whether the jury found, by speculation, that he entered with intent to commit rape (despite the jury finding him guilty of theft and sodomy). (Id. at p. 350.)
Hughes said the defendant's contention about legally incomplete and ambiguous instructions on the element of the crime (burglary) did not fall squarely within either of the two categories described in Guiton: " 'If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute . . . , the . . . rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.' [Citation.]" (Hughes, supra, 27 Cal.4th at pp. 350-351, quoting Guiton.)
Hughes said: "The situation that we face here -- legally incomplete and ambiguous instructions relating to an element of the crime of burglary -- does not fall squarely within either of the two categories described in Guiton. We do not have before us, as in the first [Guiton category], legally correct instructions on a theory for which there was an inadequacy of proof. Nor is the present situation identical to the kind of legal error described in the second category . . . a legally erroneous instruction. Guiton, therefore is not entirely apposite." (Hughes, supra, 27 Cal.4th at p. 351.)
Hughes did find instructional error but concluded it was harmless beyond a reasonable doubt. (Id. 27 Cal.4th at pp. 352-353.) The jurors did not have to agree on the predicate act. If jurors, not having been instructed on the definition of rape, believed defendant entered with intent to commit some sort of sexual assault, their burglary finding would be proper because sexual assault of any type that a jury might erroneously consider to be rape would still be a felony, and any felony suffices for burglary. (Id. at pp. 351-352.) Under only one possible and "highly problematic" scenario might the absence of instruction on rape have prejudiced the defendant. If he intended consensual sex when he entered the apartment and only thereafter acquired the intent to use force or fear, he did not commit burglary. Aside from the "extreme unlikelihood" that the jury so believed, rape is commonly understood to mean sex against the will of the victim. Even if the jury was unaware of exactly what is meant by sexual intercourse, the Supreme Court was "confident that no jury would believe that consensual sexual intercourse was rape. Accordingly, if the jury believed defendant entered the apartment merely with the intent to engage in consensual sexual activity, no reasonable jury would believe that he entered with the intent to commit rape or any other sexual felony." (Id. at p. 352.)
Here, too, we know the jury did not rely on any assertedly erroneous instructions about aiders and abettors, because the jury found defendant was the shooter. If the jury believed defendant fired the gun accidentally, it would not have found true the gun enhancement that he intentionally fired the gun. Since the jury found defendant was the shooter, the instructions required the jury to find that he intended to kill. As we have seen, substantial evidence supports the finding of intent to kill.
We conclude defendant fails to show grounds for reversal of the gang special circumstance.
VI
Juvenile
A. Proposition 57
As set forth in our introduction, we must conditionally reverse the conviction and remand to allow a juvenile court transfer hearing (Welf. & Inst. Code, § 707) under recently-enacted Proposition 57, which was held retroactive in People v. Superior Court (Lara), supra, 4 Cal.5th 299.
B. Sentencing Juvenile Offender to LWOP
Defendant claims his LWOP sentence for crimes committed at age 17 constitutes cruel and unusual punishment under the Eighth Amendment. We disagree with defendant's conclusion but remand for a resentencing hearing (which the People concede is appropriate) pursuant to case law published after defendant's 2011 sentencing, requiring courts to consider distinctive attributes of youth before imposing an LWOP sentence. (Miller, supra, 567 U.S. 460; Gutierrez, supra, 58 Cal.4th 1354.) We decline defendant's request that we order resentencing by a different trial judge.
1. Background
Defendant by motion sought to avoid an LWOP sentence based on his having been a minor at the time of the offenses. He cited evidence of mental impairment and low IQ (submitted when he challenged his confession to police as involuntary). The motion stated the coperpetrator (Mendez) was almost twice defendant's age (17) but also said Mendez was 18 years old. Defendant asserted he had "no prior record" (though the probation report showed pending matters in juvenile court for trespassing, unlawful driving or taking of a vehicle, attempt to receive stolen property, and disturbing the peace. The motion also asserted that defendant admitted wrongdoing to police at an early stage of the criminal process -- even though defendant claimed at trial that his admissions were falsehoods coerced by police misconduct.
