PEOPLE v. CONTRERAS

Respondent’s Petition for Review

Cal.February 20, 2015

§224564 In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. LEONEL CONTRERASand WILLIAM STEVEN RODRIGUEZ, Defendant and Appellant. SUPREME COURT Case No. mea FEB 20 2015 Crank &. McGuire Clerk Deputy Appellate District Division One, Case No. D063428 San Diego County Superior Court, Case No. SCD236438 The Honorable Peter C. Deddeh, Judge PETITION FORREVIEW KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L, GARLAND Senior Assistant Attorney General ARLENE A. SEVIDAL Supervising DeputyAttorney General TAMI FALKENSTEIN HENNICK Deputy Attorney General State Bar No. 222542 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2274 Fax: (619) 645-2271 Email: Tami.Hennick@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue PreSented..........::ccccccssscssscesssssssesesecssssesseeseeececeseesessessaeersecccenreesserareensne 1 Statement ofthe Case .........ccccsssscecssstecsssscsssessessneceeesssecseeeeessensceetessseessansens 1 Reasonsfor REVICW .....sscccccseceecsssessecesssseceecesssscscsecesaceveccesseceessssesseegesssscesseseresanees 3 CONCHUSION .........cccessecccesesncsssesseesesscecesseeeesssesssssetessesscsescesssueeeseensessssceaeesesenees 5 TABLEOF AUTHORITIES Page CASES Graham v. Florida (2010) 560 ULS. 48 ooocccsesessesescesseeseceessesssenerseeesneseeaesseseseeseesatenseneesees 3 | People v. Caballero (2012) 55 Cal4th 262.0... cccsceseccseesseecscessessaseanceessncaeesessesseecseeseesseeseseees 3 STATUTES Penal Code § 182, subd. (a)(1)oo.eeeeee esc eeseeereseasensceseeseusessseansnenssenesseveesenanseeases 2 § 207, SUDA. (8)oeect eee reeseeeseeseneessenaeseesseneanersessaneanenasvensenseeasenatoaeesnad 2 § 261, SUDA. (A)(2).....ecccssecsceresssssecssensecsersssesssesssseenscsccascsesevassscoseneessssaestesteaes 2 § 286, subd. (C)2)(A)....cccececssescecsecceseecsessereesseceseecsessesuseesesesseeerenseeasecsesenss 2 § 288a, subd. (C)(2)(A) 0... eeetecseeeeseneceeseeneeceesseneseesseaeenestenesseneereanenseaeeneees 2 § 289, subd. (a)(1)(A) one eecccecccccccesseneeseeseeeesesssacenecscesessenseeseasaeeaesaesasensanenas 2 § 293.5 iececsscsesesccecescensecesssesescsenaseeeesseenssesneeneanes seseneenesseaseseaneneneasnserasenens 2 § 654 ec eecececccsesesecseceeresseeeseesscesscseaasensecsaseeecapscesaeeesassoeeeseaesenseneeees seseceseevenee 3 § 667.6, subds, (D) - (1) occcccesecsscesecsessessescescesaecoeseessscnesssessecetenesesenseneens 4 8 BOSeeeseecessecsecesesecesscseeseseeeeses vceesveceeectaceseeressnsccssereesenvevenversevaes 1,4 § 3051, subd. ()(1)..... ccc cccscccseecesereeeceseenssescesensneseesscenerseeaesaneeseaessesenesaeeas 1 — $3051, Subd. (O)C1) seececseeecsesssescnesesescsssenesessesstensnessseesersersentecnessestsseree b § 3051, subd, (b)(2) oo.eecescssscsetceecsreetsesessensensessevseceeseecsssnssstecnesseceeteateataes 1 § 3051, subd. (€) vo...eeeeseeseeceeseeeeeees seeestestescstecsatecsnestecsucecsnteessatecseeeeasss 1 § 3051, subd. (£)(1) nceesceseeeteccesececeesessascaessceseessesnersessenenessessessesenseneses j § 3051, subd. (hh)...eereeeeeeeedeseceecesvsceseesuseessovessncesence eeveteaseeeeeseeeeees 4 Court RULES California Rules of Court Tle 8.500woecceccsctecccccesescesssvecsecceescevecseestveteesvereesessevecvsveseesesevencecenseseess ] rule 8.500, subd. (B)(1) oo... ccssseescesecsersenereessecesceecesseseeseceseeeeneesnsensereans 1 Tle 8.512(A)(2)....cesccesscecesserseseeereecesencesteerscesecnsaecesnesraceeesseeneceusasonssaseseaes 1,4 ii TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuantto rule 8.500 of the California Rules of Court, the People of the State of California respectfully request that this Court grant review in this matter to settle an important question of law. (Cal. Rules of Court, rule 8.500, subd. (b)(1).) The single issue presented in the current case is before | this Court in In re Alatriste, S214652, and In re Bonilla, S214960. As such, petitioner asks that briefing be deferred pending disposition of those _ cases. (Cal. Rules of Court, rule 8.512(d)(2).) The unpublished opinion, attached as Exhibit A, wasfiled on January 14, 2015. ISSUE PRESENTED . Notwithstanding Senate Bill No. 260 and Penal Codesection 3051 ‘ does a sentence of 50 yearsto life, and 58 yearsto life, constitute de facto life sentences for defendants sentenced at the age of 16? STATEMENT OF THE CASE Appellants Contreras and Rodriguez kidnapped two teenage girls at knifepoint as the girls sat talking under a tree in a park. Appellants dragged ' Senate Bill No. 260, which becameeffective on January 1, 2014, added section 3051 to the Penal Code, which grants.a youth offender parole hearingto all state prisoners who were under 18 years of ageat the time of his or her controlling offense. (§ 3051, subd. (a)(1). Specifically, juvenile offenders with determinate sentences of any length shall receive a youth offender parole hearing during the 15th year oftheir incarceration. (§ 3051, | subd. (b)(1).) Juvenile offenders sentencedto life terms of less than 25 yearsto life for the controlling offense shall receive a youth offender parole hearing during the 20th yearoftheir incarceration. (§ 3051, subd. (b)(2).) At these hearings, the state is required to provide the inmate with a “meaningful opportunity to obtain release.” (§ 3051, subd. (e).) The state also is required to assess the “growth and maturity” ofthe inmateat the hearing. (§ 3051, subd.()(1).) the girls to a dark and secluded area and repeatedly raped and assaulted them. Appellants took turns assaulting both victims, stopping only when they heard the voices of adults searching forthe girls. Both appellants eventually confessed to the attacks. (Opn. at pp. 4-12.) | A jury convicted Contreras of one count of conspiracy to commit kidnapping and/orforcible rape (Pen. Code,” § 182, subd. (a)(1); count 1); two counts of kidnapping (§ 207, subd. (a); counts 2 & 14), seven counts of forcible rape (§ 261, subd. (a)(2); counts 3, 5, 7-8, 15, 17 & 20), one count ofrape by aforeign object with force (§ 289, subd. (a)(1)(A); count 4), eight counts of forced oral copulation (§ 288a, subd. (c)(2)(A); counts 6, 9, 11-13, 18-19 & 21), and two count of sodomybyuse offorce (§ 286, subd. (c)(2)(A); counts 10 & 16). Numerous enhancementallegations accompanied the sexual offense counts, including that the crimes were committed during a kidnapping and involved multiple victims. The jury foundall ofthe accompanying enhancements applicable, except for the multiple victim enhancements for counts 4 and 5. | The prosecution charged Rodriguez with the same offenses and many of the same enhancementallegations. A separate jury convicted Rodriguez. of counts 2, 8 through 12,14 through 16, and 21, and found the accompanying enhancementallegations applicable.” ? Further statutory references are also to the Penal Code unless otherwisestated. 3 Thevictims were identifiedbelow as Jane Doe 1 (Doe 1) and Jane Doe 2 (Doe 2). (§ 293.5.) Counts.2 through 13 were crimes against Doe 1. _ and counts 14 through 21 were crimes against Doe2. * The jury found Rodriguez not guilty of count 4. The jury could not reach unanimousverdicts on counts 1, 3, 5 through 7, 13, and 17 through 20. The court declared a mistrial as to these counts and later dismissed them without prejudice. The court sentenced Contreras to a prison term of 50 yearsto life plus eight years. The sentence consisted of consecutive terms of 25 yearsto life for counts 3 and 15, plus two consecutive four-year terms for the weapon use enhancements accompanying those counts. The court imposed concurrent terms for counts 1, 4 through 13, and 16 through 21. It stayed ' the sentences for counts 2 and 14 under section 654. The court sentenced Rodriguez to a prison term of 50 yearsto life. The sentence consisted of consecutive terms of 25 years to life for counts 8 and 15. The court imposed concurrent terms for counts 9 through 12, 16, | and 21. It stayed the sentences for counts 2 and 14 under section 654. (Opn.at pp. 2-3.) | Onappeal, amongother things, appellants arguedthat their sentences amountto cruel and unusual punishment because they were juveniles when they committed their crimes and their sentences do not provide them with a meaningful opportunity for parole in their lifetimes. The Court ofAppeal concluded that appellants’ sentencesconstitute cruel and unusual punishmentbecause they do not comply with the requirementsset forth in Graham vy. Florida (2010) 560 U.S. 48 (Graham),and People vz Caballero (2012) 55 Cal.4th 262, 267, fn: 3 (Caballero), and remandedthe matter for resentencing. It affirmed the judgments in all other respects. REASONSFOR REVIEW This Court should grant review, and defer briefing, in light of the important question of law in Alatriste and Bonilla concerning the | application of Caballero and Graham Review is required because the Court of Appeal’s application of Caballero and Graham was overbroad. Cabellero held that the Constitution requires “that a state must provide a juvenile offender ‘with ‘somerealistic opportunity to obtain release’ from prison during his or her expected lifetime.” (Cabellero, supra, 55 Cal.4th at p. 268.) The Court of Appeal acknowledged that “Rodriguez’s and Contreras’s first parole eligibility date theoretically falls within their expected lifetimes.” (Opn.at p. 40.) The court held, however, that the sentences preclude any possibility ofparole until they are near the end oftheirlifetimes as the parties agree Rodriguez will be 66 and Contreras will be 74 whentheyarefirst eligible for parole. This falls short of giving them the realistic chance for release contemplated by Graham. Instead, the sentences tend to reflect a judgment Rodriguez and Contrerasare irretrievably incorrigible. While this judgment may ultimately prove to be correct, it is not one Graham permits to be madeatthe outset. (Opn.at p. 41.) - Because Alatriste and Bonilla raise similar issues, this court should grant and hold this case to ensure that appellants are treated the same as - other defendants facing the samesituation in other parts of the state.