People v. Garrett ( 2014 )

Filed 6/30/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent, C067436
v. (Super. Ct. No. 08F09401)
VICTOR TYRONE GARRETT,
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, C069886
v. (Super. Ct. No. 08F09401)
ERION DEMONTA VARNADO,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of Sacramento County,
Laurie M. Earl and James P. Arguelles, Judges. Reversed in part and affirmed in part.
Barbara Michel, under appointment by the Court of Appeal, for Victor Tyrone
Garrett, Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts I through VII of the discussion.
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Victor J. Morse, under appointment by the Court of Appeal, for Erion Demonta
Varnado, Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell,
Assistant Attorneys General, Charles A. French, Craig S. Meyers and Daniel
B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
In November 2008, defendants Victor Tyrone Garrett and Erion Demonta Varnado
participated in armed robberies and an attempted armed robbery.1 Both Garrett and
Varnado were 17 years old when the offenses were committed, but were tried as adults.
(Welf. & Inst. Code, § 707, subds. (b)(3) & (c).)
A jury convicted Garrett of six counts of second degree robbery (Pen. Code,
§ 211),2 two counts of kidnapping for robbery (§ 209, subd. (b)(1)), one count of
attempted robbery (§§ 211/664), and one count of assault with a firearm (§ 245,
subd. (a)(2)). For each of the offenses, the jury found true the allegation Garrett
personally used a firearm (§ 12022.53, subd. (b)), and as to the assault with a firearm that
Garrett personally discharged a firearm. (§ 12022.53, subd. (c).) Garrett was sentenced
to serve a total of 74 years and 4 months to life in prison.
Varnado was also convicted by a jury of two counts of second degree robbery, one
count of attempted robbery, and one count of assault with a firearm. The jury also found
true the allegation Varnado personally used a firearm during the assault and attempted
robbery. However, the jury found Varnado not guilty of four counts of robbery. The jury
was unable to reach a verdict as to the two counts of kidnapping to commit robbery, the
allegation Varnado personally used a firearm during the second degree robberies, or he
1 Garrett and Varnado were charged along with Antwaan Edwardo Anderson and
Vance Hicks. Anderson pled guilty before trial, and Hicks admitted his guilt after trial
commenced. Neither Anderson nor Hicks is a party in this appeal.
2 Undesignated statutory references are to the Penal Code.
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discharged a firearm during the attempted robbery. The trial court declared a mistrial as
to the counts and enhancements for which the jury could not reach a verdict.
On retrial, Varnado was convicted of the remaining two counts of second degree
robbery, and the jury found true the allegation he used a firearm during these robberies.
The second jury was not asked to decide whether Varnado discharged a firearm during
the attempted robbery. Varnado was sentenced to serve a total of 31 years to life in
prison.
On appeal, both defendants contend (1) the evidence of asportation was
insufficient to support their convictions of kidnapping for robbery. In a related argument,
Varnado contends (2) the trial court erred in refusing defense counsel’s proposed
instruction informing the jury that “incidental” movement does not amount to kidnapping
for robbery.
Varnado further argues (3) evidence regarding the firing of a gun during the
attempted robbery was improperly admitted during his retrial to prove he used a gun on a
separate occasion, (4) insufficient evidence of intent to commit theft requires reversal of
his attempted robbery conviction, and (5) an unduly suggestive identification procedure
was used to identify him two days after the robbery.
Garrett separately argues that (6) an in-field show up employed by the police
shortly after his arrest was an unduly suggestive identification procedure, (7) his Miranda
rights were violated during his interrogation by the police,3 and (8) his prison sentence of
74 years and 4 months to life constitutes cruel and unusual punishment because he was a
minor at the time of the offenses.
We conclude the defendants’ act of moving the victims of kidnapping for robbery
from where they were standing into the locked trunk of a car sufficed for the asportation
requirement of the offense. Contrary to Varnado’s contention, the trial court was not
3 See Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694; 86 S. Ct. 1602].
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required to give defense counsel’s proposed pinpoint instruction. We also find no error
in the admission of testimony regarding the discharge of a firearm during the attempted
robbery. The evidence was sufficient to establish intent to commit robbery during the
attempted robbery. And, the police did not use an unduly suggestive identification
procedure two days after Varnado’s arrest.
As to Garrett’s separate claims, the in-field show up did not constitute an unduly
suggestive identification procedure. And, the police did not violate his Fifth Amendment
rights because Garrett knowingly and voluntarily waived his rights after being given a
Miranda advisement. However, we conclude Garrett’s sentence of 74 years and 4
months to life in state prison requires remand for resentencing under the guidance of the
California Supreme Court in People v. Caballero (2012) 55 Cal. 4th 262 (Caballero).
Accordingly, we affirm the judgment as to Varnado. We affirm Garrett’s
convictions, but reverse and remand for resentencing.
BACKGROUND
Robberies of Kilgore, Cheatham, Douglas, and Cordero (Counts 1-4)
At approximately 9:00 p.m. on November 15, 2008, Jaquan Cheatham and Lonnie
Kilgore were walking to a 7-Eleven store. Two males with guns approached Cheatham
and instructed him to empty his pockets. Cheatham heard the cocking of a gun and
turned over his school identification and telephone. Cheatham gave the robbers his pants
so they would know he had turned over everything. Kilgore also took off clothing and
handed it to the robbers.
Thomas Douglas and Alexis Cordero were nearby and watched Cheatham and
Kilgore get robbed. Cordero explained she initially saw a black car with three male
occupants. Cordero then “had a bad feeling” and turned around to see two of the males
“attack” a boy behind her. The robbers brandished guns and took everything from the
boy –- even his clothes.
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Fearing the robbers would attack her group too, Cordero told her friends to run
away. Cordero and Douglas hid behind a nearby van. When the same black car drove
by, Cordero heard someone from the car tell them to come out from behind the van.
Cordero and Douglas did so with their hands up. One of the robbers instructed, “Lean up
against the garage and give us everything that you have.” The same two robbers that had
attacked the boy appeared with guns drawn and took Cordero’s shoes, jacket, money, cell
phone, and chain. Douglas gave the robbers his necklace and wallet.
At approximately 3:00 a.m. on November 28, 2008, Sacramento County Sheriff’s
Deputy Michael Putnam drove Cheatham, Kilgore, Areél Robinson, and Markeisha
DeMyers to view suspects who had been arrested in Elk Grove. Although Detective
Mark Bearor at the Elk Grove Police Department planned to line the witnesses up in a
hallway face-to-face with the suspects, the witnesses refused the proposed procedure.
Instead, the four witnesses observed the suspects from a patio area through a plate glass
window at a distance of 15 to 25 feet. Deputy Putnam led the witnesses, one at a time, to
the patio area where they viewed the suspects.
As to the defendants in this appeal, Cheatham stated with certainty Varnado was
one of the males who robbed him. However, Cheatham was not able to identify Garrett.
DeMyers identified Varnado but not Garrett. The record does not indicate what
identifications, if any, were made by Kilgore or Robinson.
Kidnapping for Robbery of Gutierrez and Gribben (Counts 5-8)
Abel Gutierrez and Sheila Gribben went on their first date together on
November 18, 2008. Shortly after midnight on November 19, 2008, they returned from
the movies to Gribben’s apartment complex in Sacramento. They talked next to
Gutierrez’s car for approximately 30 minutes when he noticed a champagne color car
with four males wearing black sweaters. Gutierrez mentioned to Gribben that
“something wasn’t right.” Gutierrez lost sight of the car behind a hill, but soon saw the
four occupants walking by him and Gribben. One of the males pointed a long, silver
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revolver at Gutierrez’s head and instructed him to take off his clothes. Gutierrez refused
and was then told to empty his pockets. Eventually, Gutierrez took out his cell phone,
wallet, and keys, and handed them over. The male with the gun then patted Gutierrez
down to see if he had turned over everything. Gutierrez was then told to hand over the
pea coat he was wearing.
The robbers then told Gutierrez to sit down on a curb. While Gutierrez watched,
the males took some earrings and keys from Gribben. Gutierrez told them to let Gribben
go. The male with braids in his hair responded, “She’s not going anywhere.” Gribben
complied with an instruction to sit next to Gutierrez on the curb.
The robbers took Gutierrez’s keys and attempted to open the trunk of his car.
Unable to do so, they told Gutierrez to unlock his trunk. Gutierrez unlocked the trunk by
pushing a button inside the passenger compartment. The robbers told Gutierrez to give
them the subwoofer speakers he had in the trunk. But Gutierrez explained they could not
easily be removed because they were wired to the car. The male with braids responded,
“We’ll just take the whole damn car.” He then told Gutierrez to get into the trunk.
Gutierrez feared the males would end up killing them if he and Gribben got into
the trunk. Hoping to avoid getting into the trunk, Gutierrez told them “just to take off
and leave, that they had taken everything we had and weren’t going to do anything; that if
we were going to try anything we would have done that before any of that had
happened.” The male with braids responded, “Are you trying to die tonight?” The males
called Gribben over and put her into the trunk with Gutierrez. They slammed the trunk
twice on Gutierrez’s head when trying to close it and succeeded in closing it on the third
try. Gutierrez worried they would not be able to get out.
