v.
Adam CORNEJO, and
[*1459] Deandre Ellison was shot to death as he pulled into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also in Ellison's car. Before the car came to a stop in the driveway, an SUV driven by Jesse Cornejo slowly drove past Ellison's house; the SUV's front and backseat passengers, Adam Cornejo and Isaac Vasquez, opened fire on Ellison's car.[1] Neal managed to return fire with Ellison's gun before the SUV drove away. About [*693] 20 bullets were exchanged between the vehicles. Bullets also struck Ellison's house. Ellison was the [*1460] only casualty. After crashing the SUV while being pursued by law enforcement, Adam, Jesse, and Isaac were taken into custody a short time later. Each was a Norteño gang member. Isaac was 16 years old with a developmental disability; Adam and Jesse were 17 and 18 years old, respectively.
Adam, Jesse, and Isaac were tried together and convicted by jury of one count of second-degree murder (Pen.Code, § 187, Count One),[2] four counts of attempted murder (§§ 664/187, Counts Two, Three, Four, and Five), and one count of shooting at an inhabited dwelling (§ 246, Count Six). Jesse was also convicted of one count of driving in willful or wanton disregard for safety while fleeing from a pursuing peace officer. (Veh.Code, § 2800.2, subd. (a), Count Seven.) With respect to the murder, the jury found the offense was committed by means of shooting a firearm from a motor vehicle at another person outside the vehicle with the intent to inflict great bodily injury. (§ 190, subd. (d).) The jury also found the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b).) Various firearm enhancement allegations were also found to be true. (§§ 12022.53, subds. (c), (d), (e)(1), 12022.5, subd. (a).) The trial court sentenced Adam and Isaac to serve an aggregate indeterminate prison term of 120 years to life plus a consecutive determinate term of 9 years 4 months. Jesse was sentenced to serve the same indeterminate term of 120 years to life plus a consecutive determinate term of 10 years.
Defendants appeal. The following contentions are made by each defendant: (1) the evidence was insufficient to establish the "criminal street gang" requirement of the gang enhancements because there is no evidence Sacramento Norteño subsets are part of the larger Norteño organization; (2) the trial court prejudicially erred and violated defendants' constitutional right of confrontation by admitting expert gang testimony concerning the basis for the expert's conclusions they were active Norteño gang members; (3) the trial court prejudicially erred by allowing expert testimony that defendants probably fired first because Ellison would not have wanted to attract trouble to his home; (4) the trial court prejudicially erred and violated defendants' constitutional right to due process by excluding evidence they claim indicated Ellison had returned to a gang lifestyle, which they argue was critical to their self-defense claim; (5) the trial court prejudicially erred and further violated defendants' constitutional rights by providing the jury with a different instruction on causation than that contained in bracketed portions of CALCRIM No. 520; and (6) their respective abstracts of judgment must be modified to reflect the victim restitution order is a joint and several obligation. Adam and Isaac also assert: (7) the trial court's imposition of a sentence [*1461] that is the functional equivalent of life without parole (LWOP) amounts to cruel and unusual punishment. Finally, Isaac contends: (8) the trial court prejudicially erred and violated his constitutional rights by allowing one of the detectives in the case to convey a misleading portion of Isaac's statement to police; and (9) the cumulative effect of the foregoing assertions of error requires reversal.
Following oral argument, our Supreme Court decided [*694] People v. Prunty (2015)
We disagree with the remaining contentions raised by all defendants, except for the conceded point that their respective abstracts of judgment should reflect the victim restitution order is a joint and several obligation. Specifically, the challenged expert "basis" evidence did not violate defendants' constitutional right of confrontation. Nor did the trial court err by allowing expert testimony that defendants probably fired first because Ellison would not have wanted to attract trouble to his home. Defendants' contention that the trial court prejudicially erred and violated their constitutional right to due process by excluding evidence of Ellison's return to an active gang lifestyle is forfeited. Nor were their respective counsel ineffective for failing to preserve the issue for review. We also reject defendants' claim the trial court prejudicially erred and violated their constitutional rights by providing the jury with a different instruction on causation than that contained in a bracketed portion of CALCRIM No. 520. While the instruction provided was erroneous in two respects, the error was harmless.
We do, however, agree with the Eighth Amendment challenge brought by both Adam and Isaac. The record is unclear as to whether the trial court properly took into consideration all mitigating circumstances attendant in each juvenile offender's life, including but not limited to his chronological age at the time of the crime and his physical and mental development, before imposing a functionally equivalent LWOP sentence. In light of the importance of this constitutional right, and uncertainty as to whether the trial court appropriately took such mitigating circumstances into account, we conclude the appropriate remedy is to remand for a new sentencing hearing as to Adam and Isaac. Finally, the remaining claims brought by Isaac alone also fail. The [*1462] trial court did not prejudicially err or violate his constitutional rights by allowing one of the detectives to convey a portion of his statement to police. Nor does the cumulative effect of the foregoing assertions of error require reversal.
Accordingly, with respect to Adam and Isaac, we reverse the gang enhancement and vicarious firearm enhancement findings, otherwise affirm their convictions and enhancement findings, and remand the matter to the trial court for resentencing; following the new sentencing hearing, their respective abstracts of judgment shall reflect that any victim restitution order imposed by the trial court is a joint and several obligation. With respect to Jesse, we reverse the gang enhancement and vicarious firearm enhancement findings, modify the judgment to strike these enhancements, and affirm the modified judgment. The trial court is directed to amend Jesse's abstract of judgment to reflect the modifications and to indicate the victim restitution order already imposed is a joint and several obligation.
FACTS
On the afternoon of January 19, 2011, Ellison left his home to go to the store.
[*695] He drove his wife's Ford Taurus and brought along three other men, including Neal, who sat in the back of the car directly behind Ellison. On the way to the store, Ellison picked up another man, who was walking to Ellison's house, and then continued on to the store. Ellison, a former gang member, had a .40-caliber handgun in the car's center console. According to his wife, he bought the gun for protection. Having recently testified against another gang member in exchange for being released from jail, Ellison had received threats and was concerned about retaliation for being a "snitch." Neal was aware of the threats. He was also aware Ellison had a gun in the center console.
When Ellison and his companions returned from the store, they turned onto Ellison's street and noticed two vehicles approaching from the opposite direction. The first vehicle was a small car. The second vehicle was a Ford Explorer containing the defendants in this case. In order to pull into his driveway, which was on the left side of the street, Ellison turned between the two vehicles. Around this time, Neal noticed the occupants of the Explorer were giving them "hard looks" and said: "[W]ho is them muggin' us?" Before Ellison was able to put the car in park, Neal opened his door and started to step out to "figure out who was in them cars." As he did so, the Explorer stopped in front of Ellison's house and the front and backseat passengers, Adam and Isaac, opened fire with semi-automatic handguns.
Neal managed to "jump back in the car" before the first shots were fired. Multiple bullets struck the Taurus, shattering the rear window. When someone [*1463] in the car said, "shoot back," Neal grabbed Ellison's handgun from the center console, fired one round through the "busted out" back window, and then got out of the car and continued firing at the Explorer until he "couldn't shoot no more." Neal fired at least six rounds. However, it does not appear any of Neal's shots struck the Explorer. Shots fired by Adam and Isaac were far more accurate. Combined, they fired at least 14 rounds, hitting both the Taurus and Ellison's home multiple times. One bullet struck Ellison in the upper back as he leaned forward in the driver's seat, traveled through his neck and head, and lodged in his brain. Death from this gunshot wound came within a matter of minutes.
After Adam and Isaac finished firing upon Ellison and his companions, the Explorer drove away. The Taurus's remaining passengers got out of the car. Neal "took off running" with Ellison's gun because he was afraid of being arrested for being a felon in possession of a firearm. Ellison's wife, Jettiemarie Boyd, who witnessed the shooting from outside her neighbor's home, ran to her husband. During the shooting, the Taurus had continued forward into the garage door. The tires were still spinning when Boyd reached the car. She put the car in park, removed the keys from the ignition, and tended to her husband. Boyd's mother and various neighbors also came out to check on Ellison, who was "slumped over the steering wheel" with "blood ... coming out of his neck, running down his chest." He died before law enforcement and medical personnel arrived on the scene.
A description of the Explorer and the shooters was given to police at the scene and relayed over the radio to nearby patrol cars. The vehicle was located a short time later, not far from the crime scene. When a traffic stop was initiated, Jesse led officers on a high-speed chase, reaching speeds of 85 miles per hour, before crashing the Explorer in an intersection. Defendants [*696] then attempted to flee on foot; each was taken into custody. During the chase, two handguns were thrown from the Explorer. Police recovered a 10-millimeter handgun along the chase route. Eight 10-millimeter casings found at the scene appeared to have been fired by this gun. A magazine for a 9-millimeter handgun and several unfired 9-millimeter rounds were also recovered along the chase route. The gun associated with the magazine and bullets was not recovered. However, Isaac admitted to police that a 9-millimeter handgun was also thrown from the vehicle and two 9-millimeter casings found in the Explorer appeared to have been fired by the same gun that fired six such casings found at the scene of the crime. Gunshot residue tests also corroborated the fact that Adam and Isaac were the shooters, while Jesse drove the Explorer.