° (Cal. - Rules of Court, rule 8.512(d)(2).) > Appellants were sentenced under the One Strike Law. Penal Code section 3051 does not apply to sentences imposed under the one strike law or Penal Codesection 667.6, subdivisions (b) through (i) (§ 3051, subd. (h)). However, the constitutionality ofthe length ofthe sentence, notwithstanding section 3051, is also at issue in Bonilla and Alatriste, and will likely be resolved in those matters. ~ CONCLUSION The petition for review should be granted with action deferred pending the decision in Alatriste and Bonilla. Dated: February 12, 2015 $D2013805420 71028613.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER _ Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ARLENE A. SEVIDAL Supervising Deputy Attorney General aul deco TAMI FALKENSTEIN HENNICK ‘Deputy Attorney General _ Attorneysfor Plaintiffand Respondent - CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 874 words. Dated: February 12, 2015 KAMALAD. HARRIS . Attorney General of California daw ee TAMI FALKENSTEIN HENNICK Deputy Attorney General Attorneysfor Plaintiffand Respondent ATTACHMENT 1 Filed 1/14/15 NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinions not certified for _ publication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D063428 Plaintiff and Respondent, V. (Super. Ct. No. $CD236438) LEONEL CONTRERASetal., Defendants and Appellants. APPEALS from judgments of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed in part and reversedin part. Nancy J. King, under appointment by the Court ofAppeal, for Defendant and Appellant Leonel Contreras. Daniel J. Kessler, under appointment by the Court ofAppeal, for Defendant and Appellant William S. Rodriguez. Kamala D. Harris, Attorney General, DaneR. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and TamiF. Hennick, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Ajury convicted Leonel Contreras of one count of conspiracy to commit kidnapping and/or forcible rape (Pen. Code,! § 182, subd. (a)(1); count 1); two counts of kidnapping (§ 207, subd. (a); counts 2 & 14), seven counts of forcible rape (§ 261, subd. (a)(2); counts 3, 5, 7-8, 15, 17 & 20), one count ofrape by a foreign object with force (§ 289, subd. (a)(1)(A); count4), eight counts of forced oral copulation (§ 288a, subd. (c)(2)(A); counts 6, 9, 11-13, 18-19 & 21), and two count of sodomy byuse of | force (§ 286, subd. (c)(2)(A); counts 10 & 16).2 Numerous enhancements allegations accompaniedthe sexual offense counts, including that the crimes were committed during a kidnapping and involved multiple victims. The jury foundall ofthe accompanying _ enhancements applicable, except for the multiple victim enhancements for counts 4 and 5. The prosecution charged William Steven Rodriguez with the same offenses and | many ofthe same enhancementallegations. A separate jury convicted Rodriguez of counts 2, 8 through 12, 14 through 16, and 21, and found the accompanying enhancement allegations applicable.3 I Furtherstatutory references are also to the Penal Code unless otherwisestated. 2 The victims were identified below as Jane Doe 1 (Doe 1) and Jane Doe 2 (Doe2). (§ 293.5.) Counts 2 through 13 were crimes against Doe 1 and counts 14 through 21 were crimes against Doe 2. 3 The jury found Rodriguez not guilty of count 4. The jury could not reach unanimousverdicts on counts 1, 3, 5 through 7, 13, and 17 through 20. The court declared a mistrial as to these counts andlater dismissed them without prejudice. 2 The court sentenced Contrerasto a prison term of 50 yearsto life plus eight years. The sentence consisted of consecutive terms of 25 years to life for counts 3 and 15, plus two consecutive four-year terms for the weapon use enhancements accompanying those counts. The court imposed concurrent terms for counts 1, 4 through 13, and 16 through 21. It stayed the sentences for counts 2 and 14 undersection 654. The court sentenced Rodriguez to a prison term of 50 yearsto life. The sentence consisted of consecutive terms of25 years to life for counts 8 and 15. The court imposed concurrent terms for counts 9 through 12, 16, and 21. It stayed the sentences for counts 2 and 14 undersection 654. Contreras and Rodriguez both appeal, contending their sentences constitute cruel and unusual punishment because they were juveniles when they committedtheir crimes and their sentences do not provide them with a meaningful opportunity for parole in their lifetimes, Contreras additionally contends we must reverse his convictions because the court prejudicially erred by (1) admitting evidence of his confession; (2) excluding his expert evidence, third party-culpability evidence, and character evidence; (3) declining to dismiss counts 4, 7, and 10 due to defective verdicts; (4) denying his motion to discover juror personalidentifying information; and (5) denying his motion for a new trial based on juror misconduct. He also contends we mustreverse his convictions because the accumulation of these errors deprived him ofa fairtrial. — Weconclude Contreras and Rodriguez's sentences constitute cruel and unusual punishmentbecause they do not comply with the requirements set forth in Graham v. Florida (2010) 560 US. 48 (Graham). We,therefore, reverse the sentences and remand the matter for resentencing. Weaffirm the judgments in all other respects. BACKGROUND ProsecutionEvidencePresented to Both Juries Doe2, then 15, accompanied Doe 1, then 16, and Doe1's parents to a party for one of Doe1's relatives. The party was at the relative's house. At dusk, while the party wasstill going on, the girls went for a walk and sat downby a tree in an open space area. Contreras, then 16, and Rodriguez, then 16, walked past them. Both boys wore dark clothing with hoods covering their heads. Rodriguez wore a red and black cap, a dark- colored Padres T-shirt, and a long-sleeve, plaid or checkered jacket with a gray hood. Contreras wore a long-sleeve, dark-colored, hooded jacket. A short time later, Contreras and Rodriguez tackled the girls from behind. Contreras tackled Doe | and Rodriguez tackled Doe 2. Both boys wore bandanas covering their noses and mouths. Contreras held a knife to Doe1's throat. One ofboys asked for the girls' cell phones. Theboyspulled the girls up and started taking them toward street. Rodriguez covered Doe 2's mouth with his hand as she struggled to get away. Contreras repeatedly told Doe 1 to tell Doe2 to "shut the £—k up." The boys forced the girls to walk across the street, up an embankment, and into a wooded area. As they started going up the embankment, Doe 2 continuedto struggle and threw her weight backward, causing both her and Rodriguez to stumble. Doe 2 bit Rodriguez's hand andtried to get away. However, Doe1, at Contreras's direction, told Doe 2 to be quiet and stopresisting. 4 When Doe 2 got up off the ground, Rodriguez tied his bandana around her mouth and told her he would hurt her if she screamed. He took her to a clearing. Contreras took Doe 1 to a different location nearby. The area was not lighted and wasnot visible from the street. Rodriguez took off Doe 2's shorts and underwear. He told her to get down. As she lay on her back, he got on top of her, put his penis in her vagina, and started thrusting in and out. He pulled down the bandanaand kissed her, putting his tongue in her mouth. Hetold her not to scream or he would hurt Doe 1. He asked herif she liked what he was - doing. She was wearing a purity ring and had neverhad sexual intercourse before. His actions were painful and caused her to wince. | After what seemedlike a long time to Doe 2, Rodriguez madeherflip over. As she lay on her stomach,he puthis penis in her anus andstarted thrusting in and out. As Rodriguez was assaulting Doe 2, Contreras had Doe 1 lay down. He took off her shorts, underwear, and shoes, had her help him take off her dress, and had hertake off her bra. He touchedherbreasts andtried to push his penis into her vagina, but his penis was soft. He asked her whether she was a virgin andshe told him she was. Heputhis fingers in her vagina for a couple of seconds, which waspainful for her. He told her to _ keep her legs open and pushedhis now erect penis into her, which wasalso painfulfor her. He then started thrusting in and out. After awhile, he took his penis out of her vagina, stood up,told her to suckit, and warned herhe did not want to feel any teeth. He puthis penis in her mouth and pushed her head back and forth. She gagged and threw up. He then pushedhis penis back into 5 her vagina. Hetold her to keep quiet and keep her legs open. Shetried to keep quiet, but made some noise because she was uncomfortable. He told her to shut up. He kept the knife in his pocketduring the sex acts. Aroundthis time, Rodriguez called over to Contreras and the two boys switched places. Rodriguez kissed Doe 1 and bit her cheek and neck. Heput his penis in her vagina and thrustin and out. He then put his penis in her mouth and pushed her head back and forth. She gagged and threw up again. He lay down onthe ground, had herget on top of him, pushed his penis into her anus, and had her "hump" him by moving up and down. After a couple ofminutes, he had hersit back down. Heput his penis in her mouth again and pushedher head back and forth. She gagged and threw up again. As Rodriguez was engaging in sex acts with Doe 1, Contreras took offDoe 2's dress and had her help him take off her bra. Onceall ofher clothes were off, he had her lay on her back. While holding the knife to her neck, he told herto open herlegs "really wide.” He thenput his penis into her vaginaandstarted thrusting. The action was painful to her. He asked whether she wasa virgin and she told him she was. Healso asked whether she had a boyfriend and where she wentto school. Shetold him she did not have a boyfriend and what school she attended. After some periodoftime, Contreras moved further up on Doe|2. While holding the knife in his hand, he put his penis in her mouth and told her to suckit. She turned