Gutierrez and Gribben heard the robbers rummaging through the car for a few
minutes before they left. Gribben began to panic and Gutierrez tried to calm her down.
After hearing the robbers run away, Gutierrez and Gribben waited for a few minutes
before Gutierrez began to tear away the lining of the trunk. Gutierrez and Gribben
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shouted for help. Approximately 5 to 10 minutes later, Gribben’s housemate let them out
and called the police. Gutierrez discovered an iPod and headphones had been taken from
the interior of the car. Gribben’s watch and camera also had been taken.
Several hours later, Sacramento Police Officer Wesley Nezik received word a
vehicle matching the descriptions given by Gutierrez and Gribben had been located.
Officer Nezik contacted Gutierrez and Gribben and transported them to the Elk Grove
area where the vehicle had been found. Gutierrez immediately recognized the car as the
one in which he had seen the robbers. Gutierrez and Gribben also recognized items
stolen from them.
Officer Nezik then drove Gutierrez and Gribben to an in-field show up at the Elk
Grove Police Department. Officer Nezik testified: “[O]n the way to the police
department, I explained to them that there were people who were being detained. They
may or may not be related to their situation from the previous robbery that happened
there. They may or may not be in handcuffs. If they are, it’s for our safety and for
theirs.” At the police station, Gutierrez and Gribben were escorted inside but indicated
they were scared about the prospect of meeting the robbers face to face. Officer Nezik
led them outside and allowed them to sit in the backseat of the patrol vehicle. The officer
testified it was not “an ideal way to do it” but he was the only police officer available to
do a field show-up. The patrol car lights were turned on and the suspects were brought
into the light one at a time. Given the unusual nature of the field show-up, Officer Nezik
instructed Gutierrez and Gribben not to discuss the suspects between themselves. The
victims agreed.
As to the defendants in this appeal, Gribben stated about Varnado that he had “a
similar haircut” to one of the robbers. By contrast, Gutierrez “stated that he did
recognize the hair [on Varnado] because it was very distinct because the braids were
sticking up in the air.” Neither Gutierrez nor Gribben recognized the second suspect,
Vance Hicks. When Anderson was brought out, Gribben stated: “That’s him. He was
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the one pointing the gun at me demanding my stuff” and one of the males who told them
to get into the trunk. Gutierrez also “seemed very confident” in identifying Anderson.
When Garrett was brought out, Gribben was “not sure about him.” Gutierrez said Garrett
“looked familiar and that someone there on scene was wearing . . . similar clothing.”
Assault and Attempted Robbery of Mangano (Counts 9-10)
Early in the morning on November 18, 2008, John Mangano delivered newspapers
by car in Elk Grove. Mangano had just gotten back into his vehicle when a “silverfish
color” car pulled diagonally in front of his car “and blocked [him] off.” Mangano noticed
three doors open and three males got out of the car. Mangano asked, “Well, what’s going
on?” He then observed the male behind the driver holding a black revolver at waist level.
Mangano threw his car into reverse, ducked down, and began to drive away. Before he
ducked, Mangano caught a glimpse of four males from the car.
Mangano had driven approximately 20 to 25 feet when he heard a gunshot. When
Mangano next looked up, he saw two of the males were holding guns “like in the
gangster movies” and heard additional shots ring out. Once Mangano had gotten 40
yards away, he looked up again and saw the males get back into their car. As the car
drove away on Elk Grove Boulevard, Mangano decided to follow it. While following the
car, Mangano called the police with his cell phone. Elk Grove Police Officers Shane
Glaser and Robert Barnes responded to the call in their patrol cars. Matching the
description of the suspect vehicle and location was a gray, four-door Pontiac Grand Am.
The officers pulled the car over and arrested the four occupants: Varnado, Garrett, Hicks,
and Anderson.
A search of the suspect vehicle turned up two handguns, four spent casings, an
iPod, headphones, four cell phones, keys, and a purple digital camera, several purses, and
a black jacket.
After his arrest, Garrett was interviewed by the police. Garrett admitted he was
riding with Varnado, Hicks, and Anderson. Along with him, Garrett had a gun he had
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stolen from his grandfather a few weeks earlier. Garrett’s hands were tested for gunshot
residue. The test indicated Garrett had recently “fired a weapon, was near a weapon
when it was fired, or handled a fired weapon or fired ammunition.”
Defense Evidence
Garrett introduced evidence he was at his house on the evening of November 15,
2008, when Kilgore, Cheatham, Douglas, and Cordero were robbed. Garrett’s sister,
Victoria Garrett, testified he had been present the entire time at a family barbecue that
lasted until 1:00 or 2:00 in the morning. This testimony was corroborated by a friend of
Garrett’s and by a neighbor who testified Garrett had been present at the barbecue.
Varnado introduced the testimony of Dr. William Shomer, an expert on witness
identification, perception, and memory. Dr. Shomer testified that (1) “people are highly
unreliable with respect to cognition of strangers,” (2) people overestimate their certainty
of identification when suspects have similar appearances, (3) cross-racial identifications
tend to be “far less accurate” (4) the stress of being assaulted by a weapon has an adverse
affect on the ability to remember accurately, and (5) the identification procedure
employed can make a significant difference in outcomes.
Varnado’s Retrial
Varnado was retried after the first jury was unable to reach a verdict on the counts
of kidnapping for robbery against Gutierrez and Gribben or on the allegations of personal
firearm use against Gutierrez and Gribben. As pertinent to the issues raised on appeal by
Varnado, the evidence at the second trial showed the robbers made Gribben sit on the
curb about 10 feet from Gutierrez’s car during the robbery. Gutierrez did not sit, but
stood next to Gribben. According to Gribben, the robbers did not move them to the curb.
Instead, Gribben and Gutierrez were already standing there when the robbery started.
The robbers told Gutierrez to open his car trunk. When the robbers saw the
subwoofer speakers inside they tried to remove them, but were unsuccessful. They
debated stealing the car. The robbers then told Gutierrez to get into the trunk. The
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robbers then instructed Gribben to get up from the curb and climb into the trunk with
Gutierrez. The robbers twice slammed the trunk onto Gutierrez’s head before they were
able to close the trunk.
DISCUSSION
I
Garrett and Varnado’s Arguments Regarding Insufficiency of the Evidence Regarding
Kidnapping for Robbery
Garrett and Varnado contend the evidence was insufficient to convict them of
kidnapping for robbery because of the insignificant distance Gutierrez and Gribben were
moved during the robbery. Specifically, Garrett and Varnado argue the asportation
requirement of kidnapping for robbery was not met for either victim. We disagree.
A.
Standard of Review
The standard of review for insufficiency of the evidence is well established. In
reviewing a claim of evidentiary insufficiency, we “view the evidence in the light most
favorable to the judgment and must presume in support of that judgment every fact that
the trier of fact could reasonably deduce from the evidence. [Citations.] To survive an
insufficiency of evidence challenge, the evidence must be substantial enough to support
the finding of each essential element of the crime and special circumstance. Substantial
evidence is that which is reasonable, credible and of solid value. The trier of fact weighs
the evidence presented, resolves conflicts in the testimony and draws reasonable
inferences from the facts before it. If its findings are reasonable and supported by the
evidence, reversal of the conviction or of the special circumstances finding is not
warranted even if a contrary finding might also be reasonable.” (People v. Johnson
(1992) 5 Cal. App. 4th 552, 558; accord People v. Rodriguez (1999) 20 Cal. 4th 1, 11.)
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B.
Evidence of the Victims’ Movement
Although labeled by Garrett and Varnado as insufficiency of the evidence
arguments, the gravamen of their contentions is this: the short distance the robbers
moved Gutierrez and Gribben from the curb to the inside of the car trunk was insufficient
as a matter of law to sustain a conviction of kidnapping for robbery. Neither Garrett nor
Varnado disputes they moved Gutierrez and Gribben from where they were standing near
the car, made the victims get into the trunk of the car, and then closed the trunk to lock
the victims inside.4 Instead, Garrett and Varnado contend the distance involved in
Gutierrez’s and Gribben’s robbery was too short as a matter of law to meet the minimum
requirements of the asportation element of kidnapping for robbery.
Even though Varnado’s conviction for two counts of kidnapping for robbery rests
on the evidence presented at his retrial, he does not point to any meaningful difference on
this issue between the evidence presented at the first trial –- which resulted in Garrett’s
conviction on the two counts of kidnapping for robbery –- and that presented at the
second trial in which Varnado was convicted. Our review of both trials shows
consistency in that the robbers moved Gutierrez and Gribben from the nearby curb to the
rear of the car, had them get into the trunk, and then closed them inside.
C.
Kidnapping for Purposes of Robbery (§ 209, subd. (b)(1))
Subdivision (a) of section 207 defines kidnapping as follows: “Every person who
forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or
arrests any person in this state, and carries the person into another country, state, or
4 Although the testimony at Varnado’s retrial indicated the robbers moved Gribben
approximately 5 to 10 feet from the curb to the trunk of the vehicle, the testimony at
Garrett’s trial does not indicate the distances involved except to note Gutierrez and
Gribben were moved from where they were standing/sitting into the trunk.