Finally, the prosecution provided testimony from an expert on criminal street gangs, Detective John Sample, who testified Jesse, Adam, and Isaac [*1464] were each active members of the Norteño street gang, and a hypothetical shooting based on the facts of this case would have been committed in association with or for the benefit of the gang. We provide a more detailed description of Detective Sample's testimony in the discussion that follows.
DISCUSSION
We first address those contentions asserted by all three defendants. Then, we address one claim raised by both Adam and Isaac. Finally, we address Isaac's remaining contentions.
ALL DEFENDANTS
I
Sufficiency of the Gang Evidence
Defendants contend the evidence was insufficient to support the jury's finding they committed the charged offenses "for the benefit of, at the direction of, or in association with any criminal street gang" (§ 186.22, subd. (b)) because the required predicate offenses the gang expert testified about were committed by members of Norteño subsets that were different than the subsets to which defendants belonged and there was no substantial evidence linking these subsets to each other or to the greater Norteño gang. We agree.
Section 186.22, subdivision (b), increases punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
"To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002)
[*1465] [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]" ( [*697] Duran, supra, 97 Cal.App.4th at p. 1457,
To satisfy these "criminal street gang" requirements, Detective Sample testified there were about 1,500 Norteño gang members in the Sacramento area. He had personally contacted about 150 such gang members. The detective testified their commonly used symbols are "the letter N, anything that is representative of the number 14-N is the 14th letter of the alphabet-the Roman numerals XIV, which is the number 14 in Roman numerals, a one dot and a four dot. Typically their primary color is red. They use the Huelga bird as one of their primary symbols, which was taken from the United Farmworkers." He further testified their primary activities include "[a]ssaults with firearms, stabbings, homicides, narcotics trafficking, burglaries, robberies, stealing cars." Finally, the detective testified regarding the facts of two predicate offenses committed by gang members belonging to two different Norteño subsets. The first predicate offense involved three Norteño gang members who belonged to the Varrio Centro subset, a "click that's in downtown Sacramento," one of whom fired upon a car being driven by a person he "had problems with in the past" while another threw two beer bottles at the car. The other predicate offense involved four Norteño gang members who belonged to the Varrio Gardenland subset, one of whom pulled out a handgun during a fight with a rival group of Norteños and shot three people, killing one. However, while there is more than sufficient evidence establishing the defendants in this case are Norteño gang members, they did not belong to the specific subsets whose members perpetrated the predicate offenses. Instead, Adam and Jesse belonged to the Oak Park subset, while Isaac belonged to the Varrio Franklin Boulevard subset. Detective Sample testified Norteño subsets adhere to the same structure, have the same beliefs, and claim membership in the overarching Norteño gang.
We are compelled by our Supreme Court's recent decision in Prunty, supra,
Here, as in Prunty, the evidence falls short of establishing an associational or organizational connection between the Norteño subsets who committed the predicate offenses, i.e., the Varrio Centro Norteños and the Varrio Gardenland Norteños, and the Norteño subsets to which defendants belonged, i.e., the Oak Park Norteños and the Varrio Franklin Boulevard Norteños. As in Prunty, Detective Sample "did not describe any evidence tending to show collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described. None of his testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Prunty, supra, 62 Cal.4th at p. 82,
With respect to showing a connection between the various subsets and the larger Norteño gang, the question becomes closer. As the Attorney General points out, Detective Sample testified Norteño subsets adhere to the same structure, have the same beliefs, and claim membership in the larger Norteño gang. However, the detective did not testify as to what that purported structure was, or that it was somehow imposed upon the subsets by the larger Norteño organization. (See, e.g., Prunty, supra, 62 Cal.4th at p. 77,
[*1467] Finally, Detective Sample's testimony that Norteño subsets claim membership in the larger Norteño gang does not suffice to establish the requisite connection. As our Supreme Court explained: "[T]here are some limits on the boundaries of an identity-based theory. The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization. [Citation.] Although evidence of self-identification with the larger organization may be relevant, the central question remains whether the groups in fact constitute the same 'criminal street gang.' In making the required showing, moreover, the prosecution must do more than simply present evidence that [*699] various alleged gang subsets are found within the same broad geographic area. For instance, that the various alleged gang subsets in this case were located 'all over Sacramento' does not show that the subsets constituted a single criminal street gang. The prosecution must introduce evidence of the alleged subsets' activities, showing a shared identity that warrants treating them as a single group. Such evidence could come in the form of proof that a certain Norteño subset retaliates against a Sureño gang for affronts that gang has committed against other Norteño subsets. Behavior of this kind could suggest that members of the Norteño subset consider themselves to be part of a larger association. Or, the prosecution could introduce evidence showing that different subsets require their members to perform the same initiation activities. Evidence of this common behavior may be some evidence that members identify themselves as belonging to the same gang. The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' (§ 186.22(f).) Evidence of self-identification must refer to the particular activities of subsets, and must permit the jury to reasonably conclude that the various subsets are associated with each other because of their shared connection with a certain group. And where, as in this case, the alleged perpetrators of the predicate crimes under section 186.22(f) are members of particular subsets, the behavior of those subsets' members must connect them to the gang the defendant sought to benefit." (Prunty, supra, 62 Cal.4th at pp. 79-80,
Here, as in Prunty, while there was ample evidence defendants self-identified as part of the larger Norteño gang and the Oak Park Norteños (Adam and Jesse's subset) collaborated with the Varrio Franklin Boulevard Norteños (Isaac's subset) to carry out the present offenses, Detective Sample "offered no evidence that ... members [of the subsets who committed the predicate offenses] behaved in a manner that conveyed their identification [*1468] with the larger association that [defendants] sought to benefit. Instead, Sample simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses. He offered no additional information about their behavior or practices that could reasonably lead the jury to conclude they shared an identity with a larger group. The jury was consequently left with no way to connect the subsets that committed the predicate offenses to the larger Norteño group the prosecution claimed [defendants] acted to benefit." (Prunty, supra, 62 Cal.4th at pp. 82-83,
We must therefore reverse the gang enhancement findings as to all defendants. Moreover, because each defendant was also found to qualify for vicarious firearm enhancements under section 12022.53, subdivision (e)(1), which requires violation of section 186.22, subdivision (b), as an element of that enhancement, we must also reverse these vicarious firearm enhancement findings as to all defendants. We note, however, Adam and Isaac were also found to have personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) during the commission of their crimes, independently qualifying them for the 25-years-to-life enhancement for each crime.
[*700] II
Admission of Gang Expert's "Basis" Testimony
Defendants also contend the trial court violated their right of confrontation under the Sixth Amendment to the United States Constitution by allowing the prosecution's gang expert, Detective Sample, to testify concerning the basis for his conclusion defendants were active gang members. We disagree.
A.
Additional Background
Isaac moved in limine to preclude Detective Sample from testifying concerning certain unspecified out-of-court statements made by "various individuals identifying Isaac as a gang member" and other " 'gang-related' reports," from which the detective concluded Isaac was an active gang member. Relying on the dissenting and concurring opinions in Williams v. Illinois (2012) 567 U.S. ----,
[*1469] The trial court overruled Isaac's constitutional objection to this basis evidence, noting defense counsel would be able to cross-examine the detective concerning the basis for his opinion and argue to the jury the detective's opinion was not adequately supported.
During trial, Detective Sample testified he believed all three defendants were active Norteño gang members. Sample based his opinion as to Adam on "numerous police reports" and "other documents" indicating Adam had been "in the company of gang members ... on four separate occasions," had been "involved in gang-related crimes on two separate occasions," and had been involved in other "gang activity" on "two separate occasions." Additionally, Adam indicated on his jail classification form that he was affiliated with the Norteños and requested separation from rival Sureño gang members. With respect to Jesse, the detective testified: "He admitted to being an Oak Park Norteño to Detective Al Sanchez. He's been contacted in the company of known Norteño gang members, I believe, on six different occasions. He's been involved in gang crimes on several occasions. And he, too, filled-described on his jail classification form that he was an associate to the Norteños and requested to be separated from Southerners, again, a term for the Norteño rivals." Finally, with respect to Isaac, the detective testified: "Multiple-he's met multiple criteria. I think I read almost a dozen reports containing gang evidence. He was contacted on nine different occasions in the company of ... known Norteño gang members. He's been named by no less than two other Norteño gang members as a Norteño gang member. He's been documented [as] involved in several gang crimes, several reports of documented gang graffiti found in his possession. I've seen gang photos where Isaac is throwing up gang hand signs, and he's been involved in gang activity. Additionally [on] his jail classification form he classified himself as an XIV associate, again XIV being the Roman numeral 14, which is a common symbol for Norteños."
B.