At the September 2011 sentencing hearing, the trial court construed the motion as one to strike special circumstances. Defense counsel said mitigation was a sentencing issue, and LWOP in this case would violate evolving standards in case law heading in the direction of not sentencing juvenile offenders to life without parole. The prosecutor retorted the lines of cases referenced by defense counsel "don't exist right now," and there were no mitigating factors under California Rules of Court, rule 4.414 to mitigate the sentence.
In denying the defense request to reduce sentence due to defendant being a juvenile at the time of these crimes, the trial court noted defendant's citation of case law that the Eighth Amendment's ban on cruel and unusual punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (Trop v. Dulles (1958) 356 U.S. 86, 100-101 [forfeiture of U.S. citizenship as punishment for court-martial conviction for wartime desertion was cruel and unusual].)
The trial court expressed displeasure with evolving standards, stating a recent event "puts this in perspective for me" -- i.e., that someone killed 76 people in Norway with bombs and automatic weapons for political or religious reasons, yet the expected maximum sentence that could be imposed was only 30 years. "Not a juvenile. Can't be put to death. Can't even be held for life without possibility of parole. Now, that Norway is clearly a modern, decent society and mature society. If that is what marks the progress, the evolution of a society toward progress and maturity, I think we have got some real problems. [¶] . . . [¶] As much as I know that can be looked at different that somehow if that's going to happen there, why would we sentence some young man here to LWOP? I don't think I want to see that happen, what happened in Norway, happen in this country. And that's the evolution that we are making, and if that's the progress we are making I think we are in real trouble."
Defense counsel protested the comparison: "How can you possibly compare those two incidents in two different countries of two different individuals, one of whom [sic] was a person of the age of majority and one not? That's an [sic] hysterical choice to compare this case to or any other homicide case of this one or any other in which there is a single victim."
The trial court said, "I know your language. Because you always pick just the perfect word, [defense counsel]. But we have such a different view of things." The court continued: "That is where we are heading, is where Norway is right now. And I don't think that's -- I don't think that's a good thing. I could be wrong and we can obviously -- I'm in the minority now, but I think that's, I guess that's what the thinking that went into Dillon and Tropp (phonetic) and so forth. That's where we are headed, is that eventually the punishment will be just a slap on the wrist for the worst possible crime. [¶] I don't think we have reached that point in this country and I don't think that's the current law. May[]be in the future but it ain't right now. And so I think that we should resist that evolving progress.
"And so in this case the Court is going to find that the mitigating factors do not outweigh any aggravating factors. This was a very serious crime. Given the circumstances of the defendant and the circumstances of the crime, it is not appropriate to pronounce anything less than the sentence provided by law here which is life without possibility of parole. Clearly this is an egregious -- was an egregious crime. Totally gratuitous for a very minor thing. The defendant has been talking -- all the gang references that were introduced in this case, has been talking and thinking about killing people for years. I don't know whether he really meant it or not, but he finally went out and did it."
The court went on to state inaccurately (with no objection by the defense) that "there is certainly a long history of [defendant] using .40 calibers and shooting people because they are a member of another gang and so forth. And that whole thing has led to this.
"And while you can argue forever about well somehow maybe he shouldn't be held responsible for that, at some point I think society has to mark a line in the sand and say 'No more. We are just not going to put up with this.' And this is where we are headed.
"So the Court is going to find that there is insufficient circumstances here to justify mitigating this sentence based upon the nature of the crime, the nature of the defendant, the punishments for other similar crimes in this state and other states, and the factors set forth in the California Rules of Court 4.421 and 4.423, the Court is going to find that life without the possibility of parole is the appropriate sentence in this case."
2. Analysis
On appeal, defendant raises a point he did not raise in the trial court, i.e., that there was no evidence of defendant ever shooting anybody before this incident. The People agree but suggest the trial court simply misspoke or the transcript is inaccurate, because the court had just said that defendant had been talking and thinking about killing people for years, but the judge did not know "whether [defendant] really meant it or not, but he finally went out and did it." The People suppose the court's comment about defendant's using .40 calibers and shooting people was a reference to defendant's gang writings found at his home. Defendant testified killing is part of the Sureno lifestyle to some, but he would not do it; he just wrote about it because he was stupid back then. Our remand for a resentencing hearing makes it unnecessary for us to address this matter.
