People v. Hoffman

Full title: THE PEOPLE, Plaintiff and Respondent, v. KYLE HOFFMAN et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jul 5, 2012

No. F061127 (Cal. Ct. App. Jul. 5, 2012)

Opinion

F061127

07-05-2012

THE PEOPLE, Plaintiff and Respondent, v. KYLE HOFFMAN et al., Defendants and Appellants.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Hoffman. Heather J. MacKay, under appointment by the Court of Appeal, for Defendant and Appellant Luis William Palafox. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF125737A & BF125737B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Hoffman.

Heather J. MacKay, under appointment by the Court of Appeal, for Defendant and Appellant Luis William Palafox.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

Kyle Hoffman and Luis William Palafox (Hoffman and Palafox; collectively, defendants) stand convicted, following a jury trial, of two counts of first degree murder (Pen. Code,¹ § 187, subd. (a)), with multiple-murder (§ 190.2, subd. (a)(3)), robbery-murder (id., subd. (a)(17)(A)), and burglary-murder (id., subd. (a)(17)(G)) special circumstances. Each defendant, 16 years of age or older when the offenses were committed (Welf. & Inst. Code, § 707, subd. (d)(1)), was sentenced to two consecutive terms of life in prison without the possibility of parole (LWOP) and ordered to pay various fees, fines, and restitution. Hoffman now raises claims of trial error and insufficiency of the evidence, while both contend a sentence of LWOP is unconstitutional when imposed on a juvenile offender. We strike the parole revocation restitution fines, but otherwise affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

FACTS ²

2 Defendants' cases were consolidated for trial, but separate juries were impaneled. Accordingly, we indicate which evidence was heard by which jury or juries.

Evidence Heard by Both Juries

Early on the morning of August 6, 2008,³ Bakersfield Police Officer Woessner was investigating an abandoned stolen vehicle when he heard a car alarm coming from the 4400 block of Belle Terrace. He saw Palafox walking away from the vehicle that was emitting the alarm; when Woessner identified himself and asked him to stop, Palafox ran. Woessner caught and detained Palafox. Palafox had a dagger with a four-inch-long, double-sided blade in his sock. Palafox was arrested for having the knife, which was seized and booked into the police department's property room.

3 Unspecified references to dates are to dates in 2008.

Later that morning, Richard Parrott, the son of Joseph and Dorothy Parrott, received a telephone call from his cousin saying Dorothy had not shown up as scheduled to take Richard's aunt to an appointment.⁴ Richard was unable to make telephonic contact with his parents, whom he had last seen on the morning of August 4. As a result, he went to their Bakersfield home. As he approached, he saw that a window had been dislodged from the door on the side of the house. Richard yelled inside the house but, getting no response, went back out front and called his cousin, Gerald Goodell, and asked him to come over.

4 For the sake of clarity, the Parrotts will be referred to by their first names. No disrespect is intended.

Goodell arrived a short time later and went to the back of the house, where he found the sliding door open. He and Richard telephoned again and heard the phone ringing inside, but there was no answer despite the fact both cars were in the garage. At that point, Richard called 911.

Officer Knutson and his partner arrived at about 1:45 p.m. After contacting Richard outside, the officers entered through the open rear sliding glass door and conducted a protective sweep of the residence. Knutson observed a small wooden box in the middle of the hallway, with jewelry on the floor next to it. There was nobody in the first bedroom off the hallway. In the second bedroom, he found an elderly male, subsequently identified as Joseph, lying dead on the bed. There was dry blood on his face, the blankets, and the pillow. The pillow was covering his face, and it appeared someone had pushed it down in that position. There were also what appeared to be lacerations to his neck. In the master bedroom, Knutson found an elderly female, subsequently identified as Dorothy, lying dead on the bed. A pillow with dried blood on it was covering her face. Her skull was partially crushed in.

There was extensive blood spatter in the rooms in which the bodies were found, especially the one in which Dorothy was located. The cast-off blood stains and arch patterns in both rooms indicated a striking of multiple blows. There was also impact spatter on and above the headboard in the room in which Dorothy was found. Impact spatter results from an object striking a source of exposed blood. There was no trail of blood between the two bedrooms or out of the room in which Dorothy was found. There was no drip trail from the implement used.

Shoe tracks were found in the tile hallway that connected the kitchen, laundry room, garage, and living room area on one end, with the bedrooms and office on the other end. It appeared someone had gone through dressers, nightstands, a file cabinet, jewelry boxes, and a jewelry armoire in various rooms.

Joseph's autopsy revealed that he had eight individual sharp-force injuries along the left side of his neck, ranging in depth from one and a half to three and a quarter inches. Although the stab wounds appeared to have been made by a single-edged implement, this could not be determined with certainty, because the body was going through the stages of decomposition and so the wounds were somewhat dried. Dried edges can make what was caused by a double-edged blade appear to have been made by a single-edged blade. Joseph also had possible defensive wounds on his left hand. The left side of his jaw was fractured, and he suffered a subarachnoid hemorrhage (bleeding between the brain and the skull). Bruising on his left shoulder was linear, suggesting he was struck with a linear object. Death, which was caused by sharp and blunt-force injuries, was not instantaneous.

Dorothy's autopsy revealed that she had trauma to her face and both sides of her head. The left side of her face showed blunt force trauma with linear bruising. The entire right side of her face basically was crushed. She had a large laceration, and her right eye was pushed backwards into her cranial vault. She had numerous skull fractures, two of which were in a circular pattern, meaning there was an actual impact by an object. That sort of fracture could be consistent with being struck by a linear object such as a baseball bat. Because of the skull fractures, there was tearing of the brain itself. Such crushing of the skull required a significant amount of force. Dorothy also had linear contusions from blunt force trauma to her abdomen, left flank to left shoulder, and right shoulder. The linear bruising observed on Dorothy was similar to that noted on Joseph, and the blunt force injuries to both could be consistent with being caused by the same or a similar type of weapon. Because all of the bruises corresponded to extensive hemorrhaging into the soft tissues of the fat of Dorothy's back, it meant her heart was still beating when she received those injuries. In addition, Dorothy had multiple contusions to the upper left arm, just below the shoulder. Some were linear abrasions, but two were in the shape of an inverted C. They could be consistent with the knob end of a baseball bat. The cause of death was blunt force head trauma.

Dr. Wallis-Butler, the forensic pathologist who performed both autopsies, could not give an exact time of death because so many factors came into play. She estimated though that, depending on the environment and based on the bodies' degree of decomposition, death occurred 12 to 36 hours earlier.

On November 23, a search warrant was executed at an apartment in the 4400 block of Belle Terrace in which Hoffman resided. Joseph's state quarter collection was found in one of the bedrooms. Seized from a closet in the same bedroom were a pair of shoes that, although they could not be positively identified as the ones that made the tracks in the Parrotts' hallway, were the same size, had the same or a very similar tread pattern, and had a similar wear pattern.

Also on November 23, a search warrant was executed at the Moreno Valley residence of Palafox's mother. Some of Joseph's rings were found in two of the bedrooms. Palafox was located in Whittier and arrested. The knife seized from him on August 6 (the morning the bodies were discovered) was examined. DNA analysis showed that a 15-loci genetic profile developed from blood found where the blade met the hilt matched Joseph's genetic profile. The probability of selecting the DNA profile from a population of random unrelated individuals was estimated to be one in 670 quadrillion Caucasians, one in 2.1 quintillion African-Americans, and one in 7.3 quintillion Hispanics.

Evidence Heard Only by Hoffman's Jury

As of November, Reginald Cotton and Hoffman had been next door neighbors for about two years. Hoffman had attended church with Cotton on a number of occasions, and Cotton had developed a relationship with Hoffman as his neighbor and spiritual advisor. One day that month, Hoffman asked Cotton if God would forgive him for anything. Cotton asked what Hoffman had done, and if he had murdered someone. Hoffman said he was a part of it. When Cotton asked what he meant by that, Hoffman asked if Cotton knew the old people who were killed, and said he and his cousin had done it.⁵ Hoffman said they went to a house to break in to get money for drugs. He stayed outside in some bushes while his cousin went inside. Hoffman heard some noises, then his cousin said the coast was clear and Hoffman went inside. Once he walked in, he saw blood and sheets over someone. He was "just numb." Hoffman said he did not know anyone was present in the house until he went in and saw the blood.

5 Cotton knew Hoffman's cousin only as "Junior." Cotton had seen him around the apartments and knew him to stay with Hoffman from time to time. Cotton knew the cousin did not live in Bakersfield, but would come up to visit, and had gotten into trouble in August while he was staying there. Junior was a lot bigger than Hoffman, and it appeared to Cotton as though Hoffman "seem[ed] to go along with what Junior wanted."

Cotton prayed with Hoffman, and told him that he needed to do the right thing, which was to tell the police. Hoffman said okay and asked Cotton to go with him to tell his mother. Cotton then went next door and told Hoffman's mother what Hoffman had said. She said she needed to think about what to do. Later that month, Cotton contacted the police because Hoffman had not done so. Cotton recounted to Detective Murphy, the lead detective on the case, what Hoffman had told him.