Analysis
As a preliminary matter, neither Adam nor Jesse joined in Isaac's motion to exclude the foregoing basis testimony. And as we have previously explained, [*701] failure to join in a motion of a co-defendant generally forfeits the issue on appeal. (See People v. Wilson (2008)
"California law permits a person with 'special knowledge, skill, experience, training, or education' in a particular field to qualify as an expert witness (Evid.Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Id. subd. (a).) The subject matter of the culture and habits of criminal street gangs ... meets this criterion." (People v. Gardeley (1996)
Turning to the confrontation issue raised on appeal, in Crawford v. Washington (2004)
[*702] People v. Sisneros (2009)
[*1471] People v. Ramirez (2007)
In Hill, supra,
Like other California courts, we are bound by our Supreme Court's conclusion in Gardeley, supra,
Nevertheless, defendants urge: "Five Justices of the United States Supreme Court have soundly rejected the view that expert 'basis evidence' is not admitted for its truth." (See Williams,
Defendants also argue "a clear majority" of our Supreme Court reached a similar conclusion in People v. Dungo (2012)
We disagree that either Williams,
We conclude the common view expressed in the concurring and dissenting opinions in Williams,
Because the challenged evidence was admitted for the limited purpose of explaining the basis of Detective Sample's opinions, its admission did not run afoul of defendants' right to confrontation under the Sixth Amendment.
III
Admission of Certain Opinion Evidence
Defendants further assert the trial court prejudicially erred by allowing expert opinion testimony that defendants probably fired first because Ellison would not have wanted to "attract trouble" to his home. Not so.
A.
Additional Background
Detective Jason Kirtlan interviewed Neal in the presence of Neal's attorney, who had secured an immunity agreement for Neal prior to the interview. During his cross-examination of Detective Kirtlan, Jesse's trial counsel asked: "Now, when [Neal] came to talk to you, isn't it true that the first thing you said to him is, I know you're the victim?" The detective answered: "Something to that effect, yes." Counsel then asked: "Wouldn't it have been better to wait until you had heard what he had to say before you accepted his innocence?" The detective responded: "As I discussed earlier, there was [*1474] overwhelming evidence in this case, as I've outlined, as to why I felt he was the victim and fired back in self-defense, as shared with the D.A.'s office, who agreed, and in this case gave him a letter of immunity."
During the prosecution's redirect examination, the prosecutor asked Detective Kirtlan: "Is there anything other than what you've already stated, which is the placement of the casings and the evidence around the scene, the statements from [Boyd] and other witnesses and the overall ballistics evidence in the case, including the shot into [a neighboring] house, that causes you to take the position that, in fact, [Neal] was being truth[ful]-that [Neal] did fire back second?" The detective answered: "Yes, there is." Then, after various objections were overruled, he explained: "[Ellison] was pulling into his driveway. He was in his neighborhood. He is not going to attract, nor would the occupants of his vehicle, in my belief, attract trouble to their home. [¶] The [Explorer] was out of the area. They're south area occupants up in the north area in a vehicle with weapons. [Ellison] was pulling into his driveway. [¶] If they were-if [Neal] were to have shot, the vehicle gets away, now they know where to come back to retaliate. [¶] It doesn't make sense to me. And given the totality of the rest of the evidence, that led me to my determination that the Taurus was fired on." Isaac's trial counsel then objected that the answer was an "[i]mproper opinion," which was overruled.
During Detective Sample's expert testimony, the prosecutor asked: "Assume that you have a gang member with several other people in his car. This gang member is feeling vulnerable. He has got a gun in his car. He's been threatened, he's been labeled a snitch. And he comes down the street and he sees other people coming towards him who are muggin' him, they don't-he doesn't know them, the people in his car don't know them, but they know that they are giving hard looks to him. [¶]
[*705] Would it be consistent with your knowledge of gang members for those people feeling vulnerable to turn into a dead end and leave themselves open to attack?" Jesse's trial counsel objected that the answer was "speculative," which was overruled. The detective then answered: "No, it did not-it would not seem a likely response for somebody who's that alert to a possible threat."
B.
Analysis
Defendants argue the testimony of both detectives amounted to improper expert opinion for three reasons: (1) "the subject matter was not beyond the common experience of the average juror"; (2) "the opinion was essentially a question of whether the experts thought that Neal and [Boyd] were telling the truth when they testified that the [defendants] fired first"; and (3) because [*1475] "the whole case boiled down to whether the jury determined that Neal fired first or they fired first," the testimony amounted to "their view of how the case should be decided." In response, the Attorney General draws a distinction between the two witnesses. With respect to Detective Kirtlan, the Attorney General argues the challenged testimony "was not admitted as his opinion on whether Neal in fact acted in self defense," but rather "was properly admitted to rebut the implied bias raised by the defense under Evidence Code section 780, subdivision (f)," i.e., the detective concluded Neal fired in self-defense before speaking to him because of a prior working relationship with Ellison and Boyd because Ellison had cooperated in a previous case against a fellow gang member. With respect to Detective Sample, the Attorney General argues the challenged testimony was a proper expert opinion.
1. Detective Kirtlan's Testimony was Properly Admitted
"In determining the credibility of a witness, the jury may consider, among other things, '[t]he existence or nonexistence of a bias, interest, or other motive' for giving the testimony. (Evid.Code, § 780, subd. (f).)" (People v. Price (1991)
In these circumstances, it was proper for the prosecution to then rehabilitate the detective by eliciting the reason he believed Neal did not fire first before he had spoken to the man. In other words, the challenged testimony was offered to show the detective's belief Neal fired in self- [*706] defense was based on reason, as opposed to mere bias, as the defense questioning suggested. (See, e.g., [*1476] People v. Nichols (1970)
2. Detective Sample's Testimony was Properly Admitted
As previously explained, expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid.Code, § 801, subd. (a).) "The subject matter of the culture and habits of criminal street gangs ... meets this criterion." (Gardeley, supra, 14 Cal.4th at p. 617,
The trial court did not abuse its discretion in allowing the challenged testimony of Detectives Kirtlan and Sample.
IV
Exclusion of Defense Evidence
Defendants claim the trial court prejudicially erred and violated their constitutional right to due process by excluding evidence of a post made to Ellison's Facebook page on the day of the shooting, which they argue indicated Ellison "had reentered gang life" and "was associating with gang members." According to defendants, this evidence was highly probative of their defense, i.e., Ellison was killed in self-defense after Neal opened fire on them, because "the people in Ellison's car had the same motivations to shoot first as the gang expert attributed to [defendants]." Defendants also claim the excluded evidence "would [have] support[ed] the defense contention that Ellison drove his car in a way to force [defendants] to stop in front of his house" and "would [have] rebut[ted] [Boyd's] testimony that Ellison only [*1477] purchased the gun because he was afraid of being attacked because he was cooperating with the police."
A.
Additional Background
Jesse moved in limine to introduce a printout from Ellison's Facebook page that included a post made around two hours before the murder. The post stated: "GET MONEY TRUST NOT A SOUL MONEY AND MURDER I SWEAR IM BACK AT IT AGAIN WHO CAN I TRUST IN THIS WORLD? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? GET ACTIVE." The printout also included Ellison's profile picture, in which he was apparently making a gang sign with his hands.
[*707] Jesse's trial counsel argued the post was relevant to show Ellison's state of mind at the time of the shooting, i.e., he and the other occupants of the Taurus "were expecting to get hit" and "were expecting trouble," which he argued was "very probative of who fired first." Counsel also argued the post was admissible despite the hearsay rule because it qualified as a statement of Ellison's then-existing state of mind and a statement against penal interest. Counsel further argued Boyd, who also had access to Ellison's Facebook account, could authenticate the post. Isaac's attorney joined in these arguments.
In response, the prosecutor did not object to the profile picture being admitted, but argued defense counsel was attempting to "circumvent the hearsay rules and circumvent the foundational requirements" by seeking to admit the Facebook post. With respect to hearsay, the prosecutor did not actually make an argument. With respect to foundation, the prosecutor questioned whether counsel would be able to establish Ellison "did in fact, make that entry."
After further argument from defense counsel, the trial court took the matter under submission.
Trial began without a ruling on admissibility of the Facebook post. The following exchange occurred during Jesse's cross-examination of Neal:
"Q Did you also say that [Ellison] don't even gang bang no more?
"A Yes, I did say that. He did not gang bang anymore.
"Q You don't know-you say you know that for a fact?
[*1478] "A I know that for a fact. [¶] He got married and he was a family-was a family man. He was changing his life. His grandma had just passed away. He had just got saved. [¶] He was-he was a totally different dude that I know from growin' up with. I know for a fact he did not gang bang anymore.
"Q Did you ever go on his Facebook page?
"A Yes, I did.
"Q When was the last time you went on his Facebook page?
"A Um, I been on there after he was killed. I been on there before he was killed."
At this point, counsel again sought to admit the Facebook post, arguing the post was admissible under Evidence Code section 780 as evidence tending to disprove the truthfulness of Neal's testimony that Ellison was no longer "gang banging." The trial court ruled the post inadmissible under Evidence Code section 352, as requiring the jury to "embark on ... something that's a bit of a side show, and that is the question of whether or not [Neal] believes [Ellison] was involved as a gang banger at the time." The trial court then instructed the jury to disregard Neal's "opinions as to whether or not [Ellison] was or was not involved actively as a member of a gang."
B.
Forfeiture
We first note neither Jesse's trial counsel, nor counsel of either co-defendant, pressed for a ruling on the matter of whether or not the Facebook post was admissible as substantive evidence Neal fired first, prompting Adam and Isaac to return fire in self-defense. (See People v. Braxton (2004)
C.