her head away and told him she could not breathe. He put his penis back in her mouth and told her to try. She turned her head away again. He changedtheir positions so he lay on his back and she was on top ofhim. Hetold her to put his penis in her vagina. She told 6 him she did not know how,so he putit in himself. He told herto jump up and down, but she did not know what he meant. He thrust up and down while fondling her breasts. His knife was on the ground nearby. Whenthey werein this position, Contreras's bandana slipped and Doe2 got a good look at his face. At somepoint, Contreras asked Doe 2, "Did [Rodriguez] —k your mouth?" She told him no. Rodriguez then brought Doe 1 over to the same place as Doe 2. Once more, Rodriguez put his penis in Doe 1's mouth and pushedher head back and forth. Once more, she threw up. Afterwards, the two boys switched again. | Rodriguez had Doe 2 get on her back andhe put his penis in her mouth. She turned her head away and told him she could not breathe, but he put: his penis back in her mouth. While this was occurring, Contreras put his penis in Doe I's mouth. He moved her head back and forth and warned herhe did not wantto feel any teeth, She gagged yet _again. Neither Contreras nor Rodriguez wore a condom during any of the sex acts. Whenthe boys decided to stop, they had the girls put their clothes back on. As Doe 2 was getting dressed, Rodriguez kissed Doe 2, touched herlegs, puthis finger in her vagina, and told her she was beautiful. Before Doe 1 got dressed, Rodriguez also kissed her and askedherif she liked what had happened. Hetold her she was beautiful and that, if they had knowneach other before, she would have beenhisgirlfriend. Meanwhile, Contreras pulled a bicycle from the bushes. The boys then directed the girls which way to go-and told them not to say anything to anyone. Oneofthe boys said they would follow the girls home and comeafter thegirls if they ever told anyone. Contreras also threatened to find and hurt one ofDoe 1's youngrelatives. 7 The girls walked downthe slope andacrossthe street, where they met up with Doe 1's parents, who had beenlooking for them. They got in Doe1's parents’car andleft. Doe1's mother asked where they had been and what had happened to them. | Atfirst, the girls did not say anything. Doe 2 did not say anything because she thought the boys werestill close by and she just wanted to get away. However, Doe 1's mother asked them directly if they had been raped and they acknowledged they had been. Doe 1's parents took them back to Doe 1's relative's home, where someonecalled the police. Shortly after the police were notified of the crime, a helicopter flew over the area repeatedly announcing the suspects' descriptions and that they were riding on the same bicycle. Onthe nightofthe crimes, Rodriguez and Contreras were staying at Rodriguez's aunt's home, which wasnear the crime scene.4 Around the time the crimes were occurring, Rodriguez's aunt searched in and around the house for them, but could not find them. Sometime later, she heard a door slam. Five to seven minutes after that she heard the helicopter. When shelearned whatthe helicopter was broadcasting, she hoped the ‘suspects were not Rodriguez and Contreras. She searched again for the two boys and foundthem in the garage. She was angry by the coincidence oftheir arrival and the helicopter's broadcasts. Shetold a police detective she initially thought the boys might be the suspects. However, she later 4 Althoughtheir preciserelationship is not clear from the record, Contreras referred to the womanas his aunt and to Rodriguez ashis cousin. 8 concluded the boys could not have committed the crimes because they were too young and no onein the family owns anything with the "Padres" name onit. When Rodriguez's cousin heard the helicopter's broadcasts, she went into the garage and confronted the boys. They were sweaty and looked nervous. Her mother, Rodriguez's aunt, told her Contreras admitted being one ofthe assailants, but he blamed Rodriguez for the crimes and said Rodriguez was the one with the knife. A police detective found a bicycle matching the description of the one the assailants used along the side ofRodriguez's aunt's house. Detectives also found clothing in Rodriguez's aunt's garage and Rodriguez's father's home matchingthegirls’ description of what the boys wore the night of the crimes. About six weeks after the crimes, a landscape worker found a knife while clearing brush near the crime scene. After reporting the crimes, the girls submitted to sexual assault examinations. The girls' injuries and other physical findings were consistent with the girls’ version of events. DNA testing was conducted on swabs taken from the girls during their examinations. The tests showed Rodriguez was included as a possible minor contributor to a DNA mixture found on a swab taken from DoeI'sbreast, Rodriguez was included as a possible major contributor and Doe 2 wasincludedas a possible minor contributor toa DNAmixture found on a swab taken from Doe I's neck, and Rodriguez wasincluded as a possible contributor toa DNA mixture found on a swab taken from Doe1's vulva. DNAtesting was also conducted on several items of clothing found by detectives, including a black hooded sweatshirt, a Padres T-shirt, and a plaid jacket. Rodriguez, Doe 1, and Doe 2 wereall included as possible major contributors to a DNA mixture found on 9 swabs takenfrom the waistband and shoulderarea of the sweatshirt. They werealsoall included as possible contributors to a DNA mixture found on a swab taken from the cuffs, and Rodriguez and Doe | were included as possible major contributors to a DNA mixture found on a swabtaken from theinside neck. Doe I's DNA matched DNA foundon a swabtaken from the waistband area ofthe Padres T-shirt. Rodriguez and Doe 2 were included as major contributors and Contreras and Doe 1 were included minor contributors to a DNA mixture found on dark-stained cuttings from the front waistbandarea ofthe shirt. Doe 2 was included as a possible major contributor to a DNA mixture found on a swab taken from the waistband ofthe plaid jacket, Doe 1 was includedas a possible major contributor to a DNA mixture found on a swab taken from the shoulder area, and Doe 1 and 2 were both included aspossible major contributors toDNA mixtures found on swabstaken fromthe inside cuffs and neckarea. Doe 2 was includedas a possible major contributor to DNA found on presumptively bloodstained cuttings from aroundthe jacket's buttonholes. Both Doe 1 and Doe 2 identified Rodriguez from a photographic lineup and at trial. Doe 2 also identified Contrerasattrial. Additional Prosecution Evidence Presented to Rodriguez's Jury Rodriguez's jury heard a recording of Rodriguez's statementto police detectives. The statement largely corroborated the victims' accounts. 10 Additional Prosecution Evidence Presented to Contreras's Jury Contreras's jury heard recordings of Contreras's statement to police detectives. Contreras told police detectives he went to his aunt's house the night of the crimes. He had a knife with him. He and Rodriguez discussed what they were goingto do that night. Their first idea was to rob people. However, they changedtheir mindafter a lady passed by them. They stashedtheir bicycle and, as they were walking around, Contreras pointed out Doe 1 and Doe 2 and Rodriguez said, "Let's go." | Contreras said he asked forthe girls' cell phone so they wouldnotcall anybody. He grabbedthetaller girl and told herto stay still. Because he had a knife, he hoped the ‘shorter girl wouldstaystill as well. They took the girls across the street and up the embankment wherethey had stashed the bicycle. The taller girl tripped on the way up. Whentheygotto the area wherehe had stashed the bicycle,he told thetallergirl to take off her clothes and bra. Then, he had her turn to face him and he "just put it in the front.” Contreras's Defense Evidence A false confessions expert testified about police interrogation techniques and how false confessions occur. A DNA expert testified it would be extremely improbable for there to be no DNA found following a sexual assault involving multiple instances of anal, oral, and vaginal sex where the assailants did not use condoms. Healsotestified Contreras's DNA could have been transferred onto the Padres T-shirt from a prior wearing, from the laundry,or from the comingling of Contreras's clothes with 11 Rodriguez's clothes. A crimescene investigation expert agreed Contreras's DNA could have been inadvertently transferred onto the Padres T-shirt. A friend of Contreras's testified he was with her when the rapes occurred. She also testified he was wearinga plain T-shirt and shorts. He was not wearing a Padres T- shirt. The friend previously told a defense investigator she had been with Contreras on a different day. On cross-examination, she admitted she really did know the exact date she was with Contreras. DISCUSSION I Contreras's Confession A 1 _ Following his arrest, Contreras wastaken to police headquarters and placed in an interview room. An officer cameinto theinterview room and took down somebasic biographical information. After Contreras had been waiting in the room about an hour, two police detectives came into the roomto interview him. The detectives provided him with the admonitions required by Miranda v. Arizona (1966) 384 U.S. 436, 478 (Miranda), and Contreras agreed to speak with them. Contreras thought he was there because a classmate had accused him oftaking her wallet. The detectives told him they were not concerned about the wallet. Then, he thought he was there because a homosexual kid at school complained about him. The detectives explained they were investigating a crime involving twogirls. He denied any 12 knowledge ofthe crimes. However,he declinedto tell the detectives whom he waswith the night the crimes occurred. After Contreras claimed he could not remember the Miranda admonitions, the detectives gave them to him again and he again agreed to speak with the detectives. They