Murphy subsequently interviewed Hoffman at the police department. Detective Findley was also present.⁶ After being advised of his rights, Hoffman related that on August 4, he and his cousin, Palafox (whose nickname was Junior and who was actually Hoffman's nephew) were getting high on marijuana and watching movies at Hoffman's apartment. Palafox then convinced Hoffman to go with him into a house later that night. At first, Hoffman did not want to go, but he wanted to be "cool" around Palafox since they were the only older boys in the family.

6 An audio and video recording of the interview was played for Hoffman's jury.

Hoffman related that he and Palafox went to a house. Hoffman thought Palafox was kidding when he said that, if there were any people, he would take care of them. Hoffman never really believed Palafox. Hoffman went with Palafox to look for an opening into the house, because there was no car parked outside. When Palafox suggested they break a window, Hoffman agreed. Palafox told Hoffman to open the gate and put something there to hold it open, and Hoffman complied without thinking, using a trash can to prop it open.

Hoffman stated that Palafox used a wooden Dodgers baseball bat, which he had brought with him, to push out a window in the kitchen or laundry room door. Because he was too big to fit through the window, he had the smaller Hoffman go inside with instructions to open the sliding glass door in back. When Hoffman did not hear any loud voices or noises inside, he opened the sliding door for Palafox, who told him to stay there. Hoffman waited while Palafox went to take a look. A few minutes later, Hoffman thought he heard a basketball being dribbled, a child crying, and someone talking. Although nervous and scared, Hoffman stayed where he was. Palafox then returned with blood on his face and on the "bat."⁷ Palafox warned Hoffman that whatever happened, Hoffman was not to look at the body or tell anybody about this. Palafox told Hoffman to hold the backpack, to look through two certain rooms, and not to come into two other rooms.

7 Although the transcript reflects Hoffman said "back," our review of the recording suggests he actually said "bat."

Hoffman related that he did as he was told and found some jewelry and cash, which Palafox told him to put in the backpack. Palafox told Hoffman to wait there, then went into another room. After about five minutes, Hoffman also went into the room, and saw a body with the covers over her head and blood. Palafox was in the bathroom; he had found a lot of jewelry that he put in the backpack. Palafox said that since Hoffman had seen the one body, they should just go in the other room. He had Hoffman wait at the door, however, while he covered the body. Then Hoffman went in and they both started looking through drawers.

Hoffman said that after they left, they went to a nearby church to split what was in the backpack. There was more than $200 in cash and quarters in a map of the United States. Hoffman related that although the cash had been "wasted," he still had the quarters in their cardboard display in his room. Hoffman said that if he had known beforehand what was going to happen, he never would have gone inside or even agreed. The day Palafox left, Hoffman threw everything away but the quarter collection. He went for a drive with a friend and tossed stuff out of the car window every mile or so. He kept the quarters, however, because his mother had said a complete set could be turned in and would be worth a lot.

Asked if he knew what happened to the baseball bat, Hoffman related that Palafox said he had "went on Parkwood and broke it against the wall and burned it[] with his lighter." Palafox said the police had the knife he used because they had caught him with it. As to why they chose that particular house, Hoffman surmised it was because they did not see any car and, when Palafox went to go knock on the front door and ran, no one answered. Hoffman agreed with Murphy that they were just walking through the neighborhood and happened to see that house without any cars in the driveway.

Murphy inquired why, if Hoffman did not think "this was gonna go this way," he thought Palafox brought a baseball bat and a knife with him. Hoffman responded that he (Hoffman) lived in a bad neighborhood. There were a lot of gang members around, most of whom tried to "gang bang" on Hoffman. Hoffman explained that he was not from anywhere, but just shaved his head sometimes to fit in with his friends, who were all "gang-bangers." Hoffman related that he had never gone into a house before, although he had heard stories about Palafox and his friends "stalk[ing]" houses where Palafox lived. Hoffman maintained he did not know at first that Palafox had a baseball bat; Palafox was wearing jeans and a shirt, and Hoffman guessed he had the bat in one of the sides. Hoffman was wearing jeans and a black shirt. He threw away the shirt because Palafox said to. Hoffman was also wearing a jacket; it was still in his room. He was not about to throw it away because his mother got it for him. Palafox put gloves and a beanie in the backpack. Hoffman did not see the gloves until they were about to enter the house. They put on the gloves then because Palafox said to.

Hoffman admitted that when he and Palafox first left Hoffman's residence, Hoffman knew they were going to see if some cars were unlocked. Palafox said they were also going to go into a house. Hoffman had a recollection of talking about going into a house, but thought he disagreed. He did not remember much when he smoked marijuana. When he and Palafox left the apartment around midnight, however, he knew they were going to be up to no good.

Asked if they ever discussed what they would do if somebody was in the house or chased them or anything, Hoffman related that Palafox told him, "'You just run, I'll take care of 'em.'" Palafox had told him stories many times before about what he did, but it was all a lie. For instance, Palafox had said he killed a guy on the street in front of a crowd. He then said he was just kidding and would not do that. Palafox always denied being a gang member, but he told Hoffman "he back[ed] up the south the whole way."

Hoffman was adamant that he did not see Palafox hurt either of the victims. However, Palafox described what he did and how it felt. Palafox said the old man was sleeping. Palafox went into his room first and hit him or stabbed him in the throat. Palafox made it sort of like a joke and told Hoffman, "'Man, you don't know how hard it is to hit a throat.'" Palafox described how he hit the man and then stabbed him and then stabbed him again in the throat and twisted and pulled. He said he then went into the woman's room. He started swinging down with the baseball bat, and the old woman got up and sort of started screaming. Palafox said he was not sure if he was hitting her, so he flashed a light, saw her start twitching, and kept on hitting her. Palafox said he wanted them to feel no pain at all. Palafox told Hoffman this while they were in the house. Hoffman estimated they were in there for 15 to 20 minutes at the most, and that it probably happened between midnight and 2:00 a.m. Palafox told Hoffman not to snitch on him, and he (Palafox) would not snitch on Hoffman, and that if only one got caught, that person should take the whole rap. Hoffman anticipated that if the detectives told Palafox what Hoffman had told them, Palafox would probably make something up such as saying that Hoffman killed one of the victims. Hoffman acknowledged it would make more sense if each had killed one, but he almost vomited when he saw the blood. He insisted he did not kill anyone.

Hoffman related that he had told his mother and Cotton about what happened, and that he told his sister about it before that. He told his mother because he could not take it anymore. He had wanted badly to turn himself in, but he was scared. He intended to turn himself in after Christmas. Asked how he felt about what he was telling the detectives, Hoffman replied that he was glad he had gotten it off his chest.

Asked about knives found in his room, Hoffman replied that he liked collecting them, especially how sharp they were and how crafted.⁸ He thought knives were one of the best weapons there were, but did not know why he thought that. He just loved them. He had never used one to hurt somebody.

8 Murphy had been informed that a large number of knives were located in Hoffman's room during the search of his residence. None of the knives were seized.

Evidence Heard Only by Palafox's Jury

K.M., Hoffman's sister, testified under a grant of immunity. During August through November, Palafox lived in Moreno Valley. In August, Palafox stayed with her family, including Hoffman, in an apartment on Belle Terrace. At the time, K.M. had a full-sized Dodgers baseball bat.

At some point, K.M. was around defendants when the two were talking about going into someone's house and stealing. On August 4, the two left the apartment around 11:00 p.m. or midnight and did not return until 3:00 a.m. or later. They took the bat with them and returned with it. Around that same time frame, K.M. was in her room with defendants and she touched the bat. Defendants both reacted, and Palafox told her not to touch it. After that, Palafox took the bat away and she never saw it again. At some point at the beginning of August, K.M. looked into Hoffman's backpack. In it, she saw jewelry and a couple hundred dollars. Palafox said they had gotten the money and jewelry when they were out breaking into cars.

In September or October, K.M. spoke to Palafox by telephone and asked him if he was involved in a murder that occurred during a break-in at a house. Palafox said something like she should not be talking about it with him over the phone.

Murphy interviewed K.M., who was not in custody, at the Bakersfield Police Department in November. K.M. volunteered that she had called Palafox and asked him about his involvement in the murders. Palafox denied, more than once, knowing what she was talking about. When K.M. became more "blunt," basically telling him, "like murder, retard," Palafox paused, then replied "yeah." Palafox directed her not to talk about it on the phone.