Ineffective Assistance of Counsel
Anticipating forfeiture, Jesse argues his trial counsel rendered constitutionally deficient assistance by failing to "explicitly argue that the fact that Ellison had returned to an active gang life would tend to show that he and his associates ... were just as likely to fire first as were Jesse and his associates." Adam and Isaac join in this argument as well, which we interpret as arguing their respective counsel were equally ineffective.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987)
Defendants have not carried their burden. Even assuming (1) counsel would have been able to establish Ellison in fact made the post to his Facebook page, (2) the post indeed meant Ellison had decided to return to an active gang lifestyle, (3) defendants are correct that the Facebook post was [*1480] relevant to establish (a) Neal was just as likely to have fired first as were Adam and Isaac, (b) Ellison likely drove the Taurus in between the first car and the [*709] Explorer in order to force defendants to stop in front of his house, and (c) contrary to Boyd's testimony, Ellison did not purchase the handgun solely because he was afraid of being attacked for having cooperated with the police, and (4) the post was not inadmissible hearsay because it evidenced Ellison's then-existing state of mind, we cannot conclude exclusion of this evidence would have been an abuse of discretion under Evidence Code section 352 or a violation of their constitutional right to due process.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Our Supreme Court has explained this section "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne (1971)
Here, the Facebook post was minimally probative of defendants' claim of self-defense. Even assuming the post established in the jurors' minds that Ellison possessed the gun, not simply for protection, but also for gang purposes, i.e., confrontation, and Ellison deliberately cut off the Explorer while pulling into his driveway, neither fact would justify defendants' actions of opening fire on Ellison's car. The only purported fact that would justify such an assault is Neal's firing at the Explorer first, or at the very least, pointing Ellison's gun in defendants' direction, and thereby causing a reasonable belief in the need to employ deadly force in self-defense. But the Facebook post was made by Ellison, not Neal. There is no dispute Neal was the one who fired Ellison's gun. Indeed, Ellison was apparently hit before he could put the car in park. Ellison's post was therefore relevant on the issue of Neal's conduct only if Neal was aware of the post. In other words, Ellison's decision to return to gang life, by itself, does not tend to prove anything about Neal. However, Neal's belief Ellison was out of the gang life would tend to make it less likely that he would take it upon himself to use Ellison's gun to fire upon another vehicle in front of Ellison's house had occupants of that vehicle not fired first. Conversely, Neal's belief Ellison had returned to the gang life would tend to make his firing first in these circumstances more likely. But how much more likely? We conclude the answer is "not much."
[*1481] The evidence established Ellison had offered testimony against a rival gang member, had been threatened for having done so, and was pulling into his driveway when the shooting occurred. In these circumstances, regardless of whether Ellison had decided to return to the gang lifestyle, and regardless of whether Neal was aware of this decision, opening fire on an Explorer full of gang members in front of Ellison's house, and in a driveway with no means of escape when the occupants of the Explorer predictably returned fire, is so unlikely as to be implausible.
Weighing against this low level of probative value is the reality that admission of the evidence would have required a significant [*710] consumption of time. The defense would have been required to establish what we have assumed in our analysis thus far, i.e., the post was in fact made by Ellison, the post indeed meant Ellison had returned to an active gang lifestyle, and Neal was aware of his return to this lifestyle. In light of the minimal probative value of the evidence, we cannot conclude the trial court would have abused its discretion by excluding the evidence under an Evidence Code section 352 analysis. Nor are we persuaded such a decision would have amounted to a deprivation of due process. While defendants are correct to point out Evidence Code section 352 "must bow to the due process right of a defendant to a fair trial and his [or her] right to present all relevant evidence of significant probative value to his [or her] defense[,] ... the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (People v. Burrell-Hart (1987)
In sum, because admission of the Facebook post would have necessitated an undue consumption of time and the post was not significantly probative of defendants' claim of self-defense, the trial court would not have abused its discretion or violated defendants' due process rights by excluding the evidence under Evidence Code section 352 had defendants' respective counsel pressed for a ruling on the matter. Thus, regardless of whether reasonable counsel would have pressed for such a ruling, our confidence in the outcome is not undermined.
V
Causation Instruction
Defendants also contend the trial court prejudicially erred and violated their constitutional rights by providing the jury with a different instruction on causation than that contained in bracketed portions of CALCRIM No. 520. We disagree.
[*1482] CALCRIM No. 520 defines the crime of murder for the jury. The jury was so instructed.[4] Defendants complain the trial court did not provide the following bracketed portions of the instruction on the issue of causation: "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] There may be more than one cause of [*711] death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death." (CALCRIM No. 520.)
Instead of the foregoing bracketed portions of CALCRIM No. 520, the trial court instructed the jury, in language virtually identical to CALJIC No. 3.41, as follows: "There may be more than one proximate cause of a homicide, even when there is only one known or actual or direct cause of death. [¶] When the conduct of two or more persons contributes concurrently as a proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also the substantial factor contributing to the result. [¶] A cause is concurrent if it was operative at the time of death and acted with another cause to produce death."
Both CALCRIM No. 520 and CALJIC No. 3.41 indicate in their respective use notes that a trial court has a sua sponte duty to instruct on proximate cause if causation is an issue in the case. (Use Notes to CALCRIM No. 520 and CALJIC No. 3.41.) CALCRIM No. 520's use note continues: "If the evidence indicates that there was only one cause of death, the court should give the 'direct, natural, and probable' language in the first bracketed paragraph on causation. If there is evidence of multiple causes of death, the court should also give the 'substantial factor' instruction and definition in the second bracketed causation paragraph." (Use Note to CALCRIM No. 520.)
[*1483] "The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006." (People v. Thomas (2007)
Here, the substance of the second bracketed causation paragraph of CALCRIM No. 520 was covered by the CALJIC instruction given to the jury. "CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Council's adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. No statute, Rule of Court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions."
[*712] (People v. Thomas, supra, 150 Cal.App.4th at pp. 465-466,
However, we do agree with defendants on two points. First, the instruction given to the jury in this case, CALJIC No. 3.41, omits "the basic legal definition of cause." This is because that definition was provided in CALJIC No. 3.40, which was not given to the jury.[6] Second, the instruction given to the jury used the term "proximate cause," which does not appear in either the current CALCRIM instruction or the post-1992 CALJIC version of the instruction. This is because our Supreme Court has held use of the term "proximate cause" in such an instruction "may mislead jurors, causing them ... to focus improperly on the cause that is spatially or temporally closest to the harm." ( [*1484] Mitchell v. Gonzales (1991)
In this case, as in People v. Sanchez (2001)
Nevertheless, defendants argue there is evidence the occupants of the smaller car in front of the Explorer may have also [*713] fired upon Ellison's car, and one of them might have fired the fatal shot. While there is some evidence shots may have also been fired from the smaller car, this would not undermine our conclusion Adam and Isaac, by firing their own bullets into Ellison's car, also proximately caused Ellison's death. Stated simply, assuming there were three gunmen instead of two, who fired the fatal bullet is still unknown, and the jury could find all three gunmen proximately caused the death. Nor are we persuaded by the argument, made in Adam's opening brief, it would be speculative to conclude that "defendants were acting in concert with the occupants of the other vehicle, or that the occupants of the two vehicles even knew each other." If, as defendants suggest, both the Explorer and the smaller lead car fired upon Ellison's car as it pulled into the [*1485] driveway, a reasonable inference is that the two vehicles were acting in concert. Adam's trial counsel acknowledged as much when he argued in closing that the smaller car was "a companion car" containing "friends of theirs." Moreover, defendants cite no authority for the proposition that the two cars had to act in concert in order for Adam and Isaac to have proximately caused Ellison's death by also firing upon his car. Indeed, in People v. Sanchez, supra,
We conclude that while the trial court erred by instructing the jury with an out-of-date version of CALJIC No. 3.41, rather than the preferred bracketed portions of CALCRIM No. 520 on causation, the error was manifestly harmless under any standard of prejudice.
VI
Modification of the Abstract of Judgment
The final claim asserted by all defendants is that their respective abstracts of judgment must be modified to reflect the victim restitution order is a joint and several obligation. The Attorney General concedes the point. We accept the concession. (See People v. Leon (2004)
[*1486] ADAM AND ISAAC
VII
Cruel and Unusual Punishment
Adam and Isaac also assert the trial court's imposition of a sentence the functional equivalent of LWOP amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. We agree.
[*714] A.
Additional Background
Adam and Isaac were 17 and 16 years old, respectively, when they opened fire on Ellison and his companions, killing Ellison. Isaac was also developmentally disabled. Isaac's sentencing memorandum argued the probation department's recommendation that the trial court impose an indeterminate term of 170 years to life, plus a consecutive determinate term of 37 years 4 months, "on a mentally impaired minor with a severely disadvantaged upbringing, including a drug-addicted mother, absent father figure, periods of homelessness, and an abusive and chaotic family life" would violate the Eighth Amendment. Adam's sentencing memorandum similarly argued the probation department's recommendation that the trial court impose such a sentence "on a boy of only 17 years of age at the time of the offense, constitutes cruel and unusual punishment in violation of the Eighth Amendment."