told him they were looking into a sexual assault crime and intimated they had witness statements and evidence, including DNAevidence, inculpating him. He continued to deny any knowledgeof the crimes. He also continued to decline to state whom he was with when the crimes occurred, indicating he was not supposed to be with that person ‘becauseofa restraining order. Whenthe detectives assured him they were not concerned aboutthe restraining order, he told them he was at his aunt's house with his 16-year old cousin. Hesaid they left the house in the afternoon to get some food, then returned to the house and stayed in the garage listening to music and playing video gamesfor the remainderofthe evening. He subsequently admitted they left the garage long enough for his cousin to smoke some marijuana. At that point, about 30 minutesinto the interview, a region-wide power outage occurred, causing the lights to go outin the interview room andthe video camera to stop _ running. The detectives moved Contreras to a lobby area, next to a large window. Contreras sat in the lobby area for about 15 minutes. The detectives then moved him to large round table in a well-lighted office area, The interview continued for approximately two more hours. Although both detectives thought they were recording the secondpart ofthe interview, only one ofthem was. 13 Whenthe interview resumed, the detectives told Contreras they had spoken with his aunt and she toldthem she knew he hadraped the girls. Contreras disbelieved them. ‘They then told him his aunt had madethe statement to some family members, they had DNA evidence against him, and Rodriguez had already confessed. He continued to disbelieve them. They insisted they had DNA evidence and other forensic evidence, including his semen, linking him to the crimes. They implored him to tell them what happened and to ‘let them and his family know he was remorseful. They also told him some ofwhat Rodriguez had told them. He continued to deny either he or Rodriguez had anything to do with the crimes and demandedto hear the recording of Rodriguez's confession. Although they told him more ofwhathis aunt had said and more ofwhat Rodriguez had said, he adamantly denied the information was true. He intimated he was being framed. The detectives offered to show him a video recording of Rodriguez talking with them. They emphasized how remorseful Rodriguez was for the orimes. The detectives showed him a picture ofRodriguez, but he demandedto hear the video recording, suggesting the picture could have been of a doppelganger. He refused to believe Rodriguez could or would inculpate him. In addition, he said he had no reason to rape anyone because he "had a lot of chicks." The detectives reiterated Rodriguez had confessed and expressed remorse. They prodded him to do the same, but he continued to disbelieve them. He said he was not listening to them and he knew they were going to arrest him regardless ofwhat he told them because they thought he committed the crimes. 14 Switching tactics, the detectives began using empathy to encourage him to confess. Heresisted, remaining firm in his desire to see and hear the video recording of Rodriguez's confession before he told them anything. They played a snippetofthe recording for him, Hestarted confessing immediately afterwards. Hedeclined, however, to provide any specific details about the rapes until he heard more ofwhat Rodriguez had said. After much wrangling overthe propriety of showing him more ofthe recording, the detectives paraphrased bits of Rodriguez's statement. When Contreras expressed doubt they could keep him in custody if he did not tell them himselfwhat happened, the detectives told him they were not going to force him to talk and the DNA evidence would tell them everything they needed to know. He disputed the detectives’ claim ofhaving DNA evidence because he and Rodriguez "didn't finish." He then suggested the detectives had gotten the wrong guys and continued to decline to provide further details aboutthe crimes until he heard the recording of Rodriguez's confession. | The detectives switchedtactics once again and emphasized the impact ofthe crimes on the two victims andtheir need for closure. He then demanded to know how muchprison time he was facing. They indicated it was not their decision, but noted the crimes were serious and he was "probably not looking at days.” Hesaid he wasafraid he was goingto be killed in jail by the other inmates because of his crimes. The detectives acknowledged the other inmates were not going to treat him well, but they did not think the inmates would kill him. They also told him they would be taking him to a juvenile detention facility, not an adult detention facility. 15 The detectives returned to discussing the impact of the crimes on the victims. They told Contreras one ofthe victims was wearing a purity ring and whatit meant to her. During this part ofthe interview, the detective who had been audio recording the interviewleft the room to attend to something. About two minutesafter sheleft, the other detective noticed for the first time his audio recorder was off and he turnedit on. Whenthe recording resumed,the detective wasstill discussing the purity ring and the impact ofthe crimes on the victims. A short timelater, Contreras again unequivocally admitted his involvementin the crimes, but this time he provided corroborating details. 2 Contreras filed a pretrial motion to exclude evidence of his confession on the ground it was the involuntary product ofpsychological coercion. The court denied the motion, finding based on the totality of the circumstances the confession was not coerced. Onappeal, Contreras reiterates his contention his confession was involuntary and the court erred by allowing its admission in the prosecution's case-in-chief. B "'An involuntary confession is inadmissible under the due process clauses ofboth the Fourteenth Amendmentto the federal Constitution [citation] as well asarticle I, _sections 7 and 15 ofthe California Constitution [citation].' [Citation.] ‘Under both state and federal law, courts apply a "totality of circumstances"test to determine the voluntariness of a confession.’ [Citation.] '[C]oercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment.’ [Citation.] '[T]he question in each 16 case is whether the defendant's will was overborneat the time he confessed. [Citations.] If so, the confession cannot be deemed "the product of a rationalintellect and a free will." [Citation.] The burden is on the prosecution to show by a preponderanceofthe evidence that the statement was voluntary. [Citation.] 'When,as here, the interview was tape-recorded,the facts surrounding the giving ofthe statement are undisputed, and the appellate court may independently review the trial court's determination of voluntariness.'" (People v. Dowdell (2014) 227 Cal-App.4th 1388, 1400-1401.) "In evaluating the voluntariness of a statement, no single factoris dispositive. [Citation.] The question is whether the statement is the product of an’ "essentially free and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant considerations 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."'" (People v. Williams (2010) 49 Cal.4th 405, 436.) " In. assessing allegedly coercive police tactics, “rtyhe courts have prohibited only those psychological ploys which, underall the circumstances, are so coercive that they Hot netend to produce a statement that is both involuntary and unreliable. (Peoplev. Williams, supra, 49 Cal.4th at p. 436.) "It is well settled that law enforcement may confront a witness with what they know. [Citation.] They may also discuss any advantagesthat ' "naturally accrue" ' from making a truthful statement. [Citations.] They may explain the possible consequencesofthe failure to cooperate as longastheir 17 - explanation does not amountto a threat contingent upon the witness changing her story. [Citations.] They may even engagein deception aslongasit is not of a type ‘reasonably likely to produce an untrue statement,’ " (People v. Quiroz (2013) 215 Cal.App.4th 65, 79.) These are precisely the tactics employed by the police detectives in this case. The length ofthe interview was not remarkably long, consisting of approximately one hour waiting in an interview room and two and a half hours of questioning. Because ofthe region-wide power outage, most ofthe interview occurred around a table in a well- lighted office area, rather than in a sterile, windowless interview room. Although there is some indication in the record Contreras was distressed by the initial darknessresulting from the power outage, the police detectives did nothing to capitalize onthis distress. Instead, they quickly took him from the interview room to the lobby area and placed him nextto a large window. Whenthe interview resumed 15 minuteslater, there was no indication Contreras's responses were in any way affected by the experience. While Contreras was only 16 years old at the time ofthe interview and was having some schooling difficulties, his presentation during the interview wasintelligent and self- assured. He showednosusceptibility to any of the interview techniques he complains — about on appeal. He did not believe the police detectives had any DNAorother forensic evidence linking him to the crimes because he "didn't finish,” he did not believe his aunt spoke against him, and he wasnotparticularly moved by attempts to empathize with him or get him to empathize with the victims. Rather, he resisted all efforts to persuade him _ to talk about the crimesuntil the detectives finally, truthfully convinced him Rodriguez had already told them what happened. Accordingly, we cannot conclude under the 18 totality of the circumstances Contreras's confession was the unreliable, involuntary product of impermissible police tactics. I Defense Medical Expert A After the prosecution's medical experts testified, Contreras sought permission to introduce testimony from his own medical expert to establish the girls' injuries may have been consistent with consensual, first time sex rather than forcible rape. Thecourt excluded the testimony under Evidence Code section 352. The court found the evidence would be tangential, speculative, confusing and unduly time consuming because Contreras wasraising an alibi defense, not a consent defense and there wasno other evidence the girls had consented to the sexual activity. B Contreras contendsthe court erred in excluding the evidence because the court's decision deprived him of his right to impeach the prosecution's experts and cast doubt on whether thecharged crime involved the use of force. On appeal, we will not disturb a court's exercise of discretion to admit or exclude evidence under Evidence Code section 352 unless the court manifestly abusedits discretion and the abuse resulted ina — miscarriage ofjustice. (People v. Thomas (2011) 51 Cal.4th 449, 485.) Evidenceis relevantif it has "some 'tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action.’ (Evid. Code, § 210.)" (People v. Contreras (2013) 58 Cal.4th 123, 152.) Relevant evidence includes 19 | evidence related to a witness's credibility. (/bid.) Conversely, evidenceis collateral "if it has no logical bearing on any material, disputed issue." (/bid.) Evidence bearing on a witness's credibility maystill be collateral to a case. (Ibid.) "[T]hetrial court has wide latitude under state law to exclude evidence offered for impeachmentthat is collateral and has no relevanceto the action. [Citations.] This exercise of discretion necessarily encompasses a determination that the probative value of such evidenceis 'substantially outweighed'byits prejudicial, 'confusing,' or time- consuming nature. [Citations.] [J] Also, as long as the excluded evidence would not have produced a'" ‘significantly different impression’ "' of the witness's credibility, the confrontation clause and related constitutional guarantees do not limit the trial court's discretion in this regard." (People v. Contreras, supra, 58 Cal.4th at p. 152.) In this case, evidence the victim's injuries were consistent with consensual sex was irrelevant and collateral because Contreras was not presenting a consent defense. The evidence was also cumulative because twoofthe prosecution's medical experts specifically acknowledgedthe victims' injuries could have been caused by consensual Sex. Nonetheless, Contreras suggests the evidence wasstill admissible to counter the forcible element of the sexual assault-related crimes. However,in the context of this case, "force" and "consent" are inseparable concepts as "force" refers to the degree of physical force sufficient to support a finding the sexual activity was against the victim's will. (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1025; People v. Hale (2012) 204 Cal.App.4th 961, 978.) Moreover, it does not appear Contreras's expert would have 20 offered much helpful testimony onthis point. Based on Contreras's offer ofproof, the expert would havetestified the victims’ injuries were less severe and, by implication, less forceful than the prosecution's experts opined. However, there is no indication the expert would havetestified the victims were uninjured, and consequently, no force was used against them atall. We. therefore, conclude Contreras has not established the court abusedits discretion in excluding the evidence under Evidence Code section 352. Ul Third-Party Culpability Evidence A Contreras filed a pretrial motion for permission to introduce evidence Doe 2's father's semen was found in her underpants. Contreras soughtto introduce the evidence to show Doe1 and Doe2 fabricated their rape claims to hide the fact Doe 2 had had | sexual intercourse with her father. The court denied the motion, explaining, "Well, based on everything I know about this case ofwhat [Rodriguez] said happened and what your client said happened, I'm just—I'm notaccepting that. That's a weird fact, that there is semen in there, but I don't think that based on the—on whatI've readin the preliminary hearing transcript and based on howthis case was reported immediately after this—this incident was reported immediately after it happened, that the—both girls had dirt on them or were in—appeared to have been in the type of area that they had beenin, in a canyon area; gotten dirty, and which is consistent with their story, and I mean we have evidence that [Rodriguez's] DNA was found on—wasit both victimsor just one victim? 21 "[PROSECUTOR]: It was found on [Doe 1], but it was the DNA from both victims found on [Doe1]. "[THE COURT]: Okay. So there's DNA evidencethat corroborates that this was arape. This is not somesort offabrication to have [Doe 2's father] have sex with his daughter. LikeI said, there are other explanations for why his semen mightbe in her underwear. "But if—ook,let's assumethat even if he were having sex with her, which is illegal, that's a different case. That's not before me now. I'm talking about the case that involvesyourclient. And so that evidence—the fact that she may or may not have had sex with her dad on someprior occasionis not relevant to this case. Which I don't think that happened,certainly, andI'm notsaying that that happened, but I'm takingit to its extreme,I'm extrapolating out, and ifwe had a situation where somebodyelse's semen was found in her underwear and—let me back up. "If we had evidencethat she had had sex with other men before this, this wouldn't be relevant. And I don't think this is relevant in this case. So I'm not going to allow you to call [Doe 2's] father to explain why his semen wasin her underwear. AndI'm not going to allow you to mention that his semen was foundin her underwear. "I mean you're certainly free to say there was no—inyclient's semen wasnot found in her—myclient's DNA wasnot found or my client's DNA wasnot foundin her underwear. That's fair. But I'm not going to—onrelevance grounds andalso on 22 [Evidence Code section] 352 grounds,I'm not going to allow mention of [Doe 2's father's] semen beingin [Doe2's] underwear." B Contreras contends the court prejudicially erred in excluding the third-party culpability evidence. Third-party culpability evidence is admissible ifthe evidenceis capable ofraising a reasonable doubt as to defendant's guilt. (People v. Page (2008) 44 Cal.4th 1, 38; People v. Hall (1986) 41 Cal.3d 826, 833.) The evidence "' "mustlink the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer ofproof relating to such evidence, the court must decide whether the evidence couldraise a reasonable doubt as to defendant's guilt and whetherit is substantially more prejudicial than probative under Evidence Codesection 352."'" (People v. Edwards (2013) 57 Cal.4th 658, 729.) We review the court's ruling on the admissibility of third-party culpability evidence for abuse of discretion. (Peoplev. Prince (2007) 40 Cal.4th 1179, 1242.) | | As the court pointed out below,the semen evidence, while possibly evidence of another crime, did not directly or circumstantially link Doe 2's father to the crimesat issue in this case. The timing ofthe girls' report, the nature and recencyoftheir injuries, and the presence ofdirt and debris on their bodies established the crimes occurred in an open space area near a home where Doe1's family had gathered for a celebration. There is no evidence Doe 2's father attended the gathering or was in the areaat the time of the crimes. In addition, a confession and DNAevidenceestablished Rodriguez's involvement in the crimes and there is no evidence Doe 2's father knew Rodriguez, much 23 less arranged to participate in a group sexual encounter with him. We,therefore, conclude the third-party culpability evidence was not capable of raising a reasonable doubt as to Contreras's guilt and the court properly excluded it. Because the court did not abuse its discretion in excluding the evidence, the court's decision did not deprive Contreras of due process of law. (People v. Prince, supra, 40 Cal.4th at p. 1243 [absent an abuse of discretion, exclusion of third party culpability evidence does not impermissibly infringe on a defendant's federal constitutional rights].) IV Character Evidence A Aspart of his defense, Contreras intended to introduce testimony from three female classmates and two teachers showing he had always behaved respectfully toward his female classmates and hadneveracted out sexually ordemonstrated any sexual deviance with them. He also intended to introduceexpert witness testimony showing he lacked the commonpsychologicaltraits associated with men who rape women. The court excluded the evidence, finding the evidence was either irrelevant or had only slight probative value andits presentation would be unduly time consuming. Contreras subsequently filed a motion for reconsideration, which the court also denied. ‘Contreras contends the court's exclusion of the evidence deprived him of due process, a fair trial, and a right to present a defense as the evidence would haveraised a reasonable doubt as to his guilt. 24 B Character evidence is generally inadmissible to prove conduct. (Evid. Code, § 1101, subd. (a); People v.McAlpin (1991) 53 Cal.3d 1289, 1305 (McAlpin); Peoplev. McFarland (2000) 78 Cal.App.4th 489, 493.) However, in a criminal action, character evidence is admissible if the defendantoffers it to prove the defendant's conduct. (Evid. Code, § 1102, subd. (a); McAlpin, supra, at p. 1305; People v. McFarland, supra, at p. 494.) "This exception allows a criminal defendantto introduce evidence, either by opinion or reputation, of his character ora trait ofhis characterthatis ‘relevantto the charge made against him.' [Citation.] Such evidenceisrelevant if it is inconsistent with the offense charged—e.g., honesty, when the charge is theft—and hence may support an inference that the defendant is unlikely to have committed the offense. In appropriate cases, such circumstantial evidence ‘may be enoughto raise a reasonable doubt in the mindofthe trier of fact concerning the defendant's guilt.'" (dcAlpin, at p. 1305.) Lay and opinion evidence of a defendant's lack of sexual deviancefalls within this exception. (d., at pp. 1305, 1309; People v. Stoll (1989) 49 Cal.3d 1136, 1152-1153.) Nonetheless, a court has the discretion to exclude defense character evidence"if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of timeor (b) create substantial danger ofundue prejudice, of confusing the issues, or ofmisleading the jury." (Evid. Code, § 352; People v. Stoll, supra, 49 Cal.3d at p. 1140; McAlpin, supra, 53 Cal.3d at p. 1310, fn. 15.) We will not disturb a court's exerciseof its discretion to exclude evidence under Evidence Code section 352 " 'except on a showingthat the court exercised its discretion in an 25 arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage of justice.