DISCUSSION

I

ADMISSION OF HOFFMAN'S STATEMENTS TO REGINALD COTTON

Hoffman contends the statements he made to Reginald Cotton should have been excluded based on clergy-penitent privilege. We disagree. A. Background

Hoffman moved, in limine, to exclude Cotton's testimony pursuant to Evidence Code section 1030 et seq. At a hearing on the motion, Cotton testified he worked for a local professional basketball team, and also "minister[ed] the gospel." He was not licensed, but would go out "on the streets" and talk to people and "share what Jesus has done for us." He regularly attended Church of Christ Ministries, but did not hold any position or have any official capacity with the church, nor had he ever held such a position with any church. However, he also had his own ministry, called "Livenit Ministries." He had a card he would hand out in conjunction with his ministry; it gave a telephone number and website, and invited people to call if they "[n]eed[ed] to hear testimony, receive prayer or encouragement." Livenit Ministries was not affiliated with Church of Christ Ministries or any other group. It was Cotton's street ministry; Cotton did not have any licenses or certificates as a minister.

Cotton was someone Hoffman came to for spiritual advice. With respect to their conversation in November, Cotton was told by a friend they had in common that Hoffman appeared to be somewhat depressed. Their initial contact concerned whether God could forgive Hoffman for something in which he had been involved. At the end of the conversation, Cotton and Hoffman prayed together. Cotton said he did that as a Christian in ministering the word of God.

When Hoffman spoke to Cotton about this case, Cotton encouraged Hoffman to go to the police. Cotton told Hoffman they had to follow "the laws of the land." Cotton never told Hoffman that he (Cotton) would go to the police or that Cotton could not tell other people about what Hoffman had told him. Cotton and Hoffman were neighbors. Hoffman was one of the neighborhood youths to whom Cotton ministered. Cotton would encourage Hoffman to go to church. Hoffman would attend church services with Cotton. When that happened, Cotton was not the one conducting the services.

As a member of the Church of Christ Ministries congregation, Cotton was not obligated to listen to confessions. While he would try to help someone who came to him to talk about a problem, it was not his job or assignment as a member of the congregation. If someone came to him with a problem and asked him to keep their conversations confidential, he would do so. Asked why, he replied, "Just so -- don't gossip." With respect to the conversation he had with Hoffman in this case, Cotton did not say anything one way or the other about whether he would speak to anyone else about what had been said. Although Cotton could not recall with any certainty, he did not believe Hoffman requested that Cotton keep the information confidential.

At the conclusion of the hearing, the trial court determined that, although Cotton was performing as a religious counselor and advisor to Hoffman, he was not performing as a member of the clergy who had the right to conduct penitential communications. The court further found the conversation did not qualify as a penitential communication, and that Cotton did not have a duty to keep communications secret. Accordingly, it overruled the claim of privilege.

Cotton's trial testimony is summarized in the statement of facts, ante. Hoffman's renewed objection to admission of his conversation with Cotton was overruled. B. Analysis

"Subject to [Evidence Code] Section 912, a penitent ... has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege." (Evid. Code, § 1033.)⁹ A "'penitent'" is "a person who has made a penitential communication to a member of the clergy." (Id., § 1031.) A "'member of the clergy'" is "a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization." (Id., § 1030.) A "'penitential communication'" is "a communication made in confidence ... to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret." (Id., § 1032.)

9 A member of the clergy also has a privilege to refuse to disclose a penitential communication, subject to Evidence Code section 912. (Evid. Code, § 1034.) Under Evidence Code section 912, the right to claim the privilege is waived with respect to a protected communication if the holder of the privilege has, without coercion, disclosed a significant part of the communication or consented to such disclosure.

"As a general matter, the claimant of the [clergy-penitent] privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. [Citation.] He is aided by a presumption that a [clergy-penitent] communication was made in confidence. (Evid. Code, § 917[, subd. (a)].) The opponent has the burden to prove otherwise [citation] by a preponderance of the evidence [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 655; see also Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 441-442 (Archbishop).)

"'We defer to the [trial] court's factual findings concerning privilege if they are supported by substantial evidence.' [Citation.] Where the facts are undisputed, the privilege claim is one of law which is reviewed de novo. [Citation.]" (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1515; accord, Archbishop, supra, 131 Cal.App.4th at p. 442.) "'"When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations]."' [Citations.] Accordingly, unless a claimed privilege appears as a matter of law from the undisputed facts, an appellate court may not overturn the trial court's decision to reject that claim." (HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 60.) When reviewing a ruling on a claim of clergy-penitent privilege, we must keep in mind that while "'member of the clergy'" is broadly defined in Evidence Code section 1030 (Cal. Law Revision Com. com., 29B Pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1030, p. 54), "[b]ecause privileges 'prevent the admission of relevant and otherwise admissible evidence,' they 'should be narrowly construed.' [Citation.]" (People v. Sinohui (2002) 28 Cal.4th 205, 212; accord, Trammel v. United States (1980) 445 U.S. 40, 50.)

We assume, for purposes of our analysis, that Cotton was a "'member of the clergy,'" as defined by Evidence Code section 1030, because he was a "religious practitioner, or similar functionary of a ... religious organization" (ibid.) by virtue of his street ministry. Hoffman need not have been a member of Cotton's church or faith, or a subscriber to the tenets of Cotton's ministry, to constitute a "'penitent'" within the meaning of Evidence Code section 1031. (Doe 2 v. Superior Court, supra, 132 Cal.App.4th at p. 1517.)

"'The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation ... in return.' [Citation.]" (Archbishop, supra, 131 Cal.App.4th at p. 443.) Under the current definition, which centers on a "communication" and not on a "confession," there is no requirement that, in order to be privileged, a communication have as its purpose the confession of such an act or thought to receive religious consolation and guidance. (Doe 2 v. Superior Court, supra, 132 Cal.App.4th at p. 1518; Archbishop, supra, 131 Cal.App.4th at p. 443.) "Therefore, '[a]s long as the discipline or practice of a church authorizes a member of the clergy to hear particular communications and imposes a duty of secrecy on the clergy member for such communications, a communication is privileged from disclosure even though it is not a confession.' [Citation.]" (Doe 2 v. Superior Court, supra, 132 Cal.App.4th at pp. 1518-1519, italics added.) Not every statement made to a member of the clergy is privileged; rather, the statement "'must satisfy all of the conceptual requirements of a penitential communication .... [Citations.]' [Citation.]" (Archbishop, supra, 131 Cal.App.4th at pp. 443-444, italics added.)

In the present case, there was no evidence to show Cotton was authorized or accustomed to hear confidential communications, or that he had a duty to keep any such communications secret under the discipline, practice, or tenets of his church or ministry. (See People v. Johnson (1969) 270 Cal.App.2d 204, 208; compare People v. Edwards (1988) 203 Cal.App.3d 1358, 1363-1365.) Even assuming his self-imposed duty was sufficient to fulfill this requirement, it only existed if Cotton were asked to keep the conversation confidential. Insofar as the evidence showed, Hoffman never made such a request and, indeed, Cotton ultimately did not keep the communication secret.

In light of the foregoing, Hoffman's conversation with Cotton did not constitute a penitential communication within the meaning of Evidence Code section 1032, and so was not privileged under section 1033 or section 1034 of the Evidence Code. It follows that the trial court properly permitted the People to present Cotton's testimony concerning the contents of that conversation.¹⁰

10 Even if we were to find error, we would conclude it was harmless. In light of Hoffman's statement to detectives, admission of Cotton's testimony neither rendered Hoffman's trial fundamentally unfair, such that the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) would apply, nor is it reasonably probable Hoffman would have obtained a more favorable result had Cotton's testimony been excluded, such that admission of the testimony resulted in a miscarriage of justice (People v. Watson (1956) 46 Cal.2d 818, 836).

II

ADMISSION OF HOFFMAN'S STATEMENT TO DETECTIVES

Hoffman next contends his statement to detectives should have been suppressed under the Fifth and Fourteenth Amendments to the United States Constitution. We conclude the statement was properly admitted. A. Background

As part of his written motions in limine, Hoffman sought to exclude his statement to police "as being taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and he requested an Evidence Code section 402 hearing. At the outset of that hearing, the prosecutor asked for clarification whether the motion was being made only pursuant to Miranda, or whether it also addressed voluntariness of the statement itself. Defense counsel responded, "One is as to advisal of rights and also with regards to the voluntariness of any waiver."

The prosecutor then called Detective Murphy to the stand. Murphy testified that in November, he interviewed Hoffman after speaking to Reginald Cotton. The interview of Hoffman took place at the Bakersfield Police Department, in the interview and interrogation room commonly referred to as "the Blue room." Detective Findley was also present. Both detectives were dressed in street clothes. Hoffman, who was being detained at that point, was in handcuffs throughout the interview. Murphy knew Hoffman was 17 years old at the time and had no prior criminal history or contact with law enforcement. Murphy did not inform Hoffman that he had been arrested for murder; other officers actually placed him under arrest on Belle Terrace, pursuant to an arrest warrant, and Murphy did not know what they told him. The interview was conducted approximately an hour to an hour and 15 minutes after Hoffman was taken into custody. During that time, Hoffman was held in a detention cell at the police department. To Murphy's knowledge, he was not allowed to speak to his family. As he was being watched by uniformed patrol personnel, however, he was not completely isolated.