The trial court sentenced Adam and Isaac to serve an aggregate indeterminate prison term of 120 years to life plus a consecutive determinate term of 9 years 4 months. This sentence was comprised of the following: 20 years to life for second-degree murder by means of shooting a firearm from a motor vehicle with intent to inflict great bodily injury (§§ 187, 190, subd. (d), Count One), plus 25 years to life for the greatest firearm enhancement attached to that crime (i.e., personally and intentionally discharging a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), plus a consecutive determinate term of 9 years 4 months (4 consecutive terms of 2 years 4 months (one-third the middle term of 7 years)) for the attempted murders (§§ 664, subd. (a)/187, Counts Two through Five), plus 3 additional terms of 25 years to life for the same firearm enhancement attached to 3 of the attempted murders. The trial court ran one of these [*1487] 25-years-to-life firearm enhancements concurrently "in light of the constitutional scheme argued by defense."
B.
Analysis
The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments" and "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003)
In Graham v. Florida (2010)
Turning to the severity of an LWOP sentence, the court explained such a sentence "deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemencythe remote possibility of which does not mitigate the harshness of the sentence," and noted this is [*1488] "an especially harsh punishment for a juvenile," who "will on average serve more years and a greater percentage of his [or her] life in prison than an adult offender." (Graham, supra, 560 U.S. at pp. 69-70,
In Miller, supra, 567 U.S. ----,
Consistent with these decisions, in People v. Caballero (2012)
There can be no doubt the sentences imposed in this case, i.e., 120 years to life plus 9 years 4 months, are the functional equivalent of LWOP. (See Caballero, supra, 55 Cal.4th at p. 268,
We first note the trial court had no discretion but to impose a term of 20 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement. (See §§ 190, subd. (d), 12022.53, subd. (d).) Thus, the trial court was required to impose a term of 45 years to life on Count One (§ 187). However, whether to impose consecutive rather than concurrent sentences with respect to the remaining counts was a discretionary decision. (See § 669; People v. Shaw (2004)
[*1490] [*717] People v. Coelho (2001)
Here, with respect to imposing consecutive sentences for Counts Two through Five (§§ 664/187), i.e., the four attempted murders, the trial court stated: "The Court finds that each of those offenses was a separate act of violence, and I will articulate this factual finding as it relates to each of them. [¶] This is not a situation where there was only one or two shots fired. Factually in this case, multiple guns were basically unloaded. [¶] And it is quite clear that it is appropriate, in the Court's view, to recognize the imposition of a separate sentence as it relates to each of the individual victims in this case." We do not dispute these are appropriate reasons for imposing consecutive sentences. (See People v. Thurs (1986)
The record is unclear as to whether this occurred. After stating its reasons for imposing consecutive sentences on Counts Two through Five (§§ 664/
[*1491] 187), the trial court stated it would run one 25-years-to-life firearm enhancement, i.e., that attached to Count Five, concurrently "in light of the constitutional scheme argued by defense." Thus, it appears the trial court considered the constitutional arguments raised by Adam and Isaac and agreed the probation officer's recommendation would amount to cruel and unusual punishment. However, running one of the firearm enhancements concurrently did not reduce the sentence below that of a functionally equivalent LWOP. As a practical matter, there is no difference between the sentence recommended by probation (170 years to life plus 37 years 4 months), the sentence the trial court would have imposed without running one firearm enhancement concurrently (145 years to life [*718] plus 9 years 4 months), and the sentence actually imposed (120 years to life plus 9 years 4 months). In other words, if an individualized consideration of "all mitigating circumstances attendant in the juvenile's crime and life" (Caballero, supra, 55 Cal.4th at p. 268,
In light of the importance of this constitutional right, and uncertainty as to whether the trial court appropriately took into account all mitigating circumstances pertaining to these particular juveniles, we conclude the appropriate remedy is to remand for a new sentencing hearing.
Nevertheless, the Attorney General argues: "Resentencing is unnecessary in light of Senate Bill No. 260 codified as section 3051 of the Penal Code (Stats. 2013, ch. 312, § 4) , which took effect on January 1, 2014, and will afford Isaac and Adam a meaningful opportunity for parole during their 25th year of incarceration, well within their expected lifespans." While we agree this enactment will give Adam and Isaac such an opportunity, we cannot conclude this renders remand unnecessary.
The Legislature responded to Miller, supra,
To effectuate the Legislature's intent, Senate Bill No. 260 added section 3051 to the Penal Code (Stats. 2013, ch. 312, § 4), which requires the Board of Parole Hearings (the Board) to conduct youth offender parole hearings during the 15th, 20th, or 25th year of incarceration. (§ 3051, subd. (b).) A youthful offender whose sentence is a term of 25 years to life or greater is "eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(3); Sen. Bill No. 260, § 4 (2013-2014 Reg. Sess.).) In conducting youth offender parole hearings under [*719] section 3051, the Board is required to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c); Stats. 2013, ch. 312, § 5.) If the youthful offender is found suitable for parole by the Board, he or she must be released even if the full term originally imposed has not yet been completed. (§ 3046, subd. (c).)
Despite the fact Senate Bill No. 260 provides what may be considered a "safety net," providing a juvenile offender the opportunity for a parole hearing during his or her lifetime, the new legislation does not substitute for the sentencing court's consideration of all individual characteristics of the offender. In Miller, the United States Supreme Court held imposition of punishment for crimes committed as a juvenile constitutes a task "demanding individualized sentencing." (Miller, supra, 132 S.Ct. at p. 2467.) After noting its earlier decisions requiring consideration of the mitigating and aggravating factors unique to each case of sentencing for crimes committed as a minor, the Miller court emphasized that, "[o]f special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the 'mitigating qualities of youth.' " (Id. at p. 2467, quoting Johnson v. Texas (1993)
Moreover, a properly imposed sentence by itself can prove valuable in indicating the trial court's conclusions about the youthful offender's level of development, culpability, and other relevant factors. When youthful offenders must ultimately show achievement of sufficient growth and maturity to secure release on parole, the Board will need to refer back to the circumstances that existed at the time of the commission of the crimes and were apparent to the trial court at sentencing. (See Caballero, supra, 55 Cal.4th at pp. 268-269,
Finally, our conclusion that remand for resentencing must be ordered in this case is bolstered by our Supreme Court's examination of constitutionally deficient sentencing for youthful offenders in People v. Gutierrez (2014)
In so holding, the court rejected the Attorney General's argument that the recent enactment of section 1170, subdivision (d)(2), "removes life without parole sentences for juvenile offenders from the ambit of Miller's concerns because the statute provides a meaningful opportunity for such offenders to obtain release." (Gutierrez, supra, 58 Cal.4th at p. 1386,
VIII
Rule of Completeness
Isaac contends the trial court prejudicially erred and violated his constitutional rights by allowing one of the detectives in the case to convey a misleading portion of his police statement rather than require the prosecution to play the entire statement for the jury. We disagree.
A.
Additional Background
Ellison was killed by a 9-millimeter bullet. Police found multiple 9-millimeter and 10-millimeter shell casings in the street in front of Ellison's house. As mentioned, they found the corresponding 10-millimeter handgun along the chase route. However, while police also found a magazine for a 9-millimeter handgun along the chase route, they did not find the gun itself.
Detective Kirtlan interviewed Isaac after the shooting. The detective told Isaac police had found the 10-millimeter handgun and the 9-millimeter magazine, but were still looking for the 9-millimeter handgun. He also explained it was a "public safety issue" to have a gun left out on the street, especially since there would be children walking down that street on their way to school the next morning. Isaac then discussed the matter with his stepmother, who had joined him in the interview room, and ultimately agreed to point out the location of the missing handgun. The detective brought in a map of the area and Isaac pointed out the location he believed "they throwed it out."
The prosecution moved in limine to be allowed to elicit testimony from Detective Kirtlan that Isaac told him the location he believed police would be able to find the gun, despite the fact Isaac "arguably" invoked his right to remain silent under Miranda v. Arizona (1966)
In response, Isaac's trial counsel argued: "I think that there is ... an Evidence Code section 356 problem. I think that the throwing of the gun is being used to show consciousness of guilt, whereas Isaac's statement during this long period that he was interrogated and questioned was that this was self-defense. So I think that you need to get in the entire statement so that the jury could, in essence, understand that." Counsel also expressed concern that limiting the testimony to Isaac providing the location of the gun "gives a false impression that if he's saying where the gun was thrown, then it gives [*722] the impression that he threw the gun, and that's a significant issue."
The prosecutor argued in reply: "As far as Evidence Code section 356, I don't know that there is anything in his self-serving statements to [Isaac's stepmother] or even his inculpatory statements to [his stepmother] that explained the limited part that I'm trying to get out, where could they look for the gun. [¶] One of the things that has already been raised here by [counsel for Jesse] is that the police didn't do their job, didn't look for the .40 caliber, didn't even bother to look for the .40 caliber, didn't even bother to find it. Now, that's the one that was used by Latrele Neal. But it should at least be shown that the officers made attempts to find the outstanding nine millimeter. [¶] Because one of the other arguments counsel can make, well, maybe if we had the nine millimeter we could have-if they had done their job and looked for that maybe we could have done some testing on that or figured out which one of them fired it. There's nothing in any of the witness statements, even the witnesses who saw the ten millimeter being thrown from the car that indicates who in the car threw it. [¶] Now, in his statement, that portion of it I think he indicates or the officer indicates that it was thrown from the driver's side window. I'm not implying that we know who threw the gun. I'm simply trying to get before the jury that the officers attempted to locate it. They attempted to get information. They got information, and they went to look for it. But there's nothing in the statements that he makes to [his stepmother] or the lies that he makes to Detective Kirtlan initially that explains that or adds to it or clears anything up."