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county, or into another part of the same county, is guilty of kidnapping.” As the
California Supreme Court recently noted, “Section 209, subdivision (b)(1) prescribes
greater punishment for aggravated kidnapping where the accused ‘kidnaps or carries
away any individual to commit robbery. . . .’ Kidnapping for robbery requires
asportation, i.e., movement of the victim that is not merely incidental to the commission
of the robbery and that increases the risk of harm over that necessarily present in the
crime of robbery itself. (§ 209, subd. (b)(2); People v. Rayford (1994) 9 Cal. 4th 1, 12.)”
(People v. Delgado (2013) 56 Cal. 4th 480, 487.)
The test for whether the movement of the victim suffices for a kidnapping for
robbery conviction was articulated in People v. Daniels (1969) 71 Cal. 2d 1119 (Daniels).
In Daniels, “the court concluded that . . . section 209 not only excluded ‘standstill’
robberies from its scope, ‘but also those in which the movements of the victim are merely
incidental to the commission of the robbery and do not substantially increase the risk of
harm over and above that necessarily present in the crime of robbery itself.’ (Daniels,
supra, 71 Cal.2d at p. 1139.) In other words, Daniels ‘construed [the aggravated
kidnapping statute] to preclude convictions based on movement of the victim that is
criminologically insignificant.’ ” (In re Crumpton (1973) 9 Cal. 3d 463, 466.)
Determining whether the evidence showed sufficient asportation for kidnapping
for robbery requires two considerations: “First, ‘ “[i]n determining ‘whether the
movement is merely incidental to the [underlying] crime . . . the jury considers the “scope
and nature” of the movement. [Citation.] This includes the actual distance a victim is
moved. However, . . . there is no minimum number of feet a defendant must move a
victim in order to satisfy the first prong.’ [Citations.]” [Citations.]’ (People v.
Washington (2005) 127 Cal. App. 4th 290, 297.) ‘Incidental’ means ‘that the asportation
play no significant or substantial part in the planned [offense], or that it be a more or less
“ ‘trivial change[] of location having no bearing on the evil at hand.’ ” ’ (People v. Ellis
(1971) 15 Cal. App. 3d 66, 70.) ‘ “ ‘The second prong of the Daniels test refers to whether
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the movement subjects the victim to a substantial increase in risk of harm above and
beyond that inherent in [the underlying crime]. [Citations.] This includes consideration
of such factors as the decreased likelihood of detection, the danger inherent in a victim’s
foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit
additional crimes. [Citations.] The fact that these dangers do not in fact materialize does
not, of course, mean that the risk of harm was not increased. [Citations.]’ [Citations.]”
[Citation.]’ (People v. Washington, supra, 127 Cal.App.4th at p. 297.) The two elements
of the test are related; ‘whether the victim’s forced movement was merely incidental to
the [underlying offense] is necessarily connected to whether it substantially increased the
risk to the victim.’ (People v. Dominguez (2006) 39 Cal. 4th 1141, 1152.) ‘[E]ach case
must be considered in the context of the totality of its circumstances.’ (Ibid.)” (People v.
James (2007) 148 Cal. App. 4th 446, 453-454.)
D.
The Movement of the Victims into the Trunk of the Car Sufficed
As to Gutierrez, we conclude the robbers’ moving him from the curb to the car
was incidental to the robbery. Gutierrez had been standing at the curb when the robbers
tried unsuccessfully to open the trunk of his car. When the robbers told Gutierrez to open
the trunk, he went to the car and complied. The robbers attempted to take the subwoofer
speakers from the trunk. However, Gutierrez told them they could not be easily removed
because they were wired to the car. Up to this point, the robbers moved Gutierrez to
facilitate their theft of property from Gutierrez and his car. Consequently, the distance
Gutierrez traveled from the curb to his car and movement around his vehicle does not
accrue to the asportation requirement of kidnapping for robbery. (People v. Dominguez,
supra, 39 Cal.4th at p. 1152.)
However, the robbers’ act of forcing Gutierrez to get into the trunk was not
incidental to the robbery. As Gutierrez told the robbers at the time, they had taken
everything from him and Gribben without resistance. Placing Gutierrez into the trunk did
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not enable the robbers to take anything. Consequently, we must consider whether
moving and locking Gutierrez into the trunk of his car constituted sufficient movement to
meet the asportation requirement of kidnapping for robbery.
The distance from outside the trunk to its interior was not far. However, the
California Supreme Court has made clear that kidnapping for robbery requires no
minimum distance a defendant must move a victim. (People v. Vines (2011) 51 Cal. 4th
830, 870.) Thus, we proceed to consider the additional factors informing the test for
sufficient asportation. (Daniels, supra, 71 Cal.2d at p. 1139.) On balance, these factors
lead us to conclude the evidence was sufficient to convict Garrett and Varnado of kidnap
for robbery. Moving Gutierrez and Gribben into the trunk and locking them inside
increased the risks of harm beyond the risks of armed robbery. Even aside from the fact
Gutierrez was actually hurt when the robbers twice slammed the trunk on his head, the
confinement increased the risks to both victims. Gutierrez feared getting inside the trunk
because he thought the robbers would kill him if he complied. This fear is
understandable because the robbers could have driven the victims to a remote location
where additional crimes would likely have gone unobserved. Gutierrez had to destroy
part of his car before he could yell for help. Thus, moving the victims into the locked
trunk substantially increased the risks to Gutierrez and Gribben that arose from
concealment, physical confinement, and sound insulation.
Conversely, the robbers enhanced their opportunity to commit additional crimes
by locking the victims into the trunk of a car to which the robbers had the keys. Thus, the
robbers facilitated additional thefts from Gutierrez’s car and increased their chances of
evading notice when departing the crime scene.
Inside the locked trunk, the victims were subjected to enhanced risks even if the
car remained stationary. Such risks included possible injury due to attempts to break out
and adverse conditions of deprivation if they had failed to escape. Gribben panicked
while in the trunk. She testified she thought to herself: “I was going to die.” Locking
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Gutierrez and Gribben inside the trunk decreased the likelihood of detection. Moreover,
the robbers restrained the victims in a space from which they were unable to escape by
themselves. Gutierrez and Gribben were freed only after a friend happened to hear them
banging and yelling after she had turned off her television.
By moving Gutierrez and Gribben into the trunk of the car, the robbers sufficiently
increased the risks to the victims that the movement satisfied the asportation requirement
of kidnapping for robbery. We conclude the evidence supported Garrett and Varnado’s
convictions of kidnapping for robbery.
II
Varnado’s Request for a Pinpoint Instruction on Movement Necessary for Kidnapping
for Robbery
In a challenge related to the claim the evidence was insufficient to sustain the
kidnapping for robbery convictions, Varnado contends the trial court erred in refusing his
request to instruct the jury that movement of a victim can be merely incidental to the
robbery even if the movement is not necessary for the robbery. We conclude the trial
court did not err in refusing to give this instruction.
A.
Jury Instructions Given on Kidnapping for Robbery
During Varnado’s retrial, the court instructed jurors on kidnapping for robbery by
giving CALCRIM No. 1203. As to the count alleged for the offense against Gribben, the
trial court instructed:
“To prove that the defendant is guilty of this crime, the People must prove that:
[¶] 1. The defendant intended to commit robbery; [¶] 2. Acting with that intent, the
defendant took, held, or detained Sheila Gribben by using force or by instilling a
reasonable fear; [¶] 3. Using that force or fear, the defendant moved Sheila Gribben or
made Sheila Gribben move a substantial distance; [¶] 4. Sheila Gribben was moved or
made to move a distance beyond that merely incidental to the commission of a robbery;
[¶] 5. When that movement began, the defendant already intended to commit robbery,
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and [¶] 6. Sheila Gribben did not consent to the movement. [¶] As used here,
substantial distance means more than a slight or trivial distance. The movement must
have substantially increased the risk of physical or psychological harm to the person
beyond that necessarily present in the robbery. In deciding whether the movement was
sufficient, consider all the circumstances relating to the movement.”
The trial court used the same instruction for the additional count of kidnapping for
robbery, substituting only Gutierrez’s name for Gribben’s.
In instructing the jury with CALCRIM No. 1203, the trial court rejected a request
by defense counsel for a pinpoint instruction as follows: “Movement can be incidental to
the robbery, even if the movement is not necessary for the robbery.” As the trial court
noted, the defense drew the language of the requested pinpoint instruction from the case
of People v. Hoard (2002) 103 Cal. App. 4th 599. The trial court refused to give the
pinpoint instruction, questioning the continuing validity of Hoard and finding it would
confuse the jury.
B.
Pinpoint Instructions Need Not be Given when Redundant to Other Instructions
“ ‘A criminal defendant is entitled, on request, to instructions that pinpoint the
theory of the defense case.’ (People v. Gutierrez (2002) 28 Cal. 4th 1083, 1142.)