Murphy began by asking Hoffman if he wanted something to drink. Hoffman asked for some water and it was provided. Murphy noted that Hoffman probably had a pretty good idea why he was there, and Hoffman responded, "yeah." Murphy went on to say it was a "golden opportunity" for Hoffman to "explain some stuff and get it out and explain away some other stuff." Less than a minute into the interview, Murphy advised Hoffman of his Miranda rights by reading them from a card. After reading each right, Murphy elicited from Hoffman that Hoffman understood that right. Murphy then asked Hoffman if he understood all of his rights and, when Hoffman answered yes, began his questioning. He did not ask Hoffman whether, having the rights in mind, he was willing to talk to Murphy. He told Hoffman that they "desperately" needed to find out some things, and that this could very well be Hoffman's only opportunity to talk to Murphy. Murphy already had information that Hoffman had admitted to Cotton that he had been involved in a burglary at the victims' residence. Murphy did not tell Hoffman that legally, if he was involved in the burglary, he would be charged with murder. Murphy also did not inform Hoffman that he could be charged as an adult.

At no time did Murphy threaten Hoffman if he did not cooperate. The only questions Murphy remembered Hoffman asking were for clarification of a question Murphy asked. Murphy did his best to answer any questions Hoffman asked, had a patrol officer take Hoffman to the men's room when Hoffman indicated a need in that regard, provided Hoffman with water, offered him soda, and, near the end of the interview, asked him if he wanted anything to eat and then obtained the chips he requested. At no time did Murphy make any promises of leniency to Hoffman in return for Hoffman's cooperation.

While Murphy was interviewing Hoffman, Hoffman's mother and sister were in a break room across the hallway. During the interview, Hoffman indicated that he knew his mother, sister, and mother's boyfriend were at the police station. At one point, he indicated he had heard their voices. At no time did Hoffman indicate that he wanted to stop talking to Murphy, that he felt he needed to talk to an attorney, or that he did not understand his rights. During the interview, which was conversational, Hoffman seemed to understand the questions and gave appropriate responses.

At the conclusion of the hearing, the trial court stated the issues before it as whether there was a proper advisal of rights and waiver under Miranda, and, assuming there was a waiver, whether it was knowing, intelligent, and voluntary. The court found sufficient evidence to establish a proper advisement of rights, an implicit waiver of those rights, and a waiver that was voluntary, knowing, and intelligent, notwithstanding Hoffman's age, lack of sophistication, and lack of experience with law enforcement. Accordingly, it found the statement admissible against Hoffman. B. Analysis

In the title of the argument contained in his opening brief on appeal, Hoffman frames his claim as being that he did not make a knowing and voluntary waiver of his Miranda rights. He then expands his argument to include a claim his statement was the involuntary product of intimidation, coercion, and deception. The Attorney General says this challenge to the voluntariness of the statement is not the same objection made in the trial court, and so should be deemed forfeited. Hoffman disagrees, apparently viewing the issues as one and the same.

The Attorney General has the better argument. Involuntariness due to a Miranda waiver that was not knowing and intelligent, is a distinct claim from an assertion that the ensuing statement was the product of intimidation, deception, and coercion and therefore involuntary. (See Fare v. Michael C. (1979) 442 U.S. 707, 727; Edwards v. Arizona (1981) 451 U.S. 477, 483-484.) Hence, Hoffman's failure to assert in the trial court that basis for suppressing his statement forfeits the claim for purposes of appeal. (Evid. Code, § 353; see, e.g., People v. Holt (1997) 15 Cal.4th 619, 666; People v. Mayfield (1993) 5 Cal.4th 142, 172; People v. Hill (1992) 3 Cal.4th 959, 982, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Nevertheless, since the issues factually and legally overlap in the circumstances of this case, and we are able to independently review the recording of the interview which was played for the jury and which the Attorney General has caused to be transmitted to us, and Hoffman has raised (albeit somewhat perfunctorily) an alternative claim of ineffective assistance of counsel, we will address Hoffman's challenge to the voluntariness of his statement on the merits.¹¹

11 We need not determine the extent to which Hoffman's statement constituted an admission rather than a confession, since the same legal principles apply to each. (Miranda, supra, 384 U.S. at p. 476; People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

We turn first to the issue of waiver. The Fifth Amendment to the United States Constitution guarantees that a suspect in a criminal case "may not be compelled to be a witness against himself in any respect." (Colorado v. Spring (1987) 479 U.S. 564, 574.) "To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 535.) The waiver inquiry has two aspects. "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (Moran v. Burbine (1986) 475 U.S. 412, 421.)

"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda ..., we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236.) The prosecution bears the burden of establishing the voluntariness of a defendant's waiver by a preponderance of the evidence. (People v. Box (2000) 23 Cal.4th 1153, 1194-1195, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; see Colorado v. Connelly (1986) 479 U.S. 157, 168.)

The foregoing principles apply equally when the suspect is a minor. (People v. Lewis (2001) 26 Cal.4th 334, 383.) As the California Supreme Court has acknowledged, "a court faces special problems in determining whether a minor who purports to waive the Fifth Amendment rights to silence and the assistance of counsel in the context of custodial interrogation does so knowingly and voluntarily. The [United States Supreme Court], in holding that these constitutional protections apply to minors, 'emphasized that admissions and confessions of juveniles require special caution' [citation] and that courts must use 'special care in scrutinizing the record' to determine whether a minor's custodial confession is voluntary [citation].... Nevertheless, ... federal law requires us to apply ... the totality-of-the-circumstances rule ...." (People v. Lessie (2010) 47 Cal.4th 1152, 1166-1167.) In examining the totality of the circumstances when a minor is concerned, the court must take into consideration, among other factors, the minor's "age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement. [Citations.]" (People v. Lewis, supra, 26 Cal.4th at p. 383.) However, "'"[n]either a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood."' [Citation.]" (Id. at p. 384.)

In the present case, the record clearly shows Murphy took care to ensure Hoffman understood each of his rights. There is no indication Hoffman failed to understand, or was confused by, anything Murphy advised him in that regard. (See Fare v. Michael C., supra, 442 U.S. at p. 726.) Further, there is no suggestion Hoffman "was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit." (Id. at pp. 726-727.) While Murphy never expressly asked him if he was willing to waive his rights, the record shows no unwillingness or hesitation to answer questions on Hoffman's part. At no time did Hoffman request the presence of an attorney or indicate he wanted to terminate the questioning. "Although the police officers did not obtain an express waiver of defendant's Miranda rights, decisions of the United States Supreme Court and of [the California Supreme Court] have held that such an express waiver is not required where a defendant's actions make clear that a waiver is intended. [Citations.]" (People v. Whitson (1998) 17 Cal.4th 229, 250; accord, North Carolina v. Butler (1979) 441 U.S. 369, 374-375 & fn. 6.)

It is true Hoffman was not allowed to see his family. However, there is no evidence he made any request to speak with them, despite his awareness they were present at the police department. (See In re John S. (1988) 199 Cal.App.3d 441, 446.) It is also true Murphy never informed Hoffman that if he confessed to burglary, he could be charged with murder, or that he could be charged as an adult. Nevertheless, "[o]nce it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." (Moran v. Burbine, supra, 475 U.S. at pp. 422- 423, fn. omitted.) There is no requirement that a suspect be informed of the possible charges against him or her, the possible punishment for those charges, or, by parity of reasoning, whether he or she may be charged as an adult. (People v. Hill, supra, 3 Cal.4th at p. 982; see also Colorado v. Spring, supra, 479 U.S. at pp. 576-577; People v. Tate (2010) 49 Cal.4th 635, 682-685; People v. Neely (1979) 95 Cal.App.3d 1011, 1017.) "The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." (Colorado v. Spring, supra, 479 U.S. at p. 574.)

In light of the foregoing, we conclude the trial court correctly found that Hoffman validly waived his Miranda rights. Accordingly, we turn to the voluntariness of his ensuing statement, which is assessed in much the same way as the waiver.

"The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576; accord, Jackson v. Denno (1964) 378 U.S. 368, 376.) When a defendant challenges his or her statements as involuntary, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Markham (1989) 49 Cal.3d 63, 71.)

"A statement is involuntary if it is 'not "'the product of a rational intellect and a free will.'"' [Citation.]" (People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) "Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.' [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 79.) Thus, "'[t]he due process [voluntariness] test takes into consideration "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation."' [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1093, disapproved on another ground in People v. Rundle, supra, 43 Cal.4th at p. 151.) "Relevant are 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.) Other characteristics of the defendant to be considered are his or her age, sophistication, prior experience with the criminal justice system, and emotional state. (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)

An appellate court reviews independently a trial court's determinations as to whether coercive police activity was present and whether a defendant's statements were voluntary. (People v. Guerra, supra, 37 Cal.4th at p. 1093.) A trial court's findings concerning the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation are generally reviewed for substantial evidence. (Ibid.) Here, the interview was tape-recorded so the facts surrounding the giving of the statement are undisputed (People v. Maury (2003) 30 Cal.4th 342, 404; People v. Anderson (1990) 52 Cal.3d 453, 470; People v. Vasila (1995) 38 Cal.App.4th 865, 873).