The trial court ruled that admitting the fact Isaac provided the location of the gun to police would not violate Miranda. The trial court further ruled Evidence Code section 356 did not require "allowing an entire expansive rambling statement encompassing a number of topics to address a sole and easily isolated question such as we have in this case." Finally, the court explained the prosecution's intended use of Isaac's statement as to the location of the 9-millimeter handgun did not "over-implicate" Isaac or "misrepresent" he was the one who threw the gun out of the Explorer.
[*1497] In accordance with the trial court's ruling, during the prosecution's examination of Detective Kirtlan, the following exchange occurred:
"Q Did you receive information from [defendant] Isaac Vasquez about the location of a missing nine-millimeter semiautomatic handgun?
"A Yes, I did.
"Q Did you go to the area after receiving that information and search the area where it was thought that that gun might be?
"A Yes, ma'am.
"Q And where was that location?
"A Essentially in the area of Northgate and Striker in North Sacramento.
"Q Now, is that an area where other evidence had been located?
"A Yes, ma'am.
"Q What other evidence had been located there?
"A A magazine to a nine-millimeter semiautomatic handgun.
"Q Did you find the nine-millimeter semiautomatic handgun?
"A No, we did not."
[*723] B.
Analysis
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Italics added.)
This provision "is sometimes referred to as the statutory version of the common-law rule of completeness. [Citation.] According to the common-law rule: ' "[T]he opponent, against whom a part of an utterance has been put [*1498] in, may in his [or her] turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." [Citation.]' [Citation.]" (People v. Parrish (2007)
Here, Detective Kirtlan testified Isaac told him where the 9-millimeter handgun could be found, and after receiving this information, he went to a certain location where police found a magazine to a 9-millimeter handgun, but not the gun itself. Implicit in this testimony is that Isaac told the detective the gun could be found at that particular location. From this, and the fact the location was along the chase route, the jury could infer someone in the Explorer threw the gun out of the vehicle during the chase. The testimony does not reveal who threw the gun. Thus, the concern raised below that the testimony would misleadingly suggest Isaac was the one who threw the 9-millimeter handgun, and therefore likely fired the shot that killed Ellison, was obviated by the actual testimony received into evidence. Indeed, the prosecutor never argued, in either her closing or rebuttal argument, that Isaac fired the fatal shot. Instead, she specifically conceded, "we don't know who had the nine and who had the ten."
The other argument for admission of the entire statement, which was raised below, was the jury should hear the entirety of Isaac's statement, including the portion indicating the shooting was done in self-defense, to balance out the suggestion that throwing the gun out of the Explorer evidenced Isaac's consciousness of guilt. However, the trial court appeared to credit the prosecutor's assurance Isaac's statement as to where the 9-millimeter handgun could be found was being offered solely on the issue of whether the police conducted a thorough investigation. (See 4 Jones on Evidence (7th ed. 2014) § 24:26 ["where the defendant challenges the investigation as unprofessional or sloppy or claims that he [or she] was falsely accused, the prosecutor should be entitled to spell out the investigation in greater [*724] detail to rebut this defense"].) The prosecutor lived up to this assurance. At no point in her arguments to the jury did she argue the fact Isaac threw a handgun from the SUV evidenced his consciousness of guilt. Moreover, the rule of completeness prevents " 'the use of selected aspects of [*1499] a [statement] so as to create a misleading impression on the subjects addressed,' " and therefore "hinges on the requirement that the two portions of a statement be 'on the same subject.' " (People v. Vines (2011)
Finally, we note Isaac raises a separate issue for the first time on appeal. He argues his exact statement to Detective Kirtlan, i.e., "they throwed it out" should have been admitted because it "was exculpatory in that it supported an inference that [Isaac] did not shoot the 9-millimeter gun that killed Ellison." Acknowledging admission of Isaac's statement, "they throwed it out" at the joint trial in this case, where Isaac did not testify, would have potentially violated his codefendants' confrontation rights under People v. Aranda (1965)
The trial court did not abuse its discretion in ruling Evidence Code section 356 did not require admission of Isaac's entire statement to Detective Kirtlan.
IX
Cumulative Prejudice
Finally, we reject Isaac's assertion the cumulative effect of the foregoing assertions of error require reversal. We have reversed Isaac's gang enhancement and vicarious firearm enhancement findings and remanded the matter to the trial court for a new sentencing hearing that comports with the Eighth Amendment. This does not, however, affect Isaac's convictions or remaining enhancement findings. The only other meritorious claim of error, i.e., the instructional error, we concluded was harmless. Accordingly, there is no prejudice to cumulate.
[*1500] DISPOSITION
The judgment entered against Jesse Cornejo is modified to strike the gang enhancement under Penal Code section 186.22, subdivision (b), and vicarious firearm enhancement under Penal Code section 12022.53, subdivision (e)(1), as well as the sentences imposed thereon. As modified, the judgment is affirmed. The trial court is directed to amend his abstract of judgment to reflect the modifications and to indicate the victim restitution order is a joint and several obligation and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
[*725] The judgments entered against Adam Cornejo and Isaac Vasquez are reversed, although their convictions and enhancement findings shall stand, with the exception of the gang enhancement under Penal Code section 186.22, subdivision (b), and vicarious firearm enhancement under Penal Code section 12022.53, subdivision (e)(1), which are also reversed. With respect to these defendants, the matter is remanded to the trial court for a new sentencing hearing during which the trial court shall consider all mitigating circumstances pertaining to these particular juveniles in determining whether to employ consecutive sentences to impose an aggregate sentence that is the functional equivalent of life without parole. Following this new sentencing hearing, their respective amended abstracts of judgment shall also reflect that any victim restitution order imposed by the trial court is a joint and several obligation. The trial court is directed to forward certified copies of these respective amended abstracts of judgment to the Department of Corrections and Rehabilitation.
I concur:
HULL, Acting P.J.
MURRAY, J.
I concur in the majority opinion except for discussion part VII and the conclusion that the Eighth Amendment requires a remand for a new sentencing hearing for Adam and Isaac. As to that part of the majority opinion, I respectfully dissent.[1]
In my view, Senate Bill No. 260 (2013-2014 Reg. Sess.) (S.B. 260) fixed the Eighth Amendment defect in California's sentencing scheme for [*1501] juvenile offenders. As explained by the courts in Graham v. Florida (2010)
I begin with the sentencing context that led to the decisions in Graham, Miller, and Caballero, because that context is key to the reasoning and holdings in those cases.
[*726] In Graham and Miller, the United States Supreme Court addressed sentencing schemes involving mandatory LWOP sentences for juvenile offenders who were convicted of nonhomicide offenses (Graham,
The court in Graham specifically noted what the states must do to comply with the Eighth Amendment. "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." (Graham, supra, 560 U.S. at p. 75,
Our high court in Caballero recognized Graham's mandate, a mandate that does not focus on the sentence imposed, but rather on the realistic opportunity for parole. The Caballero court observed, "Graham 's analysis does not focus on the precise sentence meted out. Instead, ... it holds that a state must provide a juvenile offender 'with some realistic opportunity to obtain release' from prison during his or her expected lifetime." (Caballero, supra, 55 Cal.4th at p. 268,
Section 1 of S.B. 260 states in relevant part: "The Legislature finds and declares that, as stated by the United States Supreme Court in Miller [, supra,
Notwithstanding S.B. 260, the majority concludes that Miller 's individualized sentencing consideration requirement is still constitutionally compelled by the Eighth Amendment prohibition against cruel and unusual punishment. I disagree with the majority's view of Miller. Extending Miller far beyond sentences that carry no realistic opportunity for parole, the majority maintains that Miller stands for the proposition that the "imposition of punishment for crimes committed as a juvenile constitutes a task 'demanding individualized sentencing.' " (Maj. opn., ante, p. 718.) Miller is not that broad. Miller is about LWOP sentences, not the imposition of punishment for crimes committed by juveniles in general.
The United States Supreme Court required individual sentencing consideration in Miller precisely because the Miller defendants had been mandatorily sentenced to LWOP and for no other reason. The vice of the LWOP sentencing schemes in Miller was that the sentencer was prevented from taking into account individual sentencing considerations, including the attributes of youth, to impose a proportionate sentence because the only alternative was to sentence defendants to LWOP, the harshest sentence available for juveniles. "By removing youth from the balance-by subjecting a juvenile to the same life-without-parole sentence applicable to an adult-these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham 's ... foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." (Miller, supra, 132 S.Ct. at p. 2466.) While the high court in Graham categorically banned LWOP sentences for juveniles who committed nonhomicide offenses, the court in Miller recognized that in homicide cases an LWOP sentence could constitutionally be imposed when sentencing "the rare juvenile offender whose crime reflects irreparable corruption." (Miller, at p. 2469, italics added.) But the Miller court required sentencers "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at p. 2469, italics added.) As [*1505] a result of S.B. 260, juvenile offenders are no longer treated as if they are not children, and they are no [*729] longer "irrevocably" sentenced to a lifetime in prison. Indeed, defendants here will have a realistic opportunity for parole after 25 years whereas an adult would likely not live long enough to see the adult minimum parole eligibility date.