Specifically, a criminal defendant ‘is entitled to an instruction that focuses the jury’s
attention on facts relevant to its determination of the existence of reasonable doubt. . . .’
(People v. Johnson (1992) 3 Cal. 4th 1183, 1230.) But where standard instructions fully
and adequately advise the jury upon a particular issue, a pinpoint instruction on that point
is properly refused.” (People v. Canizalez (2011) 197 Cal. App. 4th 832, 856-857.) Thus,
“[w]e bear in mind that ‘ “ ‘ “[w]hether a jury has been correctly instructed is not to be
determined from a consideration of parts of an instruction or from particular instructions,
but from the entire charge of the court.” ’ ” ’ (People v. Tapia (1994) 25 Cal. App. 4th
984, 1027.)” (People v. Hughes (2002) 27 Cal. 4th 287, 360.)
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C.
Varnado’s Proposed Pinpoint Instruction
We agree with the trial court that the pinpoint instruction requested by Varnado’s
trial counsel was redundant and confusing. First, the proposed pinpoint instruction
merely advised the jury not every movement of a robbery victim would necessarily turn
the crime into kidnapping for robbery. CALCRIM No. 1203, as given here, sufficiently
informed the jury kidnapping for robbery of Gribben and Gutierrez required the victims
to have been “moved or made to move a distance beyond that merely incidental to the
commission of a robbery” and the distance “must have substantially increased the risk of
physical or psychological harm to the person beyond that necessarily present in the
robbery.” Thus, CALCRIM No. 1203 apprised the jury something more than trivial
movement was necessary to convict Varnado of kidnapping for robbery. Had the trial
court also instructed –- as Varnado requested –- incidental movement during commission
of the robbery did not automatically turn the offense into kidnapping for robbery, such
additional instruction would have been redundant.
More than simply adding information about the asportation element of kidnapping
for robbery, Varnado’s requested pinpoint instruction would likely have confused the
jury. Telling the jury that “[m]ovement can be incidental to the robbery, even if the
movement is not necessary for the robbery” would unnecessarily create a categorical
morass for the jury by suggesting different types of movement during a robbery, i.e.,
movement that is necessary to the robbery, movement that is not necessary to the robbery
but incidental to the robbery, and movement incidental to the robbery. Quite simply,
movement during the robbery either substantially increases the risk to the victim beyond
that necessary to commit the robbery or it does not substantially increase the risk to the
victim. (CALCRIM No. 1203; People v. Delgado, supra, 56 Cal.4th at p. 487.) This
clear distinction between robbery and kidnapping for robbery would have been muddled
if the defense’s pinpoint instruction would have been given. Accordingly, the trial court
17
properly refused the pinpoint instruction to give CALCRIM No. 1203 to instruct on
kidnapping for robbery.
III
Varnado’s Challenge to the Admission of Evidence at his Retrial Regarding Shots
Fired at Mangano
Varnado contends the trial court erred in admitting evidence from the first trial
about shots fired at Mangano during Varnado’s retrial on the offenses committed against
Gutierrez and Gribben. We reject the contention.
A.
Trial Court Ruling
During Varnado’s retrial, the prosecution relied on Evidence Code sections 452.5
and 1101, subdivision (b), in moving to introduce evidence Varnado had been previously
convicted of the attempted robbery of Mangano. The trial court exercised its discretion
under Evidence Code section 352 to exclude evidence of defendant’s prior conviction.
However, over the objection of defense counsel, the trial court allowed testimony
Varnado had previously fired shots at Mangano as evidence of a common scheme or
plan.
B.
Admission of Evidence Showing Common Scheme or Plan
Under Evidence Code section 1101, subdivision (b), the trial court may admit
“evidence that a person committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit such an
act.” Thus, “ ‘[e]vidence of a common design or plan is admissible to establish that the
defendant committed the act alleged. Unlike evidence used to prove intent, where the act
is conceded or assumed, “[i]n proving design, the act is still undetermined. . . .”
18
[Citation.]’ (People v. Ewoldt [(1994)] 7 Cal.4th at p. [394], fn. 2, italics in original.) To
establish a common design or plan, the evidence must demonstrate not merely a
similarity in the results, but ‘ “such a concurrence of common features that the various
acts are naturally to be explained as caused by a general plan of which they are the
individual manifestations.” [Citation.]’ (Id. at p. [393].)” (People v. Balcom (1994) 7
Cal. 4th 414, 423-424 (Balcom).) “Although an uncharged offense need not possess
unusual or distinctive characteristics to be relevant to establish the existence of a common
design or plan, the presence of unusual or distinctive shared characteristics may increase
the probative value of such evidence for this purpose.” (Id. at p. 425.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time. (People v. Dyer (1988) 45 Cal. 3d
26, 73.) Where, as here, a discretionary power is statutorily vested in the trial court, its
exercise of that discretion ‘must not be disturbed on appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]’ (People v. Jordan (1986) 42
Cal. 3d 308, 316.)” (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124-1125.)
C.
Common Scheme to Commit Robberies
The crimes committed by Varnado against Gutierrez and Gribben and then against
Mangano were separated by only a few hours. As the California Supreme Court has
noted, a “close proximity in time of the uncharged offenses to the charged offenses
increases the probative value of this evidence.” (Balcom, supra, 7 Cal.4th at p. 427.)
Varnado and his accomplices robbed Gutierrez and Gribben using the same car to drive
up to Mangano. In both instances, the robbers used handguns.
The robberies and attempted robbery were part of the same crime escapade that
focused on robbing isolated individuals late at night. As parts of the same crime spree,
19
the trial court did not err in admitting evidence of the attempted robbery of Mangano
during the trial on the robbery of Gutierrez and Gribben. Thus, we reject Varnado’s
contention the evidence of Mangano’s attempted robbery was irrelevant and unduly
prejudicial. The crimes were sufficiently related in time and manner of execution to
render the evidence of the Mangano attempted robbery relevant and probative. (Evid.
Code, § 1101, subd. (b).)
We also reject defendant’s assertion the Mangano attempted robbery provided
unduly inflammatory evidence because “the perpetrators recklessly fired multiple shots at
Mangano and his car even as it became clear they would be unable to stop him from
fleeing.” The testimony regarding the shots fired was brief and not substantially more
inflammatory than the threat to kill Gutierrez while a gun was pointed at his head, or
Gribben’s emotional testimony about her belief she was going to die when the robbers
made her get into the trunk. Evidence Code section 352 did not require exclusion of
evidence regarding the Mangano attempted robbery. The Mangano attempted robbery
was carried out with sufficiently similar reliance on firearms to prevent it from being
more prejudicial than probative or more inflammatory than the testimony given by
Gutierrez and Gribben. (People v. Ewoldt (1994) 7 Cal. 4th 380, 403 [evidence of
ongoing pattern warrants admission of uncharged misconduct evidence and is less likely
to be unduly prejudicial as the similarity between the offenses increases].)
The trial court did not err in allowing evidence of the attempted robbery
committed as part of the same crime spree as the Gutierrez and Gribben robberies for the
limited purpose of showing a common scheme or plan.
IV
Varnado’s Argument Regarding Sufficiency of the Evidence for Attempted Robbery
Varnado contends we must reverse his attempted robbery conviction because the
evidence failed to prove he had an intent to rob Mangano or made any effort to rob him.
In so arguing, Varnado concedes the evidence presented at trial showed he and his
20
accomplices pulled their vehicle in front of Mangano’s car while it was parked on a rural
road, and then fired shots at him as he sped away. This evidence, Varnado argues, fails
to show he attempted to rob Mangano. Reviewing the record as a whole, we reject the
argument.
A.
Standard of Review
As we explained in part I A., ante, when considering a challenge to the sufficiency
of the evidence, “the court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence that is, evidence
which is reasonable, credible, and of solid value such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26
Cal. 3d 557, 578, italics added.)
B.
Attempted Robbery
On the charge of attempted robbery of Mangano, the People had the burden of
proving “specific intent to commit robbery and a direct, ineffectual act (beyond mere
preparation) toward its commission.” (People v. Medina (2007) 41 Cal. 4th 685, 694.)
Varnado contends the evidence failed to establish he had the intent to rob Mangano or he
engaged in any overt act for the offense. We disagree.
As to the element of intent, Varnado concedes that “at least one or more of the
occupants of the car had engaged in robberies of other victims.” Varnado thus refers to
evidence that the occupants of the same car that drove up to Mangano had only a few
hours earlier engaged in the robberies of Gutierrez and Gribben. Although Varnado’s
first jury was unable to reach a verdict as to whether Varnado participated in the robbery
of Gutierrez and Gribben, the evidence was sufficient for Garrett to be convicted of those
robberies during the first trial. However, the evidence did show Varnado was riding in
21
the same backseat with Garrett and in the same car as two other perpetrators of the
robberies of Gutierrez and Gribben only several hours after those robberies.
The evidence presented at Varnado’s first trial also showed he robbed Cheatham,
Kilgore, Douglas, and Cordero only three days before the incident involving Mangano.