Hoffman's challenge to the voluntariness of his statement rests on the assertions the police misled him and gave him the impression that talking to them would create a more favorable outcome. Hoffman points out he was never told he could be charged as an adult or that, if he were involved in the burglary, he could be charged with murder even if he did not kill anyone; Murphy told him it was his "golden opportunity" to explain some things and explain away other things, and suggested this was Hoffman's only opportunity to exonerate himself; and Hoffman was in a very vulnerable position when Murphy "confronted" him in the interrogation room because he had been alone in a holding cell for over an hour, he had not been allowed to speak to his family, he was only 17 years old and had no prior experience with law enforcement, and he was emotionally upset and feeling "great grief and remorse," as shown by his conversation with Reginald Cotton.

"The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 404.) "In evaluating a claim of psychological coercion, the 'question posed ... is whether the influences brought to bear upon the accused were "such as to overbear [his or her] will to resist and bring about confessions not freely self-determined."' [Citations.]" (People v. Kelly (1990) 51 Cal.3d 931, 952.) "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" (People v. Maury, supra, 30 Cal.4th at pp. 404-405.) This "requisite causal connection between promise and confession must be more than 'but for': causation-in-fact is insufficient. [Citation.] 'If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.' [Citation.]" (People v. Benson (1990) 52 Cal.3d 754, 778-779.) Rather, "[t]he statement is involuntary only if the threat [or promise] actually induces defendant to make the statement. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442.)

We have viewed the recording of the interview and find it no more "coercive" than any interview conducted by police at a police station. It was conducted in a comfortable-appearing interview room that had plants, cushioned chairs, reading materials on the tables, and pictures on the walls, and that looked more like a doctor's waiting room than the stereotypical police interrogation room. Hoffman was offered his choice of water or soda and, before the interview began, he was asked if he was all right. Hoffman acknowledged that he had a good idea why he was there. Although he teared up at various times, the recording shows he was not so emotional that his will was overborne. He was able to calmly relate what occurred on the night of the murders, even when it obviously was difficult for him to recount the noises he had heard and the seeing of the blood and bodies. He was even able to smile occasionally and chuckle at small jokes made by the detectives. The detectives did not yell at or become stern with Hoffman. They did not treat him in any way that might be termed aggressive or confrontational, and they gave him food, water, and a comfort break. They did not badger him to talk. Although Hoffman was only 17 and had no prior experience with the criminal justice system, nothing in his manner suggested he had mental problems or low intelligence.

We are hard-pressed to see the requisite causal connection between police conduct and Hoffman's statement. Hoffman had already confessed to his sister, Cotton, and to his mother. He said he talked to his mother because he could not take it anymore; he badly wanted to turn himself in, but was scared. That he may have been feeling grief and remorse is laudable, but did not result from any form of pressure placed on him by the police.

We also have no problem with Murphy's "golden opportunity" remark or his comment during the interview that the only way they could try to help Hoffman at all was if he were completely honest. "'The 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.' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 297-298.) Thus, "'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.' [Citation.] ... [T]he distinction between permissible and impermissible police conduct 'does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by the defendant if he speaks the truth as represented by the police.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, '"[w]hen the benefit pointed out by the police ... is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made [citation].' [Citation.]" (People v. Belmontes, supra, 45 Cal.3d at p. 773.) The police did not cross the line in the present case. (See, e.g., Fare v. Michael C., supra, 442 U.S. at p. 727 [police indication that cooperative attitude would be to minor's benefit was "far from threatening or coercive"]; People v. Carrington (2009) 47 Cal.4th 145, 171 [detective's suggestion killing might have been accident, self-defense, or product of fear not coercive but offered defendant an opportunity to provide details of crime; any benefit to defendant that reasonably could be inferred was merely that flowing naturally from truthful course of conduct]; People v. Holloway (2004) 33 Cal.4th 96, 113-116 [investigators did not cross the line from proper exhortations to tell truth into impermissible threats of punishment or promises of leniency when they: told defendant they were talking about a death penalty case, that truth could not hurt him, but the longer he said nothing, he was gone, and that if killings were accidental or resulted from uncontrollable rage during drunken blackout, such circumstances could make a lot of difference].)

Hoffman says that "[s]ilence can be as misleading as a false statement," and suggests detectives employed deception by withholding from him that he could be charged with murder even if he did not kill anyone and that it was possible he could be charged as an adult. "'While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citation].' [Citation.]" (In re Shawn D., supra, 20 Cal.App.4th at p. 209.) Hoffman cites no case in which this type of omission has been found to constitute deception, and we conclude it did not render Hoffman's statement involuntary. (Compare, e.g., People v. Hogan (1982) 31 Cal.3d 815, 838-843 [confession involuntary where investigators made promises of leniency, engaged in psychological coercion, and falsely told defendant he had been seen committing offenses], disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836; People v. Jimenez (1978) 21 Cal.3d 595, 610-612 [same; investigator told defendant he could get death penalty if he did not confess, but a codefendant — the actual killer — probably would not get death penalty], overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17; People v. McClary (1977) 20 Cal.3d 218, 229-230 [same; investigators repeatedly called 16-year-old suspect a liar, advised her that she would face death penalty unless she changed statement and admitted true extent of complicity, suggested she might be charged only as accessory if she changed story, and ignored her repeated requests for assistance of counsel], overruled on another ground in People v. Cahill, supra, 5 Cal.4th at pp. 509-510, fn. 17; People v. Cahill (1994) 22 Cal.App.4th 296, 314-317 [same; investigator deceptively omitted felony-murder doctrine, making his account of law "materially misleading," and he understated seriousness of defendant's position by implying that if defendant admitted his role in killing but had not premeditated, defendant might avoid trial and conviction of first degree murder]; In re Shawn D., supra, 20 Cal.App.4th at pp. 213-216 [same; investigator repeatedly told minor, falsely, that witnesses would identify him, truthful statement would benefit minor's girlfriend, and minor would not be tried as adult if he confessed].)

After considering the totality of the circumstances in this case, we conclude the statement made by Hoffman to detectives was voluntary. Accordingly, there was no due process violation or state law error in introducing that statement at Hoffman's trial. (See People v. Williams, supra, 16 Cal.4th at p. 660.)

III

CALCRIM NO. 400

Hoffman says reversal is required because CALCRIM No. 400, as given in his trial, misinstructed the jury on the mens rea required for an aider and abettor. We conclude the error was harmless. A. Background

The prosecutor argued both premeditation and felony murder to the jury as bases upon which to find Hoffman guilty of first degree murder. He asserted premeditation was shown because, when defendants moved through the house and came upon the victims in separate rooms, they had a choice — kill or get out — and they had to think about that choice. The prosecutor also suggested the use of two weapons, coupled with the absence of a blood trail from one bedroom to the other, led to the inference one defendant killed Joseph at the same time the other defendant was killing Dorothy. The prosecutor further argued that the evidence showed a robbery and a burglary, and that, based on Hoffman's statement, there was no doubt defendants intended to commit those crimes; accordingly, Hoffman was guilty of first degree murder under a felony-murder theory. The prosecutor told jurors that even if they were not sure whether Hoffman directly took action to kill Joseph and Dorothy, he was guilty because he was an accomplice to the act and was aware of what was going on.

Hoffman's jury was instructed that he could be guilty if he directly committed the crime or if he aided and abetted the perpetrator. The trial court instructed on the general principles of aiding and abetting in accordance with CALCRIM No. 400, as it read at that time, as follows: "A person may be guilty of a crime in two ways: [¶] One, he or she may have directly committed the crime.... [¶] Two, he or she may have aided and abetted a perpetrator who directly committed the crime. [¶] A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."¹² (Italics added.)

12 The instruction has since been modified to remove the word "equally." (Judicial Council of Cal., Crim. Jury Instns. (2011) p. 167.)

The trial court further told jurors that Hoffman was being prosecuted for first degree murder under theories of premeditation and felony murder, and it instructed on both. It also instructed on unpremeditated, second degree murder. The court further instructed on the requirement of proof of the union or joint operation of act and specific intent and/or mental state, and on voluntary intoxication. The court told jurors that if they concluded Hoffman was intoxicated at the time of the alleged crime, they could consider such evidence in deciding whether he (1) knew Palafox intended to commit murder, robbery, and/or burglary (robbery and burglary being the felonies underlying the felony-murder theory); (2) intended to aid and abet Palafox in committing murder, robbery, and/or burglary; (3) acted with an intent to kill or with deliberation and premeditation; and (4) had the specific intent required for robbery and/or burglary. B. Analysis

Hoffman voiced no objection to the italicized portion of CALCRIM No. 400, which he now claims was erroneous. Generally, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.) At least two courts have held that a challenge to the "equally guilty" language of CALCRIM No. 400 is forfeited by failure to request clarifying language. (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego). We find it appropriate to discuss Hoffman's claim on the merits, however, as the gist of his argument is that CALCRIM No. 400 is not correct in law and so implicates various constitutional rights. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Gutierrez (2009) 174 Cal.App.4th 515, 520.)