What has been overlooked by the majority and others is the reason the Miller court mandated individual sentencing consideration before sentencing juveniles to LWOP. Following its earlier statements in Graham, the court in Miller equated an LWOP sentence for a juvenile to the death penalty. (Miller, supra, 132 S.Ct. at pp. 2463, 2466.) The majority's seemingly broad view of Miller-that the "imposition of punishment for crimes committed as a juvenile constitutes a task 'demanding individualized sentencing' "-does not account for Miller's death penalty analogy and extends the Miller Eighth Amendment requirement further than intended by the high court to all crimes committed by juveniles. What the Miller court actually said demanded individual sentencing consideration at the page cited by the majority was the death penalty precedents where the Eighth Amendment proportionality principle of individual sentencing consideration was born. (Miller, at p. 2467.) Specifically, the Miller court said, " 'Graham 's [t]reat[ment] [of] juvenile life sentences as analogous to capital punishment,' [citation]-makes relevant here a second line of our precedents, demanding individualized sentencing when imposing the death penalty." (Ibid. italics added.) The Court noted that it had prohibited mandatory imposition of capital punishment and required sentencing authorities to consider the characteristics of a defendant and the details of the offense before imposing a death sentence. (Id. at pp. 2463-2464.) It was this death penalty analogy that motivated the high court to invoke the Eighth Amendment proportionality rule from death penalty jurisprudence mandating individualized sentencing consideration for adult defendants and apply it to juveniles subject to the harshest sentence that can be imposed on a juvenile-LWOP. (Miller, at pp. 2466-2467, 2471.)
The line of death penalty cases cited by the Miller court included Sumner v. Shuman (1987)
[*1506] Miller, supra, 132 S.Ct. at p. 2471) from this death penalty precedent, a short review of these cases is necessary.
In Furman v. Georgia (1972)
[*730] (Woodson,
In Woodson, the high court observed that the mandatory death penalty laws "enacted in response to Furman ... simply papered over the problem of unguided and unchecked jury discretion." (Woodson,
[*1507] Subsequently, the Court in Sumner, Eddings, and Lockett "elaborated on the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses." (Miller, supra, 132 S.Ct. at p. 2467.) In Johnson v. Texas (1993)
[*731] The Miller court thus reasoned that "Graham, Roper [v. Simmons (2005)
Logically, the individual sentencing consideration required by the Eighth Amendment should apply not only to LWOP but also to sentences that are the functional equivalent of LWOP, because the Miller court's death penalty analogy logically extends to sentences in which a juvenile defendant, in [*1508] effect, is "irrevocably" sentenced to a lifetime in prison with no opportunity for parole. But the analogy does not extend to indeterminate sentences after S.B. 260 for the obvious reason that when parole is possible, whatever sentence is imposed is not analogous to LWOP and thus not analogous the death penalty for juveniles. Certainly, engaging in an individual sentencing inquiry, including the consideration of the attributes of youth, would be an "enlightened policy" (see Woodson,
The majority reasons that "a properly imposed sentence by itself can prove valuable in indicating the trial court's conclusions about the youthful offender's level of development, culpability, and other relevant factors." (Maj. opn., ante, p. 719, italics added.) But I do not see what the sentence by itself will tell the Board, because assuming that Miller and Caballero still apply after S.B. 260, the trial court's only constitutionally compelled task would be to determine if the defendant is irreparably corrupt (Miller, supra, 132 S.Ct. at p. 2469; Caballero, supra, 55 Cal.4th at p. 268, fn. 4,
Further extending Miller beyond what Miller calls for, the majority says defendants have a constitutional right to some type of "evaluation" by the trial court. According to the majority, "[w]hen youthful offenders must ultimately show achievement of sufficient growth and maturity to secure release on parole, the Board will need to refer back to the circumstances that existed at the commission of the crimes and were apparent to the trial court at sentencing. [Citation.] Without a proper evaluation by the trial court, youthful offenders will be deprived of their constitutionally guaranteed evaluation at the time of their sentencing and again when attempting to meet their burden during the much later youth parole hearings." (Maj. opn., ante, p. 719, italics added.)
I am unclear what "evaluation" the trial court is constitutionally compelled to make, and I fear trial courts will be confused as well. It sounds as if the "proper evaluation" envisioned by the majority is one that would have trial [*1509] courts establish some sort of baseline from which parole authorities can determine how far juvenile defendants have progressed at the time of parole consideration. But such an evaluation is not required by the Eighth Amendment. Indeed, the Miller court never used the word "evaluation." Nor did the Caballero court. At best, under Miller and Caballero, a trial court is to consider the attributes of youth and any mitigating circumstances when engaging in its mandated individualized sentencing inquiry. However, the extent of that consideration or the specific analysis in which the court must engage is not mandated other than in homicide cases where, consistent with Miller, trial courts must make a determination as to whether the defendant is irreparably corrupt before sentencing a defendant to LWOP (Miller, supra, 132 S.Ct. at p. 2469; Gutierrez, supra, 58 Cal.4th at p. 1391,
The majority reasons that the following quote from Caballero supports its conclusion that trial courts must still engage in [*733] an Eighth Amendment compelled individual sentencing inquiry post-S.B. 260: " 'Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.... [T]he sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time [*1510] when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison "based on demonstrated maturity and rehabilitation." ' ( [Caballero, supra, 55 Cal.4th] at pp. 268-269
The focus of the majority appears to be everything said in that passage except the portion I have italicized. But the majority's focus overlooks two things, the context in which the Caballero court examined this issue and the whole point to Miller 's individualized sentencing requirement. In Caballero, our Supreme Court looked at this problem in the absence of a legislative fix. In the absence of a change to the sentencing scheme, our high court saw Graham and Miller being implemented by the only other alternative-by the trial court at sentencing. However, as I have pointed out, the Caballero court expressly noted that "Graham 's analysis does not focus on the precise sentence meted out," but rather on whether juveniles are given " 'some realistic opportunity to obtain release.' " (Caballero, supra, 55 Cal.4th at p. 268,
[*734] [*1511] On the same page as the quoted text from Caballero highlighted by the majority is footnote five, where our high court suggested a legislative fix (Caballero, supra, 55 Cal.4th at p. 269, fn. 5,
The majority maintains that their conclusion is bolstered by Gutierrez, supra,
In mandating consideration of the Miller sentencing factors, the court in Gutierrez rejected the People's argument that the newly enacted recall provisions of section 1170, subdivision (d)(2), made application of Miller unnecessary.[9] The court reasoned that the recall mechanism "does not [*1513] eliminate the serious constitutional doubts arising from a presumption in favor of life without parole." (Gutierrez, supra, 58 Cal.4th at p. 1385,
Indeed, in applying the requirements of Miller to section 190.5 LWOP sentences, the Gutierrez court specifically noted the death penalty analogy upon which the Miller court grounded its individualized sentencing inquiry requirement for juveniles subject to LWOP sentences. (Gutierrez, supra, 58 Cal.4th at pp. 1376-1377,
There appears to be a concern that information relevant to the Board might be lost unless the trial court conducts a hearing giving full consideration to the Miller factors before imposing an indeterminate sentence on juveniles. While I agree that trial courts should consider whatever mitigating information is presented to them by the parties and the probation department, as I have noted, the Eighth Amendment simply does not require that courts engage in a Miller-style individual sentencing inquiry before imposing indeterminate sentences when there is a realistic opportunity to obtain release on parole during the defendant's expected lifetime. To the extent this presents a perceived gap in the law, that gap is not for us to bridge in this case. It could be that our high court ultimately employs a modified analysis under the California Constitution's prohibition against "cruel or unusual" punishment, [*1515] requiring trial courts to engage in the specific individual sentencing consideration analysis set forth in Miller as an extension of its traditional proportionality analysis.[11] Or there may be legislation that sets forth that requirement. I suppose it is even possible that the California Judicial Council could, on its own or in the response to a legislative mandate, augment the Rules of Court discussed by the majority to add special sentencing factors for juveniles facing indeterminate sentences.[12] In any event, even in the absence of an Eighth Amendment imperative, it is incumbent upon defense counsel to present mitigating circumstances to the court at the time of sentencing, and there are already mechanisms in the law providing such opportunities. (§ 1204 [defendant entitled to sentencing hearing to present mitigating circumstances, including the introduction [*738] of sworn testimony]; Cal. Rules of Court, rule 4.437 [allowing defendants to file statements in mitigation prior to the sentencing hearing].) Thus, when defense attorneys do their jobs-a job that is no different whether individualized sentencing inquiry is constitutionally mandated or not-no information will be lost and a record will be made for future parole hearings.