When the trial court sentenced defendant in 2011, California courts construed section 190.5, subdivision (b) (17-year-old who commits special circumstance murder "shall" receive LWOP sentence) as creating a presumption in favor of LWOP as the appropriate penalty. (Gutierrez, supra, 58 Cal.4th at p. 1360, citing People v. Guinn (1994) 28 Cal.App.4th 1130.)
In 2012, Miller, supra, 567 U.S. 460, the United States Supreme Court ruled that mandatory LWOP for minors violates the Eighth Amendment's ban on cruel and unusual punishment because of differences between juveniles and adults regarding culpability and capacity for change. Miller operates retroactively. (Montgomery v. Louisiana (2016) 577 U.S. ___ ; In re Kirchner, supra, 2 Cal.5th at p. 1045, fn. 2.)
To avoid the constitutional problem, the California Supreme Court thereafter held that section 190.5, properly construed, confers discretion on the trial court to sentence a 17-year-old convicted of special circumstance murder to LWOP or 25 years to life with no presumption in favor of LWOP. (Gutierrez, supra, 58 Cal.4th at pp. 1360, 1379, 1387.) Gutierrez further held that Miller requires a trial court, in exercising its sentencing discretion, to consider the "distinctive attributes of youth" and how those attributes " 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders' " before imposing LWOP on a juvenile offender. (Gutierrez, at pp. 1361, 1379, citing Miller, supra, 567 US. 460.)
A statutory avenue for a prisoner to petition for recall and resentencing after 15 years in prison (§ 1170, subd. (d)(2)) does not eliminate the constitutional concerns in imposing an LWOP sentence at the outset. (Kirchner, supra, 2 Cal.5th at pp. 1045, 1049; Gutierrez, supra, 58 Cal.4th at pp. 1386, 1387.)
Because the appellants in Gutierrez had been sentenced before Miller, Gutierrez assumed the trial court applied the then-governing presumption (absent evidence to the contrary) and remanded for resentencing, even though the record indicated the trial court understood it had a degree of discretion in sentencing the defendant. (Gutierrez, supra, 58 Cal.4th at pp. 1361, 1390-1391; see also, In re Kirchner, supra, 2 Cal.5th 1040 [prisoner whose judgment became final two decades earlier was entitled to Miller resentencing hearing as a form of habeas corpus relief].) The California Supreme Court did not fault trial courts who dutifully applied the law as it stood at the time of sentencing. (Gutierrez, supra, 58 Cal.4th at p. 1390.) In such circumstances, the appropriate remedy is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion had it been aware of the full scope of its discretion. (Id. at p. 1391.) "Because the trial courts operated under a governing presumption in favor of life without parole, we cannot say with confidence what sentence they would have imposed absent the presumption. Accordingly, we remand . . . for resentencing." (Ibid.)
Here, the trial court in imposing the LWOP sentence clearly did not give adequate consideration to factors subsequently identified in Miller, which include the offender's age, immaturity, failure to appreciate risks and consequences, family and home environment, and the possibility of rehabilitation. (Miller, supra, 567 U.S. 460; Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.) Although the record contains some evidence bearing on some of these issues, it does not appear the trial court considered that evidence in deciding to impose LWOP.
We accordingly remand for a resentencing hearing. We decline defendant's request that a different judge preside on remand. We do not preclude the trial court from imposing an LWOP sentence but merely require the trial court to apply the proper considerations.
We do not address defendant's passing reference in his reply brief to the 2013 amendment of section 3051 that now specifies parole hearings for juveniles serving life sentences, in which the Parole Board shall take into consideration diminished culpability of juveniles and any subsequent maturation. Section 3051 on its face is inapplicable to LWOP sentences. (§ 3051, subd. (h).)
VII
Restitution Fine (§ 1202.4, subd. (b))
At sentencing, the trial court said it was going to order defendant to pay a restitution fine. Defense counsel asked, "How about a hearing on that, Your Honor?" The court said no, it was not going to hold another hearing and ordered defendant to pay a restitution fine of $10,000 under section 1202.4, subdivision (b), and actual restitution of $7,399.59 as determined by the Victims' Compensation Board. Defense counsel said actual restitution had already been paid. The reporter's transcript shows an unidentified speaker said no, but "they" had "made a fundraiser" and paid $7,399.59 for funeral expenses.