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 828.) In this case, the testimony of the lay witnesses would have had little to no probativevalue because the setting in which the witnesses knew and interacted with Contreras bore no resemblance to the setting in which the rapes occurred. While the testimony might have established Contreras would never act inappropriately toward a female classmate, especially while in a classroom monitored by a teacher, the testimony had virtually no tendency to establish he would never have committed the rapes at issue in this case. Accordingly, we cannot conclude the court's decision to exclude this evidence, no matter how brief its presentation might have been, was arbitrary, capricious or patently absurd. Although a closer question, we also cannot conclude exclusion ofthe expert witness testimony was arbitrary, capricious or patently absurd. The experts’ testimony would have consumeda day or more oftrial as counsel would have examined and cross- examined the experts on their qualifications, their methodologies and their opinions,the latter of which werereflected in reports totaling 25 pages. Conversely, the experts’ testimony, while not irrelevant, was not especially probative of Contreras' guilt or innocence. Both experts opined Contreras did not meet the criteria for a paraphilia diagnosis. However,their opinions were largely based on Contreras's self-reported information about his sexual history andinterests, and both experts acknowledged potential limits on the reliability and validity of the information. 26 Even assuming the information wasreliable and valid, neither expert equated the presence or absenceofa paraphilia, or any other particular characteristic, with a juvenile's likelihood or unlikelihood of committing a rape. In fact, according to one of the experts, "Research has demonstrated that, as a whole, juvenile sex offenders are a heterogeneous group with numerousdifferences in their backgrounds and functioning." Nonetheless, the expert noted the characteristics correlated with juveniles who commit sex offenses "include commencementof sexual offending by age 13 or 14, high instances of social isolation and inadequate social skills, poor peer relationships, history of physical/sexual abuse, academic and learning difficulties, behavioral and emotional problems, psychiatric disorders, and family dysfunction." While Contreras possesses many ofthese characteristics, the expert was careful to point out "correlation does not indicate causation, and it cannot be inferred that the presence of any of these characteristics causes one to sexually offend." Thus, had the experts testified, their testimony would have consumed oneor more days of an already lengthy trial and the jury would have learned nothing more than Contreras does not meet the criteria for a paraphilia diagnosis, but he possesses some characteristics correlated with juvenile sex offenders and neither fact necessarily makesit moreorless likely he committed the rapes at issue in this case. Under these circumstances, we discern no abuse ofdiscretion, or constitutional violation, in the court's decision to exclude the evidence. (See People v. Cornwell (2005) 37 Cal.4th 50, 82 ["a state court's application ofordinary rules of evidence—includingthe rule stated in 27 Evidence Code section 352—-generally does not infringe upon"the constitutional right to offer a defense]; accord, People v. Fuiava (2012) 53 Cal.4th 622, 665-666.) | Vv Verdicts A After the court clerk read the Contreras jury's verdicts, the court inquired of the jury collectively, "[W]Jere these and are these your verdicts?" In unison,they answered, "Yes." Defense counsel declined to have the jurors polled individually. Theparties later discovered the verdict form for count 4 was not signed; the first page ofthe verdict form for count 7 was signed, but the second page wasnotsigned; and | the verdict form for count 10 was signed, but it was stapled.to the verdict form for a lesser included offense, which was not signed. Contreras moved for dismissal of these counts, The court denied the motion, finding the defects were minor and did not affect the validity of the verdicts, as it was clear from the verdict forms as a wholethe jury intended to convict Contreras ofthese counts. B Contreras contends the defects in the verdicts for counts 4, 7 and 10 require us to reverse his convictions for these counts. We disagree. | A court may disregard a technical defect in a verdict form if the jury's intent to convict of the specified offense is unmistakably clear and the defect did not prejudice the — defendant's substantial rights. (People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) A verdictis insufficient only if it is susceptible to a construction other than guilty of the crime charged. (People v. Jones (1997) 58 Cal.App.4th 693, 711.) In this case, the record shows the verdict form for count 10 was both completed and signed. The fact the verdict form for count 10 was mistakenly affixed to a blank verdict form for a lesser included offense does notby itself cast doubt on the jury's intent to convict Contreras for count 10. The lack of signatures on the verdict form for count 4 ‘and on the second page of the verdict form for count7 also does not cast doubt on the jury's intent to convict Contreras for these counts as the verdict forms were otherwise completed in favor of a conviction. Moreover, the law does not require a jury's verdict to be in writing, much less signed. (People v. Lankford (1976) 55 Cal.App.3d 203, 211, disapproved on another point in People v. Collins (1976) 17 Cal.3d 687, 694, fn. 4; People v. Mestas (1967) 253 Cal.App.2d 780, 786-187.) It is the oral declaration of the jurors, not the submission of written verdicts, which constitutes the return of the verdict. (People v. Traugott (2010) - 184 Cal.App.4th 492, 500; People v. Green (1995) 31 Cal.App.4th 1001, 1009.) As Contreras's jury orally and unanimously declared guilty verdicts on counts 4, 7, and 10, we concludethe verdicts for these counts were sufficient and Contreras's substantial rights were not prejudiced by any technical defects in the verdict forms. 29 Vi Juror Information A After the jury's verdict and before filing a new trial motion, Contreras filed an application for an order releasing jurors’ personal identifying information. The application was based on the declaration of the jury foreperson. In the declaration, the foreperson stated she wanted to vote to acquit Contreras, but felt pressured to speed ‘through deliberations and vote to convict him. She also stated she was concerned about the deliberation process as most of the jurors seemed to have decidedat the outset Contreras was guilty. Although she insisted the jury read and discuss each charge, she claimed most of the jurors wanted to bypass the discussion and vote immediately after each charge was read. She and someotherjurors wanted sometestimony read back and wanted to review some other evidence in depth. Other jurors believed these steps were unnecessary. According to her, she had to fight to get the jury to review the evidence and deliberate. She wasalso annoyed twojurors had checkedtheir cell phones during deliberations. She stated she ultimately voted to convict Contreras because she wastired of fighting with the other jurors and she did not want the matter to haveto be retried. She felt most of the jurors did not understandtheir role, the atmosphere in the jury room discouraged questions, and she never wanted to be on a jury again. Finally, she expressed concern Contreras did not receive a fair trial before a jury of his peers because noneofthe jurors were Hispanicand all ofthem wereat least 15 years.older than him. 30 After going through each paragraph of the declaration, the court denied the motion, finding Contreras had not shown good causefor disclosure of the information. Contreras contends we mustreverse the judgment becausethe court erred in denying the motion. B "Under Code of Civil Procedure section 237, in a criminal case, the trial jurors’ ‘personal juror identifying information'—definedas their names, addresses, and telephone numbers—mustbe sealed after their verdictis recorded. (Code Civ. Proc., § 237, subd. (a)(2).) However,'[a]ny person may petition the court for access to these records. Thepetition shall besupported by a declaration that includes factssufficientto establish good cause for the release of the juror's personal identifying information.’ (Code Civ. Proc., § 237, subd. (b); see Code Civ. Proc., § 206, subd. (g).) | “Tf thetrial court finds that the moving party has made a primafacie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. (Code Civ. Proc., § 237, subd. (6).) Thetrial jurors are entitled to notice, an opportunity to object to disclosure, and an opportunity to appear. (Code Civ. Proc., § 237, subd. (c).) [§] Ifnone ofthe jurors object, the trial court must grant disclosure. However, if a juror is unwilling to be contacted, the trial court must deny disclosure. (Code Civ. Proc., § 237, subd. (d).)" (People v. Johnson (2013) 222 Cal.App.4th 486, 492.) We review the court's order granting or denying disclosure for abuse ofdiscretion. (bid.) 31 To establish good causefor the release of a juror's personal identifying information, the moving party must show: (1) there is a reasonable beliefjury misconduct occurred; (2) diligent efforts were made to contactthe jurors through other means; and (3) further investigation is necessary to provide the court with adequate information to rule on a newtrial motion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) Contreras has not metthe first prong ofthistest. _ As explained in more detail in part VII.B below,the jury foreperson's declaration consisted largely of inadmissible hearsay and statements concerning the jury's subjective mental processes. To the extent the declaration contained admissible evidence, the declaration wasnot sufficient to support a reasonable belief the jury committed misconduct by refusing to deliberate. Thisis particularly true given the foreperson's own. _ acknowledgmentsheinsisted deliberations occur, the fact it took the jury approximately three and a half daysto reach their verdicts, and the existence ofjury notes unequivocally showing the jurors reviewed evidence and instructions. Consequently, we conclude Contreras hasnotestablished the court abused its discretion in denying disclosure ofthe jurors' personalidentifying information to him. | Vit New Trial Motion A | After the Contreras jury had deliberated a little over a day, the jury foreperson told the bailiff she wantedto talk with the judge andsent the court a note, stating, "My-feeling is that the jury has madeup[its] mind without having a [thorough] discussion. I have 32 doubt on Ex. 107." The court responded to the jury by directing it to refer to jury instruction No. 3550.5 Two and a half days later, the jury returnedits verdicts. 5 As given by the court in this case, the instruction informed the jury: "When you go to the jury room,the first thing you should do is choose a foreperson. The foreperson should seeto it that your discussions are carried on in an organized way and that everyonehas an opportunity to be heard. "It is your duty to talk with one another andto deliberate in the jury room. You should try to agree on a verdict if you can. Each ofyou must decide the case for yourself, but only after you have discussed the evidence with the other jurors. "Do not hesitate to change your mind ifyou become convincedthat you're wrong. . But do not change your mindjust because other jurors disagree with you. Keep an open mind and openly exchange your thoughts and ideas aboutthis case. Stating your opiniontoo strongly at the beginning or immediately announcing how youplan to vote may interfere with an open discussion. "Please treat oneanother courteously. Yourrole is to be an impartial judge of the facts, not to act as an advocate for oneside orthe other, "As I told you at the beginning ofthetrial, do not talk about this case or about any of the people or any subject involved in it with anyone, including but notlimited to your spouse or other family membersorfriends, spiritual leaders or advisorsor therapists. "You must discuss the case only in the jury room and only whenall jurors are present. Do notdiscussthe deliberations with anyone. Do not communicate using the internet, cell phone or any other social media or any other device during your deliberations. . . "Duringthetrial, several items were received into evidence as exhibits. You may examine what exhibits you think will help you in your deliberations. These exhibits will be sent to you in the jury room when you beginto deliberate. "If you need to communicate with me while you're deliberating, senda note through the bailiff signed by the foreperson or by one or more members ofthe jury. [4] To have a completerecordofthetrial, it is important that you not communicate with me except in [a] written note. [f] Ifyou have questions, J will talk with the attorneys before I answer them. So it.may take some time. You should continue yourdeliberations while you wait for an answer. I will answer any questions in writing or orally here in open court. [{] Do not reveal to me or anyone else how the vote stands onthe question of guilt or issues in the case, unless I ask you to do so. "Your verdict on each count and any special findings must be unanimous. This meansthat to return a verdict, all ofyou must agree to it. [[] Do not reach a decision by a flip of the coin [or] any other similar act. [{] ... [§] “It is not my role to tell you what yourverdict should be. Do not take anythingthat I said or did duringthetrial as an indication ofwhat I think aboutthe facts, the witnesses or what your verdict should be. 33 Contreras subsequently filed a motion for new trial based upon juror misconduct. The motion was supported by the same declaration from the jury foreperson described in part VILA, ante. The court denied the motion,finding it could not consider many ofthe foreperson's statements because they were either based on hearsay or delvedinto the jury's thought processes. The court further found the statements it could consider did not demonstrate juror misconduct. Contreras contends the court erred in denying his motion. 5 . A court may grant a new trial when the jury has "beenguilty of any misconduct by which a fair and due consideration of the case has been prevented." (§ 1181, item 3; _ People v. Collins (2010) 49 Cal.4th 175, 242.) "' "When a party seeks a newtrial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whetherthe affidavits supporting the motion are admissible. [Citation.] Ifthe ‘evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial."'" (People v. Vallejo (2013) 214 Cal.App.4th 1033, | 1042.) " "Because a ruling on a motion for a newtrial rests so completely within thetrial a manifest and unmistakable rucourt's discretion, we will not disturb it on appeal absent " abuse ofdiscretion."'"'" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1247-1248.) "You must reach your verdict without any consideration ofpunishment. "You will be given verdict forms. As soon as all jurors have agreed on a verdict, the foreperson must date and sign the appropriate verdict forms and notify the bailiff. [9] Ifyou are able to reach a unanimousdecision on only one or some—oronly someofthe charges,fill in those verdict formsonly and notify the bailiff. Return any unsigned verdict forms." . 34 Here, as previously noted, many ofthe statements in the jury foreperson's declaration were inadmissible hearsay. "Hearsay evidence offered in support of a new trial motion that is based on alleged jury misconductordinarily is insufficient to establish’ an abuse ofdiscretion in either denying the motion or declining to conduct an evidentiary hearing." (People v.Manibusan (2013) 58 Cal.4th 40, 55.) Some ofthe statements were also inadmissible because they concerned the jury foreperson's and otherjurors’ subjective mental processes. "[A] court may not consider evidence of a juror's subjective process in deciding whether to granta new trial based on purported juror misconduct." (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1250,fn. 27, citing Evid. Code, § 1150; People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.) To the extent the declaration contained admissible evidence, the declaration failed to show thejurors refused to deliberate. "'A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examplesofrefusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainderofthe jury.'" (People v. Leonard (2007) 40 Cal.4th 1370, 1410-1411.) Although the jury foreperson's declaration stated some jurors appeared to be persuaded of Contreras's guilt from the outset of deliberations, the declaration did not contain any objectively verifiable facts indicating any juror refused to participate in deliberations. To the contrary, the declaration stated the jury, at the jury foreperson's insistence, reviewed 35 each ofthe charges andthe related evidence before reaching their verdicts. The review took multiple days and involved at least two read backs oftestimony,indicating it was not perfunctory. Accordingly, we concludethe court did not abuseits discretion in finding Contreras had not made a sufficient showing ofjuror misconduct to warrant a newtrial. (People v. Thompson (2010) 49 Cal.4th 79, 141.) Vill Cumulative Error Contreras contends the accumulation of the aboveerrors deprived him ofdue process of Jaw and, consequently, requires us to reverse his conviction. Werejectthis argument as "[w]e have foundno error that, either alone or in conjunction with others, prejudiced[him]." (People v. Williams (2013) 56 Cal.4th 165, 201.) | Ix | Sentences A Atthe time the court sentenced Contreras and Rodriguez,the court recognized their status as juvenile nonhomicide offenders required it to consider their age andother mitigating circumstances in sentencing them. After considering the mitigating circumstances along with the circumstancesofthe crimes and the impact ofthe crimes on the victims, the court sentenced Rodriguez to 50 years to life. The court explained, "I read and consideredall ofthe information that has been provided to me about your background, your history, and] agree that's tragic, but I have to weigh that against the horrible scars that you haveleft on these two girls. ... I can't say I am going to 36 sentence you 25 to life on one victim and then makeit all concurrent because [to] my thinking, you don't get a free victim." Whenthe court sentenced Contreras to 50 yearsto life plus eight years, the court likewise declined to give him "a free victim." It also viewed Contreras's prospects for rehabilitation more gravely, noting, "If you lookat all of [Contreras's] psychology and you look at kind of where he came from, he likes to be the guy that calls the shots. He likes to be the guy in charge. He was definitely the guy in charge in this particular event. It was brutal and callous and ruthless. I think that he, for whatever reason, has some brutality and callousness and ruthlessness. "TRodriguez] had no prior record either yet he admitted he was involvedin this whole event. ... [Contreras] is not—he's not somebodythat is an impressionable, young little 16-year old. When you watch him talk to the police, he thinks he's smarter than the police, and when they are interviewing him,he's trying to game them,andhe's insisting that they don't know whatthey are talking about. He's trying to be in control. Then finally, eventually he admits that he was involved. Then,ofcourse, he turned around and deniedthat. "So somebody with that kind ofpsychology is not somebody I feel confidentis going to rehabilitate, change, and becomea different person regardless ofhis brain development. I think his brain is developed into whohe is and who he was demonstrated. on that whole event where heraped those twogirls." 