In summary, just as the United States Supreme Court banned the imposition of the death penalty on adults without an individualized sentencing inquiry, it also banned the imposition of LWOP on juveniles in homicide cases-the harshest sentence that can be imposed on juveniles-without individualized sentencing consideration. In doing so, the court in Miller added the various attributes of youth to the factors sentencers must consider in the individual sentencing inquiry. The focus of the inquiry mandated by Miller is the question of whether the defendant is irreparably corrupt, such that a sentence of LWOP is warranted. Thus, when considering imposition of an LWOP sentence for a juvenile offender, the Eighth Amendment requires that the trial court consider the factors outlined in Miller. Logically, the same would apply before imposing an indeterminate sentence that is the functional equivalent of LWOP. However, post-S.B. 260, no sentence can be considered the functional equivalent of LWOP. Now, when a juvenile defendant is sentenced to an indeterminate term, S.B. 260 provides a realistic opportunity to demonstrate maturity, rehabilitation and fitness to reenter [*1516] society and thereby obtain release on parole well within any juvenile defendant's expected lifetime. Thus, there is no Eighth Amendment violation if the trial court somehow does not engage in the individual sentencing inquiry required by the Eighth Amendment in adult death penalty cases and juvenile LWOP cases, no matter how long the indeterminate sentence. Consequently, defendants' sentences do not violate the Eighth Amendment.
I would affirm the judgment.
Because Adam and Jesse Cornejo have the same last name, we refer to them by their first names; for consistency, we also refer to Isaac Vasquez by his first name.
Undesignated statutory references are to the Penal Code.
Detective Sample was also the expert in Prunty. He testified about the same two predicate offenses there as he did in this case. (Prunty, supra, 62 Cal.4th at p. 69,
As given to the jury in this case, CALCRIM No. 520 provides: "The defendants are charged in Count One with murder. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant committed an act that caused the death of another person. [¶] Two, when the defendant acted, he had a state of mind called malice aforethought. And, three, he killed without lawful justification. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. A defendant acted with implied malice if, one, he intentionally committed an act. [¶] Two, the natural and probable consequences of that act are dangerous to human life. Three, at the time he acted, he knew his act was dangerous to human life, and, four, he deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill-will toward the victim. It is a mental state that must be formed before the act that causes death is committed. [¶] It does not require deliberation or the passage of any particular period of time."
Undesignated rule references are to the California Rules of Court.
This instruction states in relevant part: "The criminal law has its own particular way of defining cause. A cause of the (result of the crime) is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] [omission] the (result of the crime) and without which the (result of the crime) would not occur." (CALJIC No. 3.40.)
Because Isaac's argument on appeal does not claim a Miranda violation occurred, we do not set forth the parties' arguments regarding this issue.
I do agree with the majority to the extent they suggest that on remand, the trial court's resentencing discretion is limited to reducing the sentence to one that is statutorily authorized. (Maj. opn., ante, p. 714 [noting that the trial court is required to impose 20 years to life on count one and 25 years to life for the firearm enhancement on count one, for a total of 45 years to life on count one, but that the trial court could run the additional sentences for the other counts and their enhancements concurrent to count one].) The trial court cannot simply make up some other sentence-at least not without a mandate and guidance about how to arrive at such a sentence from the United States Supreme Court or the California Supreme Court.
Undesignated statutory references are to the Penal Code.
The Legislature also enacted provisions governing parole hearings for these inmates. Section 3051, subdivision (e), provides that, "The youth offender parole hearing to consider release shall provide for a meaningful opportunity to obtain release. The board shall review and, as necessary, revise existing regulations and adopt new regulations regarding determinations of suitability made pursuant to this section, subdivision (c) of Section 4801, and other related topics, consistent with relevant case law, in order to provide that meaningful opportunity for release." Section 4801, subdivision (c), provides: "(c) When a prisoner committed his or her controlling offense ... prior to attaining 18 years of age, the board, in reviewing a prisoner's suitability for parole pursuant to Section 3041.5, shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." Section 3051, subdivision (f), states in part: "(1) In assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. [¶] (2) Family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the board." (§ 3051, subd. (f).)
The majority writes that the court in Miller noted "its earlier decisions requiring consideration of the mitigating and aggravating factors unique to each case of sentencing for crimes committed as a minor. " (Maj. opn., ante, pp. 718-19, italics added.) But the majority's opinion does not analyze these decisions. Those cases all involved the death penalty, not simply "crimes committed as a minor." And the majority appears to be under the impression that these precedents involved minors, but actually only Eddings involved a minor. (Eddings,
In Roper, the United States Supreme Court held that imposition of the death penalty on juvenile offenders for any offense violates the Eighth Amendment prohibition against cruel and unusual punishment because juveniles have lessened culpability given the attributes of youth and thus are less deserving of the death penalty than adults. (Roper, supra, 543 U.S. at pp. 569, 573-575,
To be sure, a trial court's determination that a defendant is "irreparably corrupt" would be something the Board should consider. Likewise, a trial court's conclusion that a defendant is not "irreparably corrupt" should also be a factor considered by the Board, but this is the extent of the "evaluation" a trial court is required to make under the Eighth Amendment, even if Miller and Caballero still apply after S.B. 260.
The majority opinion could be read as if this entire passage is a quote that originated in Graham,
The only people who are excepted from the mandatory parole provisions are juveniles that are: (1) sentenced to LWOP; (2) sentenced pursuant to the three strikes law in section 1170.12, subdivisions (b) through (i); (3) sentenced pursuant to the habitual offender law in section 667; (4) sentenced pursuant to the one strike law for sexual offenders in section 667.61; and (5) who subsequent to attaining 23 years of age commit an additional crime for which malice aforethought is a necessary element or for which the individual is sentenced to life in prison. (§ 3051, subd. (h); see Sen. Bill No. 261, effective January 1, 2016 (Stats. 2015, ch. 471, § 1 (2015-2016 Reg. Sess.)) [amending S.B. 260 to raise the age in the fifth exception from 18 to 23].)
The recall provisions in section 1170, subdivision (d)(2), are substantively different from the mandatory parole consideration provisions in section 3051. Under subdivision (d)(2)(A)(i) of section 1170, a person who was under age 18 at the time of the commission of the offense and sentenced to LWOP may petition to have the sentence recalled after serving at least 15 years. Nothing happens if the prisoner does not file a petition. Certain defendants are statutorily excluded, regardless of the mitigating circumstances. Those excluded include prisoners who tortured their victims and where the defendant's victim was a public safety official. (§ 1170, subd. (d)(2)(A)(ii).) Also, to qualify, section 1170, subdivision (d)(2)(B), requires that defendant's petition state: (1) the defendant had been convicted of felony murder or aiding and abetting murder; (2) the defendant did not have prior juvenile felony adjudications for assault or other felonies "with a significant potential for personal harm to victims"; (3) the defendant committed the offense with at least one adult codefendant; and (4) "The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse." (§ 1170, subd. (d)(2)(B)(i)-(iv).) If the petition does not include all of this information, the trial court shall return the petition and advise that it cannot be considered without the missing information. (§ 1170, subd. (d)(2)(C).) If the trial court finds by a preponderance of the evidence that statements in the petition are true, then the court must hold a hearing to consider the recall. (§ 1170, subd. (d)(2)(E).) In addition to the facts required for the petition, in deciding whether to grant the petition, the court "may consider" the following facts: (1) prior to the commitment offense, the defendant had "insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress"; (2) the defendant "suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant's involvement in the offense"; (3) the defendant has performed acts that tend to indicate rehabilitation or show evidence of remorse; (4) the defendant has maintained family ties or connections; and (5) the defendant has no disciplinary actions for violent activities in the last five years in which the defendant was the aggressor. (§ 1170, subd. (d)(2)(F)(iv)-(viii).) If the sentence is not recalled, the defendant will have three more opportunities to petition for recall-at 20 years, 24 years, and 25 years of incarceration. (§ 1170, subd. (d)(2)(H).) If the sentence is recalled, the trial court shall have the discretion to resentence the defendant "in the same manner as if the defendant had not previously been sentenced." (§ 1170, subd. (d)(2)(G).)Thus, unlike section 3051, there is no guarantee of an opportunity for parole within the defendant's life expectancy because whether there is such an opportunity depends on the length of the new sentence imposed after the LWOP sentence is recalled. Section 3051, on the other hand, provides a realistic opportunity for parole well within any juvenile defendant's life expectancy.
I realize that our high court said its "approach" in Gutierrez "complements our recent holding in Caballero that a trial court must consider many of the same factors when imposing a sentence on a juvenile nonhomicide offender." (Gutierrez, supra, 58 Cal.4th at p. 1390,
Whereas the Eighth Amendment of the United States Constitution prohibits "cruel and unusual" punishment, article I, section 17 of the California Constitution prohibits infliction of "cruel or unusual" punishment. (Italics added.) The distinction in wording is "purposeful and substantive rather than merely semantic. [Citation.]" (People v. Carmony (2005)
I note that trial courts already have the authority to consider factors not set forth in the rules discussed by the majority. California Rules of Court, rule 4.408(a), authorizes consideration of any additional factors "reasonably related" to the sentencing decision. (People v. Brown (2000)