"A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 40.) Aider and abettor liability thus "is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) "It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.... The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Ibid.)

With respect to the "equally guilty" language of (now former) CALCRIM No. 400, a direct perpetrator and an aider and abettor are equally guilty of a crime in the sense that an aider and abettor does not escape treatment as a principal merely because he or she is not the direct perpetrator. Thus, section 31 provides in part: "All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, ... are principals in any crime so committed."

The problem is, the "equally guilty" language of the instruction can be interpreted as telling jurors that the direct perpetrator and the aider and abettor must be found guilty, if at all, of the same crime(s) and degree(s) thereof. So, for example, if Hoffman's jury found Palafox murdered one or both victims with premeditation and deliberation, the jury would have to find Hoffman also guilty of first degree murder once jurors determined he was involved. This is not the law. The California Supreme Court has held that, depending on the circumstances, an aider and abettor can be convicted of a crime greater than the offense for which the direct perpetrator is liable. (People v. McCoy, supra, 25 Cal.4th at p. 1122.) Several appellate courts have held that, under the same reasoning, an aider and abettor can be convicted of a crime lesser than the offense for which the direct perpetrator is liable. (People v. Lopez, supra, 198 Cal.App.4th at p. 1118; People v. Nero (2010) 181 Cal.App.4th 504, 513-518; Samaniego, supra, 172 Cal.App.4th at pp. 1163-1164; cf. People v. Woods (1992) 8 Cal.App.4th 1570, 1577-1578.) CALCRIM No. 400, as given in Hoffman's case, was ambiguous, and potentially misleading, on this point.

Generally speaking, when a defendant claims an instruction was subject to erroneous interpretation by the jury, he or she must demonstrate, based on an examination of the instructions as a whole, a reasonable likelihood the jury was misled. (People v. Solomon (2010) 49 Cal.4th 792, 822; People v. Tate, supra, 49 Cal.4th at p. 696; see Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4.) However, in Samaniego, supra, 172 Cal.App.4th at page 1165, the appellate court stated: "An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman[, supra,] 386 U.S. 18, 24. [Citation.] Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. [Citation.] CALCRIM No. 400 misdescribes the prosecution's burden in proving the aider and abettor's guilt of first degree murder by eliminating its need to prove the aider and abettor's (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder." Samaniego is correct if the jury understood the "equally guilty" language of CALCRIM No. 400 to mean the aider and abettor had to be convicted of the same crime or degree of crime as the direct perpetrator. The Samaniego court found the error harmless beyond a reasonable doubt because the jury necessarily resolved the issues against the defendant under other instructions. (Samaniego, supra, 172 Cal.App.4th at p. 1165.)

Considering the whole of the instructions given in the present case, we do not think it reasonably likely the jurors in this case ascribed the incorrect meaning to the phrase. Like Samaniego, we also find the error harmless beyond a reasonable doubt. Contrary to Hoffman's apparent assumption, reasonable inferences could be drawn from the evidence such that jurors could have found Hoffman to be a direct perpetrator. If jurors so found, then error in an instruction concerning aiding and abetting would have had no effect regardless of whether jurors based their finding of first degree murder on a theory of premeditation, felony murder, or both.

Moreover, we can tell, from the true findings on the felony-murder special circumstances, that jurors convicted Hoffman of first degree murder predicated on felony murder. (See People v. Castaneda (2011) 51 Cal.4th 1292, 1328 [elements of felony murder and felony-murder special circumstances coincide].) As the California Supreme Court has explained:

"[S]ection 189 renders all murders committed in the perpetration of, or attempted perpetration of, certain enumerated felonies, including [robbery and burglary], murder in the first degree. 'The mental state required is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute. [Citations.] "Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning — if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances."
"'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 committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.... "Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, ... he ... will be deemed guilty of first degree murder for any homicide committed in the course thereof."' [Citation.]
"Liability for felony murder thus extends to those who knowingly and purposefully participate in the underlying felony even if they take no
part in the actual killing." (People v. Dominguez (2006) 39 Cal.4th 1141, 1158-1159; see also People v. Earp (1999) 20 Cal.4th 826, 888.)

In the present case, jurors rejected the notion that Hoffman lacked the specific intent required for burglary and robbery due to voluntary intoxication. Once they found he committed those felonies, whether as the direct perpetrator, an aider and abettor, or some amalgam of both (see People v. McCoy, supra, 25 Cal.4th at p. 1120), it necessarily followed as a matter of law that the resultant homicides were murders in the first degree, and so the challenged portion of CALCRIM No. 400 had no effect.

Hoffman focuses on the theory of premeditated murder and again assumes jurors necessarily found him to be Palafox's accomplice. As we have stated, however, jurors could have found Hoffman to have been a direct perpetrator. Moreover, since we know, based on the true felony-murder special-circumstance findings, that they convicted him on a felony-murder theory that necessarily resulted in a verdict of first degree murder as to each victim, the fact CALCRIM No. 400 might have been misinterpreted with respect to premeditated murder is immaterial: The verdicts and true findings establish that the jury convicted Hoffman of first degree murder under a felony-murder theory, at a minimum, regardless of whether they even reached the question of premeditation. (See People v. Castaneda, supra, 51 Cal.4th at p. 1328; cf. People v. Hovarter (2008) 44 Cal.4th 983, 1018-1019; People v. Kelly (2007) 42 Cal.4th 763, 789.)

Finally, and even assuming they reached the premeditation theory and determined Hoffman was Palafox's accomplice rather than a direct perpetrator, jurors necessarily found Hoffman acted willfully with intent to kill: They were instructed, pursuant to CALCRIM No. 521, that the defendant acted willfully if he intended to kill; and, pursuant to CALCRIM No. 702, that in order to find a multiple-murder special circumstance true as to a nonkiller, they had to find the defendant acted with the intent to kill. Because jurors found true the multiple-murder special circumstance, they necessarily determined Hoffman, assuming he was not the actual killer, had the specific intent to kill. (See Samaniego, supra, 172 Cal.App.4th at p. 1165.) They also necessarily found he acted deliberately and with premeditation. CALCRIM No. 401 required jurors to find the perpetrator committed the crime, the defendant knew the perpetrator intended to commit the crime, the defendant intended to aid and abet the perpetrator in committing the crime either before or during the crime's commission, and the defendant's words or conduct in fact aided and abetted the perpetrator's commission of the crime. The instruction further explained that "[s]omeone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime." We agree with the Samaniego court, which said: "It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required. [Citation.]" (Samaniego, supra, 172 Cal.App.4th at p. 1166.)

Given all of the foregoing, we can confidently say, beyond a reasonable doubt, that the jury's verdicts would have been the same absent the error. Accordingly, the error was harmless. (Neder v. United States (1999) 527 U.S. 1, 15-16; Samaniego, supra, 172 Cal.App.4th at p. 1165; cf. People v. Guiton (1993) 4 Cal.4th 1116, 1129.)¹³

13 That the error was found prejudicial in People v. Nero, supra, 181 Cal.App.4th at pages 518-520, does not assist Hoffman. In that case, the jury expressly asked if an aider and abettor could be found guilty of a lesser offense. Although the correct answer was "yes," the trial court twice reread CALJIC No. 3.00, including the statement, "'Each principal, regardless of the extent or manner of the participation, is equally guilty.'" (Nero, at p. 512, italics omitted.) By contrast, CALCRIM No. 400, as given in the present case, uses more ambiguous language and, in any event, jurors expressed no confusion on this point. (See People v. Lopez, supra, 198 Cal.App.4th at p. 1120, fn. 6.)

IV

SUFFICIENCY OF THE EVIDENCE

"In order to support a finding of special circumstances murder, based on murder committed in the course of robbery [or burglary], against an aider and abettor who is not the actual killer, the prosecution must show that the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c), (d).)" (People v. Proby (1998) 60 Cal.App.4th 922, 927, fn. omitted.)¹⁴ Although conceding he was a major participant in burglary and robbery, Hoffman contends the evidence presented at trial was insufficient to establish he aided and abetted the commission of those felonies with "reckless indifference to human life" (§ 190.2, subd. (d)) and, hence, the felony-murder special circumstances cannot stand. He fails to explain what practical difference this makes, since the jury also found true a multiple-murder special circumstance under section 190.2, subdivision (a)(3), to which subdivision (d) of the statute, by its very terms, does not apply.¹⁵ Nevertheless, because constitutional considerations come into play when a conviction or true finding is not supported by substantial evidence, we address the issue. In so doing, we assume the evidence showed Hoffman was not the actual killer, although in our view the evidence was such that the jury reasonably could have found otherwise.