On appeal, defendant argues the trial court erred by imposing the $10,000 restitution fine without finding ability to pay and without submitting the matter to a jury. We review the trial court's order for abuse of discretion, but an error of law constitutes an abuse of discretion, and we apply de novo review to questions of law. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
The Legislature has amended section 1202.4 many times to change the minimum fine, but we refer to the version of section 1202.4 in effect at the time of these offenses in December 2007. (Stats. 2005, ch. 238, § 1; Stats. 2005, ch. 240, § 10.5; People v. Morris (2015) 242 Cal.App.4th 94 [restitution fine is governed by the statute in effect at the time of the offense].) The minimum fine for a felony was $200, and the maximum was $10,000. (§ 1202.4, subd. (b)(1), Stats. 2009, ch. 454, § 1; Stats. 2011, ch. 358, § 1.) The minimum is now $300. (Stats. 2016, ch. 37, § 3.)
Under section 1202.4, subdivision (b): "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. . . ."
In setting the fine, the court may determine the amount as the product of the minimum fine multiplied by the number of years of the prison sentence, multiplied by the number of felony counts of which the defendant was convicted. (§ 1202.4, subd. (b)(2).)
"The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). . . ." (§ 1202.4, subd. (c).) Contrary to defendant's argument on appeal, the first sentence of this subdivision does not require "compelling and extraordinary reasons" for imposing a fine greater than the $200 minimum.
Section 1202.4 further provides: "In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. . . . Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d).)
A. Ability to Pay
Defendant argues he was deprived of due process because his ability to pay the restitution fine was not proven. We disagree.
Defendant cites In re Enrique Z. (1994) 30 Cal.App.4th 464, 468-469, as requiring a finding of ability to pay before the court can impose a fine exceeding the statutory minimum. He is incorrect. That case discussed former Government Code section 13967, subdivision (a), then applicable to adult offenders, and a former Welfare and Institutions Code section applicable to juvenile offenders, which mandated restitution fines under certain circumstances "subject to the defendant's ability to pay." (Enrique, supra, at p. 469.) The requirement of an ability-to-pay finding was based on this statutory language.
In 1994, the Legislature deleted provisions related to a restitution fine from former Government Code section 13967 and added a provision for restitution fine to section 1202.4. (People v. Romero (1996) 43 Cal.App.4th 440, 448, citing Stats. 1994, ch. 1106, §§ 2, 3.)
We said in Romero, that under subdivision (d) of section 1202.4 -- the pertinent provisions of which remain in the current statute -- a defendant's ability to pay remains a relevant factor in setting a restitution fine in excess of the statutory minimum, but express findings by the court as to the factors bearing on the amount of the fine are not required. "Since ability to pay is a factor bearing on the amount of the fine, the trial court was not required to make a finding on that issue, and defendant's contention to the contrary is not meritorious. [¶] Nor need the record in this case contain substantial evidence showing defendant's ability to pay the fine. Subdivision (d) of section 1202.4 also provides, 'A defendant shall bear the burden of demonstrating lack of his or her ability to pay.' This express statutory command makes sense only if the statute is construed to contain an implied rebuttable presumption, affecting the burden of proof, that a defendant has the ability to pay a restitution fine. Whatever is necessarily implied in a statute is as much a part of it as that which is expressed. [Citations.] The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability. Where, as here, a defendant adduces no evidence of inability to pay, the trial court should presume ability to pay, as the trial court correctly did here. Since here defendant's ability to pay was supplied by the implied presumption, the record need not contain evidence of defendant's ability to pay." (Romero, supra, 43 Cal.App.4th at pp. 448-449.)
Here, although defense counsel asked the trial court for a hearing on the restitution fine, he did not state why he wanted a hearing, and defendant does not direct our attention to anything in the record showing he requested a hearing on the question of ability to pay, nor does he show any proffer of evidence of inability to pay. That defendant was unemployed does not show inability to pay.
Defendant (under a separate subheading about the right to a jury trial) suggests that section 1202.4, subdivision (c) -- by stating that inability to pay is not a reason for foregoing the restitution fine but "may be considered only in increasing the amount" in excess of the statutory minimum -- means there must be a finding of ability to pay before imposing a fine in excess of the minimum. That is not what the subdivision says, and defendant's proposed construction would directly conflict with subdivision (d).
We accordingly reject defendant's challenge to the amount of the restitution fine.