37 B Rodriguez and Contreras both contend their sentences violate the constitutional prohibition against cruej and unusual punishment. Based on the current state ofthe law applicable to juvenile nonhomicide offenders, we are compelled to agree. "The Righth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This constitutional provision ‘guarantees individuals the right not to be subjected to excessive sanctions.' [Citation.] This right ‘flows from the basic " ‘precept ofjustice that punishment for crime should be graduated and proportionedto[the] offense.’ "'" (People v, Gutierrez (2014) 58 Cal.4th 1354, 1374 (Gutierrez).) | The United States Supreme Court has applied this constitutional provision to categorically ban sentences of life without the possibility ofparole for juveniles who commit nonhomicide offenses. (Graham, supra, 560 U.S. 48 at pp. 74-75.) The Court explained that, while a juvenile who commits a nonhomicide offense need not be guaranteed eventual freedom, the juvenile must have "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Id. at p. 75.) Theprincipal rationale for the ban is " 'that children are constitutionally different from adults for purposes of sentencing' in three important ways. [Citation.] ‘First, | children have a" ‘Tack of maturity and an underdeveloped sense of responsibility,’ " leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children "are more vulnerable . . . to negative influences and outside pressures," including from their family and peers; theyhave limited "contro[l] over their own environment" 38 and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] Andthird, a child's character is not as "well formed"as an adult's; his traits are "less fixed" and his actionsless likely to be "evidence ofirretrievabl[e] deprav[ity]." [Citation.] [Citation.] For these reasons, ‘juveniles have diminishedculpability and greater prospects for reform,’ and are thus ' "less deserving of the most severe punishments."'" (Gutierrez, supra, 58 Cal.4th at p. 1375, citing Miller v. Alabama (2012) 567 U.S.[132 S.Ct. 2455, 2464] (Miller).) In addition, the Court has concluded the penological goals ofretribution, deterrence, incapacitation, and rehabilitation do not provide adequate justification for sentencesoflife withoutparole for juvenile nonhomicide offenders. (Graham,supra, 560 U.S.at p. 71.) " "Because " [t]he heart of the retribution rationale’ "relates to an offender's blameworthiness," 'the case for retribution is not as strong with a minoras with an adult.'" [Citations.] Nor can deterrence do the work in this context, because " ‘the same characteristics that render juveniles less culpable than adults' "their immaturity, recklessness, and impetuosity—makethem less likely to consider potential punishment. [Citation Similarly, incapacitation could not support the life-without- parole sentence in Graham: Deciding that a "juvenile offender forever will be a danger to society" would require "mak[ing] ajudgmentthat[he] is incorrigible"—but " '‘incorrigibility is inconsistent with youth.'" [Citation.] And for the same reason, rehabilitation could notjustify that sentence. Life without parole "forswears altogether the rehabilitative ideal.” [Citation.] It reflects "an irrevocable judgment about [an wt offender's] value andplace in society," at odds with a child's capacity for change. 39 (Gutierrez, supra, 58 Cal.4th atp. 1376, citing Miller, supra, 567US.at p.__‘([132 S.Ct. at p. 2465]; Graham, supra, 560 U:S.at p. 79.) The California Supreme Court has interpreted the categorical ban established in Graham to also apply to aggregate sentences which are the functional equivalentof life withoutthe possibility ofparole because the defendant's first parole eligibility date falls outside the defendant's natural life expectancy.6 (Gutierrez, supra, 58 Cal.4th at p. 1378; . Caballero, supra, 55 Cal.4th at p. 268.) Although Rodriguez's and Contreras's first parole eligibility date theoretically falls within their expected lifetimes, they contend their sentences nonetheless violate the ban because their sentences deny them a meaningful opportunity for release on parole. The United States Supreme Court has not provided any guidance on what constitutes a meaningful opportunity for parole and, instead, hasleft the matter for the states to addressin thefirst instance. (Graham, supra, 560 U.S. at p. 75.) The California Supreme Court also has not provided any guidance; however, it is currently reviewing the matter. (In re Alatriste (2013) 220 Cal_App.4th 1232, review granted Feb. 19, 2014, $214652, consolidated with Jn re Bonilla, review granted Feb. 19, 2014, $214960.) Pending further guidance, we must consider the constitutional propriety of Rodriguez's and Contreras's sentencesin light of the two interrelated requirements 6 — In this context, "the term ‘life’ expectancy’ means the normallife expectancy of a healthy person of defendant's age and genderliving in the United States." (People v. Caballero (2012) 55 Cal.4th 262, 267, fn. 3 (Caballero).) In their sentencing statement below, the People provided a life expectancy table showing the average life expectancy of a Hispanic male is approximately 78 years. 40 underpinning Graham's holding: (1) a state must give a juvenile nonhomicide offendera realistic chance to demonstrate maturity and reform, and (2) a state may not decideat the time of sentencing a juvenile nonhomicide offenderis "irredeemable" and "never will be fit to reenter society." (Graham, supra, 560 U.S.at pp 75, 79, 82.) Rodriguez's and Contreras's sentences do not meeteither requirement. Even under an optimistic projection oftheir life expectancies, the sentences preclude any possibility of parole until they are near the end oftheir lifetimes as the parties agree Rodriguez will be 6 and Contreras will be 74 whentheyare first eligible for parole. This falls short of giving them the realistic chance for release contemplated by Graham. Instead, the sentences tend to reflect a judgment Rodriguez and Contreras are irretrievably incorrigible. While this judgment may ultimately prove to be correct,it is not one Graham permits to be madeat the outset. Accordingly, we concludethe sentences violate the Eighth Amendmentunderthe standards articulated in Graham.! Our conclusionis not intended to diminish the severity of Rodriguez and Contreras's crimes or the lasting impact the crimeswill have on the victims. Whatever their final sentences, Rodriguez and Contreras will need to do more than simply bide their time in prison to demonstrate parole suitability. The Board ofParole Hearings (the _ Board) considers a wide range of information in determining whethera prisoneris suitable for parole. (Cal. Code Regs., tit. 15, § 2281.) The record before usindicates Rodriguez and Contreras have much work ahead ofthem ifthey hope to one day 7 Given our conclusion, we need not address Rodriguez's alternate contention his sentenceis grossly disproportionate to his culpability. 4] persuade the Board they no longer present a current danger to society and should be released on parole. Our conclusion is also not intended to discount the lower court's understandable desire to avoida sentence that would appear to give Rodriguez and Contreras "a free victim." We note any indeterminate sentence the court may choose to impose on remand will account for the existence of multiple victims as the existence ofmultiple victimsis a factor in determining parole suitability. (Cal. Code Regs., tit. 15, §2281, subd. (c)(1)(A).) | DISPOSITION The sentences are reversed and the matter is remanded for resentencing. The sentencing court is directed to consider all mitigating circumstances attendant in the appellants’ crimes and lives and imposea time when they mayseek parole from the parole board consistent with the holding in Graham, supra, 560 U.S.at p. 82. (Caballero, supra, 55 Cal.Ath at pp. 268-269.) The judgments are affirmedin all other respects. McCONNELL,P.J. I CONCUR: McDONALD,J. O'ROURKE,J. I concurin the result as to part IX. In all otherrespects,I concur with the balance of the opinion. O'ROURKE,J. 42 DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Leonel Contreras,et al No.: D063428 T declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 yearsof age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On February 19, 2015, I served the attached PETITION FOR REVIEW byplacinga true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney Generalat 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186- 5266, addressed as follows: , NancyJ. King, Esq. Attorney at Law The Honorable Peter C. Deddeh,Judge 1901 First Avenue, Suite 138 San Diego County Superior Court _ San Diego, CA 92101 , Main Courthouse Attorney for Appellant Contreras 220 West Broadway San Diego, CA 92101 Daniel J. Kessler Attorney at Law California Court of Appeal Kessler & Seecof, LLP 750 B. Street #300 2254MooreStreet, Suite 201 ~ San Diego, CA 92101 San Diego, CA 92110 Attorney for Appellant Rodriguez San Diego District Attorney's Office District Attorney San Diego County Hall of Justice . 330 West Broadway; Ste 1300 San Diego, CA 92101-3826 I declare under. penalty of perjury under the lawsofthe State of California the foregoing is true and correct andthat this declaration was executed on February 19, 2015, at San Diego, California. . Carole McGraw (3 Lay fl Jbl alte ¢ Declarant Signature $D2013805420 - 71032549.doc