14 Section 190.2 provides in part:
"(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.
"(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."

15 In fact, the jury found a multiple-murder special circumstance true as to each count. The trial court appropriately struck the one appended to count two pursuant to People v. Harris (1984) 36 Cal.3d 36, 67 (plur. opn. of Broussard, J.), disapproved on another ground in People v. Bell (1989) 49 Cal.3d 502, 526, footnote 12, and People v. Allen (1986) 42 Cal.3d 1222, 1273. (See People v. McWhorter (2009) 47 Cal.4th 318, 377, 380.)

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with" a contrary finding. (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to special circumstances as well as substantive offenses (People v. Cunningham (2001) 25 Cal.4th 926, 1010).

Section 190.2, subdivision (d) conforms California law to the United States Supreme Court's holding in Tison v. Arizona (1987) 481 U.S. 137 (Tison). (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 & fn. 16.) In Tison, two brothers aided an escape by bringing guns into a prison and arming two murderers, one of whom they knew had killed in the course of a previous escape attempt. After the breakout, one of the brothers flagged down a passing car, and both fully participated in kidnapping and robbing the vehicle's occupants. Both then stood by and watched as these people were killed. The brothers made no attempt to assist the victims before, during, or after the shootings, but instead chose to assist the killers in their continuing criminal endeavors. (Tison, supra, 481 U.S. at pp. 151-152.) The Supreme Court held that the brothers could be sentenced to death despite the fact they had not actually committed the killings themselves, stating: "[R]eckless 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, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. [¶] The [brothers'] own personal involvement in the crimes was not minor, but rather, ... 'substantial.' Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each ... was actively involved in every element of the kidnap[p]ing-robbery and was physically present during the entire sequence of criminal activity culminating in the murder[s] ... and the subsequent flight. The Tisons' high level of participation in these crimes ... implicates them in the resulting deaths." (Id. at pp. 157-158.)

The California Supreme Court subsequently read Tison to "instruct[] that the culpable mental state of 'reckless indifference to life' is one in which the defendant 'knowingly engag[es] in criminal activities known to carry a grave risk of death' [citation]," and, so "ascribe[d that meaning] to the statutory phrase" in subdivision (d) of section 190.2. (People v. Estrada (1995) 11 Cal.4th 568, 577.) The court concluded that the phrase "is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term 'indifference,' referring to 'the state of being indifferent,' is that which is 'regarded as being of no significant importance or value.' [Citation.] To regard something, even to regard it as worthless, is to be aware of it. [Citation.]" (Ibid.) Thus, "the phrase 'reckless indifference to human life' conveys the notion of a subjective appreciation or knowledge by the defendant of a grave risk of death ...." (Id. at p. 578.)

Defendants decided to break into a house in the dead of night, a time when residents usually are home, asleep in bed. Thus, there was a high probability of some kind of confrontation. According to Hoffman's own statement to detectives, he knew, before he and Palafox entered Joseph and Dorothy's home, that Palafox claimed to have previously killed someone, although Hoffman professed not to believe him. Hoffman also knew Palafox had brought along a wooden baseball bat, and Palafox told him that if there were any people in the house, he (Palafox) would "take care of" them. Hoffman thought nobody was home, but, once Palafox left him alone inside the house, he heard talking and crying and other noises. Despite what he heard, his knowledge Palafox was armed and claimed to have killed before, and Palafox having told him that if there were any people he would take care of them, Hoffman, according to his statement, made absolutely no attempt to help the victims or even investigate what was going on. Instead, even after discovering what Palafox had done, Hoffman joined him in searching for and stealing various valuables.

Viewing the evidence in accordance with the standard principles of appellate review, set out ante, we find a rational trier of fact could have concluded Hoffman acted with reckless indifference to human life. (See, e.g., People v. Smith (2005) 135 Cal.App.4th 914, 927-928 [even if defendant remained outside room as lookout, jury could have found he gained subjective awareness of danger to human life during minutes it took for victim to be beaten and repeatedly stabbed; when killer emerged from victim's room, covered in blood, defendant chose to flee instead of aiding victim or summoning help], overruled on another ground in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292; People v. Hodgson (2003) 111 Cal.App.4th 566, 580 [after first shot, it must have been apparent victim was severely injured and likely unconscious, and defendant must have been aware using gun to commit robbery presented grave risk of death; defendant chose to assist killer instead of going to victim's aid]; People v. Proby, supra, 60 Cal.App.4th at pp. 929-930 [defendant provided cohort with gun; when they committed robbery together, cohort shot victim in head; defendant made no attempt to assist victim or determine if he was alive, but instead joined killer in taking money]; People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant planned to go to drug dealer's home at night to rob him by having cohort enter armed with rifle; after shooting, although defendant did not know whether victim was dead or alive, defendant did not attempt to aid victim, but carried through with original plan to steal victim's drugs]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1751, 1754-1755 [defendant planned robbery with two others, one of whom he knew possessed knife; defendant accosted victim in restroom, following which cohort ran in and stabbed her when she resisted; defendant did not attempt to prevent stabbing, but instead fled with cohorts and loot, leaving victim to die]; see also People v. Lee (2011) 51 Cal.4th 620, 636 [that defendant brought deadly weapon indicated he had considered possibility of violent encounter].)

Although, if Hoffman's version of events is accepted, he did not furnish any weapon, that fact is not dispositive when considered among all the other circumstances, particularly his knowledge that Palafox had brought such a weapon and had promised to "take care of" anyone they might find inside the house. Hoffman participated fully in executing the burglary, gave his armed companion access to the house and anyone inside, and never attempted to help the victims or even determine the source of the crying and strange noises, but chose instead to aid the person he knew had committed brutal crimes rather than aiding the victims. (See Tison, supra, 481 U.S. at p. 152.)

Hoffman appropriately concedes he was a major participant. The evidence supports a finding he acted with reckless indifference to human life. Accordingly, we uphold the felony-murder special circumstances.

V

IMPOSITION OF LWOP SENTENCES ON JUVENILES

Defendants contend imposition of a sentence of LWOP on a juvenile — even one who killed — violates the federal and state Constitutions. They argue that under the analysis set out in Graham v. Florida (2010) 560 U.S. ____ (Graham), the Eighth Amendment to the United States Constitution requires all juveniles to be afforded a meaningful opportunity to be considered for release. Hoffman additionally contends his sentence is unconstitutional because it is grossly disproportionate to his individual culpability. Each unsuccessfully (1) made the same claim or claims below, and (2) asked the trial court to exercise its discretion under section 190.5, subdivision (b) to impose a sentence of 25 years to life.

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual" punishment. (Italics added.) Article I, section 17 of the California Constitution prohibits infliction of "[c]ruel or unusual" punishment. (Italics added.) The distinction in wording is "purposeful and substantive rather than merely semantic. [Citations.]" (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) As a result, we construe the state constitutional provision "separately from its counterpart in the federal Constitution. [Citation.]" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.) This does not make a difference from an analytic perspective, however. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7.) The touchstone in each is gross disproportionality. (See Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of O'Connor, J.); Rummel v. Estelle (1980) 445 U.S. 263, 271; People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) "'Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]' [Citation.]" (People v. Mantanez, supra, 98 Cal.App.4th at p. 358.) A defendant must overcome a "considerable burden" when challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)

"The [United States Supreme] Court's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty." (Graham, supra, 130 S.Ct. at p. 2021; see, as examples of second category, Kennedy v. Louisiana (2008) 554 U.S. 407, 413 [8th Amend. prohibits imposition of death penalty for rape of child where crime did not result, and was not intended to result, in death of victim]; Roper v. Simmons (2005) 543 U.S. 551, 572-573 (Roper) [same re: defendants who committed their crimes before the age of 18]; Atkins v. Virginia (2002) 536 U.S. 304, 321 [same re: mentally retarded offenders]; Ford v. Wainwright (1986) 477 U.S. 399, 410 [same re: insane/incompetent prisoners].)

In Graham, the high court considered, for the first time, a categorical challenge to a term-of-years sentence (Graham, supra, 130 S.Ct. at p. 2022), and concluded the Eighth Amendment does not permit a juvenile offender to be sentenced to LWOP for a nonhomicide offense. (Graham, at p. 2033.) The high court reasoned: (1) LWOP sentences are imposed on juvenile nonhomicide offenders so rarely, even in jurisdictions in which such sentences are authorized, that it is fair to say a national consensus has developed against the imposition of such sentences (id. at pp. 2023-2026); and (2) the challenged sentencing practice does not sufficiently serve legitimate penological goals (id. at pp. 2026-2030). The court reached the latter conclusion because (1) juveniles, having lessened culpability as compared to adults, are less deserving of the most severe punishments, since they lack maturity and have an underdeveloped sense of responsibility, are more susceptible to negative influences and outside pressures, and cannot reliably be classified among the worst offenders as a greater possibility exists that a minor's character deficiencies will be reformed (id. at pp. 2026-2027); (2) defendants who do not kill, intend to kill, or foresee that life will be taken are less deserving of the most serious forms of punishment than are murderers, and so a juvenile offender who did not kill or intend to kill "has a twice diminished moral culpability" (id. at p. 2027); (3) LWOP is the second most severe punishment permitted by law, exceeded only by the death penalty, and its denial of any hope of restoration of life's most basic liberties constitutes an especially harsh punishment for a juvenile (id. at pp. 2027-2028); and (4) the legitimate goals of penal sanctions — retribution, deterrence, incapacitation, and rehabilitation — do not provide adequate justification for LWOP for juvenile nonhomicide offenders (id. at pp. 2028-2030).