B. Jury Trial
We also reject defendant's claim that he was entitled to a jury trial on the restitution fine. Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The statutory maximum is the maximum sentence the judge could impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 .) Apprendi applies to the imposition of criminal fines. (Southern Union Co. v. United States (2012) 567 U.S. 343 [district court's imposition of $50,000 statutory fine for each day that statute was violated because factual finding as to number of days was a jury question under Apprendi].)
People v. Kramis (2012) 209 Cal.App.4th 346, held Apprendi did not preclude the trial court from imposing the statutory maximum $10,000 restitution fine under section 1202.4 "Apprendi and Southern Union Co. do not apply when, as here, the trial court exercises its discretion within a statutory range. [Citations.] . . . Under the applicable version of section 1202.4, subdivision (b)(1), absent compelling and extraordinary circumstances, the trial court was required to impose a restitution fine in an amount between $200 and $10,000. The $10,000 section 1202.4, subdivision (b) restitution fine imposed in the present case was within that statutory range. The trial court did not make any factual findings that increased the potential fine beyond what the jury's verdict -- the fact of the conviction -- allowed. Therefore, Apprendi and its progeny do not preclude its imposition. [Citation.]" (Kramis, at pp. 351-352.)
Defendant argues Kramis is undermined by Alleyne v. United States (2013) 570 U.S. 99 , which held that any fact increasing a mandatory minimum penalty for a crime is an "element" that must be proved to a jury. However, Alleyne addressed the distinguishable situation of sentence enhancements that depended on additional factual findings. In that case, the defendant was charged with "carrying" a firearm for which the mandatory minimum sentence was five years and with "brandishing" the firearm for which the mandatory minimum was seven years. The jury returned a verdict form finding the defendant "carried" the gun but did not find that he "brandished" the gun. (Id. at pp. 104-105.) But the district court imposed the seven year mandatory minimum sentence based on the court's finding by a preponderance of the evidence that the defendant brandished the gun. (Ibid.) This was improper. (Ibid.) The sentencing range supported by the jury's verdict was five years to life in prison. (Id. at p. 116.) Brandishing constituted an element of a separate, aggravated offense and had to be found by the jury. (Id. at pp. 115-116.) The Supreme Court "[took] care to note" that its holding "does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment." (Ibid.)
Defendant also mentions People v. Anaya (2013) 221 Cal.App.4th 252, which is similarly inapplicable because it precluded enhancement of a sentence under a gang enhancement statute (for extortion or attempt to dissuade witness by threats) not found by the jury.
We conclude defendant fails to show any basis to reverse the section 1202.4 restitution fine.
DISPOSITION
The sentence is vacated and the conviction is conditionally reversed. We remand to the trial court with directions to transfer the case to the juvenile court for a transfer hearing to determine if the case would have been transferred to adult criminal court had the case originally been filed in juvenile court (Welf & Inst. Code, § 707) pursuant to People v. Superior Court (Lara), supra, 4 Cal.5th 299, which held Proposition 57 retroactive.
If the juvenile court determines it would not have transferred defendant to criminal court, the juvenile court shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition.
If the juvenile court determines it would have transferred defendant to criminal court, the case shall be transferred to criminal court, which shall reinstate defendant's conviction but conduct a resentencing hearing on the vacated sentence. In the resentencing hearing, the trial court shall consider whether to exercise its newly-enacted discretion to strike section 12022.53 gun enhancements pursuant to Senate Bill No. 620 (§ 12022.53, subd. (h)), which took effect January 1, 2018, and which we held retroactive in People v. Woods, supra, 19 Cal.App.5th 1080.
The trial court shall also reconsider the sentence in light of case law published after defendant was sentenced, holding that the Eighth Amendment's ban on cruel and unusual punishment requires the sentencing court to consider factors bearing on the "distinctive attributes of youth" before imposing an LWOP sentence on a juvenile offender. (Miller, supra, 567 U.S. 460; In re Kirchner, supra, 2 Cal.5th 1040; Gutierrez, supra, 58 Cal.4th 1354.)
If the conviction is reinstated, the trial court after the resentencing hearing shall prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The new abstract of judgment shall show the felony-murder special circumstance (§ 190.2, subd. (a)(17)), which is not shown in the original abstract of judgment.
HULL, Acting P. J. We concur: MURRAY, J. HOCH, J.