The offenses committed against Cheatham, Kilgore, Douglas, and Cordero on November
15, 2008, involved the robbers –- including Varnado –- driving up to the victims and
threatening them at gunpoint in order to take their personal possessions.
The evidence of the prior robberies of Cheatham, Kilgore, Douglas, and Cordero
sufficed to support a conviction for attempted robbery of Mangano. The California
Supreme Court has “long recognized ‘that if a person acts similarly in similar situations,
he [or she] probably harbors the same intent in each instance’ ([People v.] Thompson
[(1980)] 27 Cal.3d [303,] 319; People v. Pendleton (1979) 25 Cal. 3d 371, 376–378;
People v. Schader (1969) 71 Cal. 2d 761, 777; [People v.] Kelley [(1967)] 66 Cal. 2d 232,
242–243), and that such prior conduct may be relevant circumstantial evidence of the
actor’s most recent intent. The inference to be drawn is not that the actor is disposed to
commit such acts; instead, the inference to be drawn is that, in light of the first event, the
actor, at the time of the second event, must have had the intent attributed to him [or her]
by the prosecution.” (People v. Robbins (1988) 45 Cal. 3d 867, 879, superseded by
statute on another ground as noted in People v. Jennings (1991) 53 Cal. 3d 334, 387,
fn. 13.)
The evidence at trial showed the same plan –- to drive up to victims and rob them
at gunpoint –- was employed against Mangano. The only difference from the earlier
robberies is Mangano was able to escape and the robbers discharged their weapons.
However, these differences do not undermine the jury’s conclusion Varnado and his
accomplices intended to rob Mangano. Moreover, the robbers’ pulling their car in front
of Mangano’s and brandishing their weapons constituted overt acts toward a robbery that
22
was ineffectual solely due to the victim’s ability to speed away. We conclude the
evidence sufficed to show Varnado’s intent to rob Mangano.
V
Varnado’s Challenge to Identification Procedure
Varnado argues the suggestive nature of single-photo identifications should have
disallowed testimony by the detective who, two days after the robbery, showed Gutierrez
a photo of Varnado. We disagree.
A.
Defendant’s Burden to Establish that Identification Procedures are Unduly Suggestive
A criminal conviction may not stand when based on identification of the
perpetrator resulting from an unduly suggestive identification procedure. As the
California Supreme Court has previously explained, “ ‘In order to determine whether the
admission of identification evidence violates a defendant’s right to due process of law,
we consider (1) whether the identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable
under the totality of the circumstances, taking into account such factors as the opportunity
of the witness to view the suspect at the time of the offense, the witness’s degree of
attention at the time of the offense, the accuracy of his or her prior description of the
suspect, the level of certainty demonstrated at the time of the identification, and the lapse
of time between the offense and the identification . . . . [Citations.]’ ” (People v.
Cunningham (2001) 25 Cal. 4th 926, 989.)
“ ‘[D]efendant has the burden of showing that the identification procedure was
unduly suggestive and unfair “as a demonstrable reality, not just speculation.” [Citation.]
A due process violation occurs only if the identification procedure is “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
[Citation.]’ ‘We have held that an identification procedure is considered suggestive if it
“caused defendant to ‘stand out’ from the others in a way that would suggest the witness
23
should select him [or her].” [Citation.]’ (People v. Cook (2007) 40 Cal. 4th 1334, 1355.)
If the defendant fails to show that the identification procedures were unduly suggestive,
we need not address any arguments regarding the identifications’ reliability under the
totality of the circumstances. (People v. Cook, supra, 40 Cal.4th at p. 1355; People v.
Cunningham, supra, 25 Cal.4th at p. 989.)” (People v. Johnson (2010) 183 Cal. App. 4th
253, 271-272.) We independently review “ ‘a trial court’s ruling that a pretrial
identification procedure was not unduly suggestive.’ ” (People v. Avila (2009) 46 Cal. 4th
680, 698-699, quoting People v. Kennedy (2005) 36 Cal. 4th 595, 609.)
B.
Detective Bearor’s Inquiry into the Offenses during his Meeting with Gutierrez
Detective Bearor testified he took the photos of Varnado, Garrett, Hicks, and
Anderson as part of his regular routine because of “the importance of the person’s
appearance at the time of their arrest.” Thus, Detective Bearor photographed Varnado as
he appeared when Gutierrez identified him as one of the robbers only several hours after
the robbery.
On November 20, 2009, two days after the robbery, Detective Bearor called
Gutierrez to come to the police station to retrieve his stolen property. When he met with
Gutierrez, Detective Bearor asked about the robbers’ purpose in locking Gutierrez and
Gribben into the trunk. Detective Bearor also asked whether Gutierrez remembered the
suspects from the in-field show up, and Gutierrez replied affirmatively. Detective Bearor
showed Gutierrez the photographs, and Gutierrez recognized the suspects. Upon seeing
the photos, Gutierrez explained he recognized Hicks as standing near the robbers’ car;
Anderson was wearing a red do-rag, Varnado was armed with a western-style handgun,
and Garrett was standing near the rear bumper of Gutierrez’s car.
The photograph shown by Detective Bearor reflected how Varnado looked at the
time Gutierrez identified him. The photograph did not change Varnado’s appearance,
such as by showing him dressed in jail-issued clothing, or in any other manner to suggest
24
he was one of the robbers. Detective Bearor testified he showed the photographs of the
suspects to ask about how the offenses were committed –- rather than about who
committed the offenses. Moreover, there is no evidence Detective Bearor expressed any
opinion about whether the suspects were actually the robbers. Under these
circumstances, we conclude the detective’s use of Varnado’s post-arrest photo was not
unduly suggestive.
VI
Garrett’s Challenge to Identification Procedures
Garrett also contends his convictions for robbery must be reversed because the
police employed unduly suggestive procedures to allow the victims to identify him. 5 We
disagree.
Garrett asserts he was identified “by means of improper and overly suggestive
identification procedures.” In support of his argument, Garrett describes the facts
surrounding his identification by the victims and witnesses involved with the November
15, 2008, robberies. Garrett also recounts his identification by Gutierrez and Gribben for
his part in the November 18, 2008, robberies. This factual recitation is followed by a
general discussion of the law as it relates to the constitutional prohibition on unduly
suggestive identification procedures.
With only one exception, Garrett does not explain why the facts of his
identification meet the standards he describes only in generally applicable terms. His
legal analysis contains only a single sentence that connects the circumstances of this case
with the law. In that sentence, Garrett asserts: “ ‘Bolstering’ is what Deputy Bearor did
when he had Gutierrez come down to the station and view the photographs which Bearor
had taken of the suspects as they were shown to Gutierrez and the other victims at the
showup.” By “bolstering,” Garrett refers to a practice that “involves the refreshment of
5 Garrett does not challenge his conviction of attempted robbery of Mangano on
this basis.
25
the eyewitness’s memory prior to trial” so that a witness relies on the refreshed
recollection rather than what he or she originally observed. We are not persuaded by
Garrett’s argument about bolstering, and we reject the remainder of his contentions as
forfeited.
As to the claim of bolstering, Garrett refers to the actions taken by Elk Grove
Police Detective Mark Bearor. Detective Bearor photographed each of the robbery
suspects after the in-field show up at the Elk Grove Police Department. Although
Garrett’s argument cites a 1976 law review article generally decrying the vagaries of
witness identifications, he cites no case requiring reversal of a criminal conviction on the
basis of the “bolstering” he alleges to have occurred here. We find nothing inherently
prejudicial about Detective Bearor’s procedure because, as we explained in part V B.,
ante, Detective Bearor did not show the photograph of Garrett to Gutierrez for
identification purposes. Instead, Detective Bearor used the photos for purposes of
inquiring about the details of the robberies. Consequently, we reiterate our conclusion
Detective Bearor did not engage in an unduly suggestive identification procedure.
As to any remaining points of contention on the issue of the identification
procedures employed, we deem them forfeited. As this court has previously noted, “To
demonstrate error, appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the claim of error.”
(In re S.C. (2006) 138 Cal. App. 4th 396, 408.) With the exception of his assertion about
“bolstering,” Garrett has not attempted to explain how the circumstances of his
identification violate the constitutional prohibitions he discusses only in generalities. In
effect, Garrett leaves us to connect the dots to fill in the picture. We decline to formulate
the analysis for Garrett and pass on the issue without further consideration.
26
VII
Garrett’s Claim his Miranda Rights were Violated
Garrett contends his convictions must be reversed because his custodial
interrogation was coercive and violated his rights under the Fifth and Sixth Amendments.
We reject the contention.
A.
Miranda Advisement
The following exchange occurred between Detective Strange and Garrett at the
Elk Grove Police Department:6
“DET. STRANGE: What’s up Victor? I didn’t realize you still had these
[handcuffs] behind your back. (Unintelligible) get that. Just so we’re all completely
clear, you realize you’re in custody, right?
“V. GARRETT: Mm-hmm.