In conclusion, the court stated: "A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society." (Graham, supra, 130 S.Ct. at p. 2030.)

Defendants contend the same reasoning applies to juveniles convicted of homicides; hence, we should conclude LWOP constitutes cruel and unusual punishment, and so is forbidden by the Eighth Amendment to the United States Constitution, when imposed for a homicide offense committed by a juvenile. The United States Supreme Court recently declined to so find. In Miller v. Alabama (June 25, 2012, No. 10-9646) 567 U.S. ____ (Miller), the high court discussed Graham, Roper, and other pertinent cases, and concluded:

"We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. [Citation.] By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider [the] alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between 'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.] Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Miller, supra, 2012 U.S. Lexis at pp. *35-*36, italics added, fn. omitted.)

Miller applies to both killers and nonkillers.¹⁶ In our view, it clearly requires rejection of defendants' Eighth Amendment claims. This is so because, as the United States Supreme Court recognized, California does not mandate LWOP for juveniles convicted of special-circumstance murder; rather, section 190.5, subdivision (b) makes LWOP discretionary for juveniles. (Miller, supra, 2010 U.S. Lexis at pp. *43-*45, fn. 10.)¹⁷ The high court stated: "Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." (Id. at p. *54.) Section 190.5, subdivision (b) provides that opportunity.

16 Miller comprised two cases involving offenders (Miller and Jackson) who were 14 years old when they committed their crimes. Miller was the actual killer; he received a mandatory LWOP sentence because the murder was committed in the course of arson. Jackson was not the actual killer and may not have intended to kill, but was subject to a mandatory sentence of LWOP because he aided and abetted a robbery of a video store knowing that one of his coperpetrators was armed with a shotgun. The coperpetrator shot and killed the store clerk during the course of the robbery. (Miller, supra, 2012 U.S. Lexis at pp. *10-*11, *13-*16.)
In his concurring opinion in Miller, Justice Breyer stated that should the state continue to seek a sentence of LWOP for Jackson, there would have to be a determination whether Jackson killed or intended to kill the robbery victim. (Miller, supra, 2012 U.S. Lexis at pp. *54-*55 (conc. opn. of Breyer, J.).) Under the instructions given each defendant's jury in the present case, in order to find the multiple-murder special circumstance true, jurors necessarily found each defendant either killed or intended to kill.

17 Section 190.5, subdivision (b) provides: "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances ... has been found to be true ..., who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life."

Subdivision (b) of section 190.5 "requires 'a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life for 16- or 17-year-old special circumstance murderers. The choice whether to grant leniency of necessity involves an assessment of what, in logic, would mitigate or not mitigate the crime.'" (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089.) The trial court here was well aware of its discretion under section 190.5; the fact of defendants' youth — and all that entails — was squarely before it, and it declined to impose the more lenient penalty for reasons it fully set out in the record. Neither defendant claims error in this regard.¹⁸

18 Although it has been said that section 190.5, subdivision (b) "'evidences a preference for the LWOP penalty'" (People v. Ybarra, supra, 166 Cal.App.4th at p. 1089), the trial court here expressly declined to exercise any such preference.

We turn now to Hoffman's claim that an LWOP sentence is disproportionate to his individual culpability, and so amounts to cruel and/or unusual punishment in his particular case.¹⁹ As summarized in People v. Blackwell (2011) 202 Cal.App.4th 144, 158:

19 We do not read Palafox's briefs as raising this argument. Our analysis and conclusion would be the same as to him, in any event.

"A sentence in an individual case violates the Eighth Amendment proscription against cruel and unusual punishment only if it is grossly disproportionate to the crime. [Citations.] 'A court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.] "[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality" the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.' [Citation.]
"California Constitution, article I, section 17, prohibits punishment that is cruel or unusual. Under this provision, a sentence will not be allowed to stand when it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity, considering defendant's history and the nature of the offense. [Citations.] Much like Eighth Amendment analysis, we consider the nature of the offense and the offender, with particular regard to the danger each presents to society, as well as the penalties prescribed in this state for more serious offenses and those prescribed in other states for the same offense. [Citation.]"

Defendants went to the victims' home at a sufficiently late hour that, despite the absence of a vehicle in the driveway, it was reasonably foreseeable someone would be home, possibly asleep in bed. Defendants planned to burglarize the residence, and both were aware, prior to entering, that Palafox was armed with at least one potentially lethal weapon. Hoffman knew Palafox claimed to have killed before, and Palafox said that if it turned out someone was inside, he would 'take care of" them. Hoffman gained entry first and let Palafox in, then either participated in incredibly brutal murders or stood by and did nothing even after becoming aware one or more people not only were in the house, but were having some sort of encounter with his armed companion. By finding the multiple-murder special circumstances true, the jury necessarily found that Hoffman, if not the actual killer, intended to kill. By finding the felony-murder special circumstances true, the jury necessarily found that if Hoffman was not the actual killer, he either intended to kill or acted as a major participant in the burglary and robbery and with reckless disregard for human life. (See People v. Blackwell, supra, 202 Cal.App.4th. at pp. 158-159.)

Nor is Hoffman's individual culpability mitigated by his background. Although not quite 17 years old when the crimes were committed, nothing in the record suggests Hoffman was unusually immature or childlike. (Compare Dillon, supra, 34 Cal.3d at pp. 482, 483, 486, 488 with People v. Young (1992) 11 Cal.App.4th 1299, 1310.) While Hoffman had no prior criminal record, he readily engaged in at least nonviolent criminal activity. In contrast to the situation in Dillon, in which the California Supreme Court found disproportion between punishment and offense to be "manifest on the record" before it and so modified a judgment of first degree felony murder so as to punish the defendant as a second degree murderer (Dillon, supra, 34 Cal.3d at p. 450), nothing in the record before us suggests the jury, probation officer, or trial court felt the statutory penalty was overly harsh as applied to Hoffman. Indeed, as we have noted, the trial court had discretion to sentence Hoffman to a total consecutive term of 50 years to life, but chose not to do so.

Hoffman seeks to liken his situation to that of the defendant in Enmund v. Florida (1982) 458 U.S. 782 (Enmund). In that case, two persons robbed and killed an elderly couple at their farmhouse. Enmund was the getaway driver and, at the time of the crimes, was sitting in a car some 200 yards away. (Id. at pp. 783-786.) In reversing Enmund's death sentence, the United States Supreme Court stated:

"The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund's own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on 'individualized consideration as a constitutional requirement in imposing the death sentence,' [citation], which means that we must focus on 'relevant facets of the character and record of the individual offender.' [Citation.] Enmund himself did not kill or attempt to kill; and, ... the record before us does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. Yet under Florida law death was an authorized penalty because Enmund aided and abetted a robbery in the course of which murder was committed. It is fundamental that 'causing harm intentionally must be punished more severely than causing the same harm unintentionally.' [Citation.] Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment." (Id. at p. 798.)

Enmund does not assist Hoffman. First, it concerns the proportionality of a sentence of death. Hoffman, of course, received a sentence of LWOP. Moreover, Enmund predates the United States Supreme Court's decision in Tison, supra, 481 U.S. 137, in which the high court concluded Enmund did not preclude imposition of the death penalty on those who, while not the actual killers, were found to have been major participants and to have acted with reckless indifference to human life. (Tison, supra, at p. 158.) We once again emphasize that Hoffman's jury necessarily made the requisite findings under Tison.

In sum, imposition of LWOP upon Hoffman does not offend the federal or state Constitution.

VI

IMPOSITION OF PAROLE REVOCATION RESTITUTION FINES

Each defendant was ordered to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b). In addition, the trial court imposed but suspended, pending successful completion of parole, a parole revocation restitution fine in the same amount pursuant to section 1202.45. Defendants now contend imposition of the latter fine was unauthorized because their sentences do not include periods of parole. The Attorney General appropriately concedes the error. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; cf. People v. Brasure (2008) 42 Cal.4th 1037, 1075.) We order both judgments modified accordingly.

DISPOSITION

The parole revocation restitution fines imposed pursuant to Penal Code section 1202.45 in Kern County Superior Court case Nos. BF125737A and B are stricken. As so modified, the judgments are affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment in each case showing said modification, and to transmit a certified copy of same to the appropriate authorities.

________

DETJEN, J.
WE CONCUR: _______________
GOMES, Acting P.J.
_______________
FRANSON, J.