“DET. STRANGE: Okay. Um, at this point you’re under arrest for uh – for, uh –
attempted robbery –
“V. GARRETT: Mm-hmm.
“DET. STRANGE: Okay? And, uh, I talked to a couple of the other guys so it’s
not a big deal. I mean, you guys did what you did, just kinda had a night of it, but uh –
but we just wanna put everything out on the table now and just make sure you can walk
out of here kinda clean-slated –- make sure there’s nothing hanging over your head,
okay?
“V. GARRETT: Alright.
“DET. STRANGE: So, um, you want water or anything?
“V. GARRETT: Mmm yeah.
6 We quote the transcript of the interview between Detective Strange and Garrett as
reflected in an exhibit submitted to the jury. The interview was videotaped and in
considering Garrett’s argument, we have viewed the videotape.
27
“DET. STRANGE: I’ll grab one for you, okay? Just be a second. Be back in just
a second here. Can you grab me a water?
“(BEGIN CLIP)
“DET. STRANGE: Okay. I gotta go through that before I can really talk to ya,
um, so we can clean the –- clean the slate for tonight, so, um. Anything you say um –-
or, sorry. You have the right to remain silent. Anything you say can be used against you
in court. You have the right to the presence of an attorney if you want before and during
any questioning and if you can’t afford an attorney then one can be appointed to you free
of charge.
“V. GARRETT: Mm-hmm.
“DET. STRANGE: Do you understand all of that?
“V. GARRETT: (Nods Head)
“DET. STRANGE: Okay. So, tonight obviously you guys got hemmed up.
“V. GARRETT: Yeah.
“DET. STRANGE: Kinda got caught red-handed. So, what I wanna do is try to
clean the slate for the whole night.
“V. GARRETT: Mm-hmm.
“DET. STRANGE: Okay? So, um, what I’m gonna ask of you to do is go back
for the beginning of the night when you guys all got in the car and just run me through
the whole night? Okay? Because, just so you know –- and, let’s be honest, okay? Some
cops try to play tricks and things like that. I’m not gonna do that, okay?
“V. GARRETT: Mm-hmm.
“DET. STRANGE: I’m gonna –- I’m gonna shut you down if I know you’re
telling me a lie –
“V. GARRETT: Mm-hmm.
“DET. STRANGE: -- so I don’t even wanna deal with lies. I’m just gonna come
at you straight. Obviously you’re going to jail –- or going to juvenile hall in your case.
28
Obviously you’ve got some charges that are gonna be over your head and let’s be honest,
they’re kind of significant at this point so I think the best thing we can do is just have you
be honest through the whole thing because then at least it shows –- I –- in my eyes at
least –- that hey, you know what? I was an idiot tonight. I’m sorry for what I did and I –
- I’m –- I’m ready to pay the consequence of what I have to do because that’s just how
the world works.
“V. GARRETT: Mm-hmm.”
B.
Waivers of Miranda Rights
In Miranda v. Arizona, the United States Supreme Court held that “when an
individual is taken into custody or otherwise deprived of his [or her] freedom by the
authorities in any significant way and is subjected to questioning, the privilege against
self-incrimination is jeopardized. Procedural safeguards must be employed to protect the
privilege and unless other fully effective means are adopted to notify the person of his [or
her] right of silence and to assure that the exercise of the right will be scrupulously
honored, the following measures are required. He [or she] must be warned prior to any
questioning that he [or she] has the right to remain silent, that anything he [or she] says
can be used against him [or her] in a court of law, that he [or she] has the right to the
presence of an attorney, and that if he [or she] cannot afford an attorney one will be
appointed for him [or her] prior to any questioning if he [or she] so desires. Opportunity
to exercise these rights must be afforded to him [or her] throughout the interrogation.
After such warnings have been given, and such opportunity afforded him [or her], the
individual may knowingly and intelligently waive these rights and agree to answer
questions or make a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation
can be used against him [or her].” (Miranda v. Arizona, supra, 384 U.S. at pp. 478-479.)
To this end, the Supreme Court cautioned that “a valid waiver will not be presumed
29
simply from the silence of the accused after warnings are given or simply from the fact
that a confession was in fact eventually obtained.” (Id. at p. 475.)
Nonetheless, a defendant need not expressly waive his or her Miranda rights in
order to indicate a voluntary and uncoerced desire to answer questions posed by the
police. The California Supreme Court has noted that “decisions of the United States
Supreme Court and this court have held that such an express waiver is not required where
a defendant’s actions make clear that a waiver is intended.” (People v. Whitson (1998)
17 Cal. 4th 229, 250.) “Where the prosecution shows that a Miranda warning was given
and that it was understood by the accused, an accused’s uncoerced statement establishes
an implied waiver of the right to remain silent.” (Berghuis v. Thompkins (2010) 560 U.S.
370, 384 [130 S.Ct. at pp. 2259-2261].) “Any statement given freely and voluntarily
without any compelling influences is, of course, admissible in evidence.” (Miranda v.
Arizona, supra, 384 U.S. at p. 478.)
Of course, minors have the same rights under the Fifth and Sixth Amendments as
do adults. (People v. Davis (1981) 29 Cal. 3d 814, 823-825.) In People v. Davis, the
California Supreme Court addressed the issue of custodial interrogation as it applied to a
16-year-old male who was suspected of rape and murder. (Id. at pp. 819, 823.) The
defendant in Davis argued his confession was involuntary even though he had been
advised of his Miranda rights prior to custodial questioning. (Id. at p. 823.) The record
showed he was interviewed at a police station after being informed of his Miranda rights.
(Ibid.) The defendant indicated he waived those rights and answered questions for three
hours before being arrested and placed in a holding cell. (Id. at p. 824.) The
interviewing police officer came back and asked the defendant if he wished to have
dinner. After replying yes, the officer asked if defendant had killed the victim. The
defendant nodded affirmatively. (Ibid.) While acknowledging a “sensitivity to the youth
and inexperience of defendant,” the Supreme Court held that “[a]lthough defendant was a
minor, that fact alone does not establish that his confession was involuntary. (People v.
30
Lara (1967) 67 Cal. 2d 365, 378-379.) The evidence tended to show that he was fully
aware of his rights, and was not frightened into submission by the officers’ behavior.”
(Id. at p. 825.) Youth thus is one of the factors to be considered in determining whether
the totality of the circumstances establishes coercive questioning in derogation of the
Fifth and Sixth Amendments. (Id. at p. 824.)
“ ‘In considering a claim that a statement or confession is inadmissible because it
was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384
U.S. 436 [86 S. Ct. 1602], we accept the trial court’s resolution of disputed facts and
inferences, and its evaluation of credibility, if supported by substantial evidence.’ ”
(People v. Kelly (1990) 51 Cal. 3d 931, 947.) Although we independently determine
whether, from the undisputed facts and those properly found by the trial court, the
challenged statements were illegally obtained (ibid.), we “ ‘give great weight to the
considered conclusions’ of a lower court that has previously reviewed the same
evidence.” (People v. Jennings (1988) 46 Cal. 3d 963, 979, quoting Miller v. Fenton
(1985) 474 U.S. 104, 112 [106 S. Ct. 445, 450]; accord, People v. Kelly, supra, 51 Cal.3d
at p. 947.)
C.
Garrett Waived his Right to Remain Silent
Garrett argues he did not waive his Miranda rights expressly or tacitly. Although
he acknowledges Detective Strange gave a Miranda advisement, he contends the
detective “raced through” the recitation to ask questions so Garrett “could ‘walk out of
here kinda clean-slated,’ with ‘nothing hanging over [his] head.’ ” Combined with his
youth, the late hour of the questioning, and the custodial nature of the environment,
Garrett asserts he was coerced into giving a confession. We are not persuaded.
As we have recounted, Detective Strange advised Garrett of his Miranda rights.
Although Garrett asserts he did not waive his rights, the transcript and videotape show he
nodded to affirm he understood his Miranda rights.
31
Detective Strange began the interview by clearly stating, “Just so we’re all
completely clear, you realize you’re in custody, right?” Garrett indicated he understood.
Garrett did not indicate in any way that he was fearful, did not wish to speak with the
detective, or even that he was uncomfortable. Detective Strange removed Garrett’s
handcuffs and offered him a bottle of water.
Not until the detective had given the Miranda advisement and told Garrett he was
going to go to jail or juvenile hall anyway did Detective Strange begin to ask about the
events of the evening that led to the arrest. Detective Strange did not attempt to elicit
answers with the promise of leniency. Instead, he advised Garrett to simply “pay the
consequence” of having been “an idiot” that evening. Thus, the record shows the
detective indicated Garrett’s answers would have adverse consequences.
Garrett argues that “Detective Strange resorted to vague half-truths and half-lies
by telling [him] the situation was ‘no big deal’ and that he was ‘obviously’ going to
juvenile hall as the result of his actions.” Garrett’s argument takes Detective Strange’s
statements out of context. The detective informed Garrett: “Obviously you’re going to
jail –- or going to juvenile hall in your case. Obviously you’ve got some charges that are
gonna be over your head and let’s be honest, they’re kind of significant at this point.”
Detective Strange told Garrett he “[k]inda got caught red-handed.” Moreover, the
detective indicated Garrett’s statement was not even necessary because he had “talked to
a couple of the other guys so it’s not a big deal.” Contrary to Garrett’s assertion on
appeal, the context of Detective Strange’s comment made clear it was “not a big deal” to
add to the other statements given by Garrett’s co-conspirators. The detective did not state
or imply Garrett’s situation or the evidence against him was “not a big deal.” Instead,
Detective Strange several times expressed Garrett faced very serious charges after being
caught “red-handed.”
Detective Strange did not badger or yell at Garrett. And, the questioning was not
protracted. Although the hour may have been late and the questions posed at the police
32
station, we conclude these factors did not transform Detective Strange’s questioning into
an exercise in coercion.
We also conclude Garrett’s youth did not render ineffective his waiver of his
Miranda rights. In so concluding, we recognize “a child’s age properly informs the
Miranda custody analysis.” (J.D.B. v. North Carolina (2011) ___ U.S. ___ [131 S. Ct.
2394, 2399].) In J.D.B., the United States Supreme Court “observed that children
‘generally are less mature and responsible than adults,’ [citation]; that they ‘often lack the
experience, perspective, and judgment to recognize and avoid choices that could be
detrimental to them,’ [citation]; that they ‘are more vulnerable or susceptible to . . .
outside pressures’ than adults [citation]; and so on.” (Id. at p. __ [2403].)
Garrett was 17 years and 2 months old at the time of his questioning. Thus,
Garrett was only 10 months away from becoming an adult. Detective Strange was aware
of Garrett’s age, as noted by his reference to juvenile hall. In this context, the transcript
shows the detective amplified the Miranda advisement with clear and plain language
explaining Garrett was going to juvenile hall or jail, was facing very serious charges, had
been caught “red-handed,” and would suffer the consequences of his actions. The
detective’s statements admonished Garrett in an age-appropriate manner and Garrett
voluntarily chose to answer the questions posed to him.
In view of the totality of the circumstances of Garrett’s questioning by Detective
Strange, we conclude Garrett’s rights under the Fifth and Sixth Amendments were not
violated.
VIII
Garrett’s Eighth Amendment Challenge to his Sentence
Garrett contends his sentence of 74 years and 4 months to life in prison for non-
homicide crimes committed as a minor constitutes cruel and unusual punishment under
33
the Eighth Amendment.7 Prior to oral argument, we asked the parties for supplemental
briefing to address the impact of the California Supreme Court’s decision in Caballero,
supra, 55 Cal. 4th 262. Garrett reiterated his contention that his sentence is
unconstitutional, and the Attorney General conceded the point. At oral argument, the
Attorney General withdrew her concession and requested the opportunity to further brief
the matter in light of the recent passage of Senate Bill No. 260 (2013-2014 Reg. Sess.)
Statutes 2013, chapter 312. (Senate Bill No. 260.) We granted all parties the opportunity
to file supplemental letter briefs, which were filed by Garrett and the Attorney General.
Having reviewed the supplemental briefs, we conclude Garrett’s sentence must be
reversed and his matter be remanded for reconsideration in light of our Supreme Court’s
guidance in Caballero even after the passage of Senate Bill No. 260 (2013-2014 Reg.
Sess.).
A.
Life Sentences for Non-Homicide Crimes Committed by Minors
In Graham v. Florida (2010) 560 U.S. 48, 81 [130 S. Ct. 2011, 176 L. Ed. 2d 825]
(Graham), the United States Supreme Court announced that the “Constitution prohibits
the imposition of a life without parole sentence on a juvenile offender who did not
commit homicide. A State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some realistic opportunity to
obtain release before the end of that term.” (560 U.S. 43 at p. 81 [130 S.Ct. at p. 2034].)
Two years later, in Miller v. Alabama (2012) ___ U.S. ___ [132 S. Ct. 2455] (Miller), the
Supreme Court declared, “ ‘[j]ust as the chronological age of a minor is itself a relevant
mitigating factor of great weight, so must the background and mental and emotional
development of a youthful defendant be duly considered’ in assessing his [or her]
7 Varnado does not raise an Eighth Amendment challenge to his sentence,
presumably because his sentence of 31 years to life in prison allows him the possibility of
parole when he will be approximately 48 years old.
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culpability.” (Id. at p. ___ [132 S.Ct. at p. 2467], quoting Eddings v. Oklahoma (1982)
455 U.S. 104, 116, [102 S. Ct. 869].) The Miller court recognized it “imposed a
categorical ban on the sentence’s use, in a way unprecedented for a term of
imprisonment. See [Graham, supra,] 130 S.Ct., at 2046 (THOMAS, J., dissenting) (‘For
the first time in its history, the Court declares an entire class of offenders immune from a
noncapital sentence using the categorical approach it previously reserved for death
penalty cases alone’).” (Miller, supra, at p. ___ [132 S.Ct. at pp. 2466-2467].)
Following Graham and Miller, the California Supreme Court held a 110-year-to-
life sentence imposed for three counts of attempted murder committed as a minor
constituted cruel and unusual punishment. (Caballero, supra, 55 Cal.4th at p. 265.) As
the Caballero court explained, “the Eighth Amendment requires the state to afford the
juvenile offender a ‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation,’ and that ‘[a] life without parole sentence improperly denies
the juvenile offender a chance to demonstrate growth and maturity.’ (Graham, supra,
560 U.S. at p. ___ [130 S.Ct. at pp. 2029–2030].) The court observed that a life without
parole sentence is particularly harsh for a juvenile offender who ‘will on average serve
more years and a greater percentage of his [or her] life in prison than an adult offender.’
(Id. at p. ___ [130 S.Ct. at p. 2028].) Graham likened a life without parole sentence for
nonhomicide offenders to the death penalty itself, given their youth and the prospect that,
as the years progress, juveniles can reform their deficiencies and become contributing
members of society. (Ibid.)” (Caballero, supra, 55 Cal.4th at p. 266.)
In Caballero, the Attorney General argued the 110-year-to-life prison sentence for
a minor did not violate the Eighth Amendment even though it was the “functional
equivalent to a life without parole term” on grounds no individual component of the
defendant’s sentence by itself amounted to a life sentence. (Caballero, supra, 55 Cal.4th
at p. 271.) Our Supreme Court rejected the contention because “the purported distinction
between a single sentence of life without parole and one of component parts adding up to
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110 years to life is unpersuasive.” (Id. at pp. 271-272.) Thus, the Caballero court
reversed the sentence and instructed that “the 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 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, quoting
Graham, supra, 560 U.S. 43 at p. 74.)
B.
Garrett’s Sentence is the Functional Equivalent of a Life Sentence without Parole
In sentencing Garrett, the trial court relied on the probation officer’s report.
Although the probation officer’s report states Garrett was 17 at the time of the offenses, it
does not consider his mental or emotional development either as it related to his
culpability or the appropriate sentence for his crimes. The trial court stated that “it is,
I think, a tragedy that someone as young as yourself . . . is involved in this situation.”
However, the trial court did not take into account the factors of mental and emotional
maturity articulated by the Graham and Miller courts in imposing its sentence on Garrett.
At the time of his sentencing, Garrett was 19 years old. With approximately 2.5
years of presentence custody credits, Garrett’s sentence would have made him eligible for
parole at about 90 years of age. At the age of 90, Garrett will have little opportunity to
become a contributing member of society.8 (Caballero, supra, 55 Cal.4th at p. 266.)
This sentence constitutes the functional equivalent of a life-without-parole term.
8 Even with the 15 percent “good time” credits provided by section 2933.1, Garrett
will not become eligible for parole until after he turns 82 years of age. (See § 667.5,
36
C.
Senate Bill No. 260 (2013-2014 Reg. Sess.) Does Not Cure the Constitutional Error in
Sentencing
The Legislature responded to Miller, supra, __ U.S. __ [132 S. Ct. 2455] and
Caballero, supra, 5 Cal. 4th 262 by passing Senate Bill No. 260 (2013-2014 Reg. Sess.),
which became effective on January 1, 2014. The Legislature noted the bill “recognizes
that youthfulness both lessens a juvenile’s moral culpability and enhances the prospect
that, as a youth matures into an adult and neurological development occurs, these
individuals can become contributing members of society.” (Sen. Bill No. 260, § 1 (2013-
2014 Reg. Sess.).) The Legislature declared, “[t]he purpose of this act is to establish a
parole eligibility mechanism that provides a person serving a sentence for crimes that he
or she committed as a juvenile the opportunity to obtain release when he or she has
shown that he or she has been rehabilitated and gained maturity, in accordance with the
decision of the California Supreme Court in [Caballero] and the decisions of the United
States Supreme Court in [Graham], and [Miller]. It is the intent of the Legislature to
create a process by which growth and maturity of youthful offenders can be assessed and
a meaningful opportunity for release established.” (Sen. Bill No. 260, § 1 (2013-2014
Reg. Sess.).)
To effectuate the Legislature’s intent, Senate Bill No. 260 (2013-2014 Reg. Sess.)
added section 3051 to the Penal Code, which requires the Board of Parole Hearings 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
subd. (c)(9) [including robbery among violent felonies for which custody credits are
limited under section 2933.1, subdivision (a)].)
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provisions.” (§ 3051, subd. (b)(3); Sen. Bill No. 260, § 4 (2013-2014 Reg. Sess.).) In
conducting youth offender parole hearings under section 3051, the Board of Parole
Hearings 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).) If the youthful offender is found suitable for parole by the Board of Parole
Hearings, he or she must be released even if the full determinate term originally imposed
has not yet be completed. (§ 3046, subd. (c).)
In light of Garrett’s newly enacted entitlement to a youth offender parole hearing
during his 25th year of incarceration, the Attorney General argues Garrett’s sentence “is
constitutional because he now has a realistic opportunity to obtain release from prison
during his lifetime.” We conclude remand for resentencing is compelled by the Eighth
Amendment.
In Caballero, the California Supreme Court concluded: “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. Under
Graham’s nonhomicide ruling, the 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 when the juvenile offender will be able to seek
parole from the parole board.” (Caballero, supra, 55 Cal.4th at pp. 268-269, italics
added.)
Even though Senate Bill No. 260 (2013-2014 Reg. Sess.) 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
38
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, ___ U.S. at p. ___ [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. ___ [132 S. Ct. 2455, 2467],
quoting Johnson v. Texas (1993) 509 U.S. 350, 367, italics added.) Consequently, Senate
Bill No. 260 does not render Garrett’s claim moot.
We are aware of a contrary conclusion reached in People v. Gonzalez (2014) 225
Cal. App. 4th 1296, 1311 (Gonzalez). Gonzalez involved a youthful offender who was
sentenced to serve 50 years to life in prison. (Id. at p. 1302.) The Gonzalez court relied
on Senate Bill No. 260 (2013-2014 Reg. Sess.) in rejecting the defendant’s argument his
sentence constituted cruel and unusual punishment. (Id. at pp. 1300-1301.) The
Gonzalez court concluded that “[Senate Bill No.] 260 . . . cured or rendered moot any
error under Miller in the sentencing hearing Gonzalez received.” (Id. at p. 1312.)
Gonzalez further concludes the “incarceration, although lengthy and under a mandatory
sentence, does not implicate Miller’s per se ban on mandatory [life imprisonment without
possibility of parole (LWOP)] terms for juveniles. He similarly falls outside Caballero’s
holding that de facto LWOP terms may be tantamount to an LWOP for constitutional
purposes. Simply put, under the new legislation, Gonzalez does not face the prospect of
[serving life in prison without the possibility of parole]. Therefore, Miller does not
apply, and neither does Caballero’s recognition that a lengthy term of years may amount
to an LWOP sentence.” (Gonzalez, at p. 1309.)
We disagree with Gonzalez because the penalty selection that comports with
Miller and Caballero must be undertaken in the first instance by the sentencing court.
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(Miller, supra, ___ U.S. ___ [132 S.Ct. at p. 2467]; Caballero, supra, 55 Cal.4th at
p. 268-269.) Regardless of whether the new statutory scheme enacted by Senate Bill
No. 260 (2013-2014 Reg. Sess.) may eventually convert a mandatory life sentence to one
with possibility of parole, the United States and California Supreme Courts have clearly
required the sentencing court to consider the factors of youth and maturity when selecting
the initial punishment. The statutory promise to have a future parole board review an
improperly considered sentence does not cure the constitutional error.
The possibility that Garrett will have a board of parole undertake an evaluation 25
years after his sentencing is not a substitute for the trial court’s evaluation at sentencing.
Although the trial court is not required to articulate the analysis of Miller, supra, ___
U.S. __ [132 S. Ct. 2455], Graham, supra, 560 U.S. 48, and Caballero, supra, 55 Cal. 4th
262 as it relates to every youthful offender, each youthful offender is entitled to a
sentence that passes muster under the Eighth Amendment. Moreover, a properly imposed
sentence by itself can prove instructive 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, they 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.
(Caballero, supra, 55 Cal.4th at pp. 268-269.) 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. (Ibid.) Consequently, we adhere to the guidance of the
United States and California Supreme Courts that the sentencing court must engage in the
proper evaluation of the appropriate punishment for a youthful offender. (Miller, supra,
___ U.S. ___ [132 S.Ct. at p. 2467]; Caballero, supra, 55 Cal.4th at p. 268-269.)
The question of whether remand for resentencing must be ordered in this case is
additionally informed by the California Supreme Court’s recent examination of
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constitutionally deficient sentencing for youthful offenders in People v. Gutierrez (2014)
58 Cal. 4th 1354 (Gutierrez). Gutierrez involved consolidated cases in which two
defendants, Gutierrez and Moffett, each separately committed special circumstance
murder while 17 years old. (Id. at p. 1360.) The trial courts imposed LWOP sentences
on each defendant under section 190.5, subdivision (b), which had been construed to
create a presumption in favor of LWOP sentences for special circumstance murders
committed by 16- and 17-year-old offenders. (Ibid.) In Gutierrez, the California
Supreme Court harmonized section 190.5, subdivision (b), with Eighth Amendment
protections by holding trial courts have discretion to sentence a youthful offender to serve
25 years to life or LWOP with no presumption in favor of the LWOP option. (Id. at
pp. 1371-1379.)
Because the defendants in Gutierrez had been sentenced under the prior,
prevailing presumption in favor of LWOP, the Supreme Court held that resentencing was
required. (58 Cal.4th at pp. 1361, 1379.) In so holding, the Gutierrez 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.) Section 1170
allows a youthful offender to petition the court to recall the sentence after serving 15
years. (Id. at p. 1384 [noting also that the youthful offender, if not initially successful,
may petition again after 20 and 24 years have been served].) The Gutierrez court
explained that the United States Supreme Court in “Graham spoke of providing juvenile
offenders with a ‘meaningful opportunity to obtain release’ as a constitutionally required
alternative to—not as an after-the-fact corrective for—‘making the judgment at the outset
that those offenders never will be fit to reenter society.’ (Graham, at p. 75 [130 S.Ct. at
p. 2011], italics added.) Likewise, Miller’s ‘cf.’ citation to the ‘meaningful opportunity’
language in Graham occurred in the context of prohibiting ‘imposition of that harshest
41
prison sentence’ on juveniles under a mandatory scheme. (Miller, at p. __ [132 S.Ct. at
p. 2469].) Neither Miller nor Graham indicated that an opportunity to recall a sentence
of life without parole 15 to 24 years into the future would somehow make more reliable
or justifiable the imposition of that sentence and its underlying judgment of the
offender’s incorrigibility ‘at the outset.’ (Graham, at p. 75 [130 S.Ct. at p. 2011].) [¶]
Indeed, the high court in Graham explained that a juvenile offender’s subsequent failure
to rehabilitate while serving a sentence of life without parole cannot retroactively justify
imposition of the sentence in the first instance: ‘Even if the State’s judgment that
Graham was incorrigible were later corroborated by prison misbehavior or failure to
mature, the sentence was still disproportionate because that judgment was made at the
outset.’ (Graham, supra, 560 U.S. at p. 73 [130 S.Ct. at p. 2011], italics added.) By the
same logic, it is doubtful that the potential to recall a life without parole sentence based
on a future demonstration of rehabilitation can make such a sentence any more valid
when it was imposed. If anything, a decision to recall the sentence pursuant to section
1170(d)(2) is a recognition that the initial judgment of incorrigibility underlying the
imposition of life without parole turned out to be erroneous. Consistent with Graham,
Miller repeatedly made clear that the sentencing authority must address this risk of error
by considering how children are different and how those differences counsel against a
sentence of life without parole ‘before imposing a particular penalty.’ (Miller, supra, 567
U.S. at p. ___ [132 S.Ct. at p. 2471], italics added; see id. at pp. ___, [132 S.Ct. at
pp. 2469, 2475].)” (Gutierrez, supra, at pp. 1386-1387.) In short, the California
Supreme Court recognized a statutory promise of future correction of a presently
unconstitutional sentence does not alleviate the need to remand for resentencing that
comports with the Eighth Amendment.
Consequently, we reverse and remand “the case to the trial court with directions to
resentence defendant to a term that does not violate his constitutional rights, that is,
a sentence that, although undoubtedly lengthy, provides him with a ‘meaningful
42
opportunity to obtain release based on demonstrated maturity and rehabilitation.’
(Graham, 560 U.S. at p. ___ [130 S.Ct. at p. 2030].)” (Caballero, supra, 55 Cal.4th at
p. 273 [Werdegar, J., conc.].)
DISPOSITION
The judgment is affirmed as to Erion Demonta Varnado. We also affirm the
convictions as to Victor Tyrone Garrett. However, we reverse the judgment as to Garrett
and remand for resentencing consistent with People v. Caballero, supra, 55 Cal. 4th 262.
HOCH , J.
We concur:
HULL , Acting P. J.
ROBIE , J.
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