The People v. Childress CA2/2 ( 2013 )

Filed 9/4/13 P. v. Childress CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B238241
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA356413)
v.
JOEL CHILDRESS et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County. Ronald
S. Coen, Judge. Affirmed.
Joana McKim, under appointment by the Court of Appeal, for Defendant and
Appellant Joel Childress.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant Kelsie J. Palmer.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant Eric Allen.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Erika D.
Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Joel Vincent Childress (Childress), Kelsie James
Palmer (Palmer), and Eric Gerare Allen (Allen) (collectively defendants) appeal their
convictions of murder, attempted murder, and making a criminal threat. Childress
contends that substantial evidence does not support his murder or attempted murder
convictions, the finding of premeditation and deliberation, or the gang and multiple-
murder special circumstances. Palmer and Allen contend that the trial court erred in
refusing to sever the murder charge against Childress in count 1 from the remaining
charges. Palmer asserts Aranda-Bruton and Crawford error1 in the admission of a
recording of Allen‟s interview with detectives; and all defendants assert several
instructional errors and join in the arguments of the other defendant to the extent such
arguments might apply to their benefit. Allen contends that his 107 years to life sentence
was cruel and unusual under the federal constitution. We reject Allen‟s constitutional
claim but modify his sentence to comply with statutory requirements, and reject
defendants‟ other contentions and affirm the judgments.
BACKGROUND
Procedural history
An amended information charged defendants with the following crimes:
count 1 charged Childress with the murder of Jose Martinez (Martinez) in violation of
Penal Code section 187, subdivision (a);2 count 2 charged the murder of Rosa Maria
Gallegos (Gallegos) in violation of section 187, subdivision (a); count 3 charged the
attempted willful, deliberate, and premeditated murder of Kenneth Thomas (Thomas) in
violation of sections 187, subdivision (a), and 664; count 4 charged the attempted willful,
deliberate, and premeditated murder of Luis Miralda (Miralda); and count 5 charged
defendants with making criminal threats against Yvonne Love (Love) in violation of
section 422.
1 See generally, Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v.
Aranda (1965) 63 Cal.2d 518 (Aranda); and Crawford v. Washington (2004) 541 U.S. 36(Crawford).
2 All further statutory references are to the Penal Code, unless otherwise indicated.
2
The amended information specially alleged in count 1 that the murder was one of
multiple murders committed by Childress within the meaning of section 190.2,
subdivision (a)(3). In count 2, the information alleged pursuant to section 190.2,
subdivision (a)(22), that defendants committed the murder as active participants in a
criminal street gang and in furtherance of the activities of the gang. In counts 1, 2, 3, 4,
and 5, the amended information alleged pursuant to section 186.22, subdivision (b)(1)(C),
that the crimes were committed for the benefit of, at the direction of, and in association
with a criminal street gang, with the specific intent to promote, further and assist in
criminal conduct by gang members. As to counts 1, 2, 3, and 4, it was alleged that a
principal personally and intentionally used and discharged a firearm, within the meaning
of section 12022.53, subdivisions (c) and (e)(1). As to count 1, it was alleged that the
discharge of the firearm proximately caused great bodily injury and death to Martinez.
As to count 2, it was alleged that the discharge of the firearm proximately caused great
bodily injury and death to Gallegos.
Defendants were tried together before a single jury, which convicted them of
counts 2, 3, 4, and 5 as charged, found the murders to be in the first degree, and found the
attempted murders to have been committed willfully, deliberately, and with
premeditation. Childress was convicted of murder in the second degree in count 1. The
jury found true all special allegations and the special circumstances.
On January 3, 2012, the trial court sentenced Childress and Palmer each to the
middle term of two years in prison as to count 5 as the base term, plus a consecutive five-
year enhancement due to the gang finding. The court sentenced Childress to a
consecutive term of 15 years to life as to count 1, plus a firearm enhancement of 25 years
to life. As to the remaining counts, the trial court imposed upon both Childress and
Palmer consecutive prison terms and enhancements as follows: life without the
possibility of parole (LWOP) as to count 2, plus a firearm enhancement of 25 years to
life; a life term on each of counts 3 and 4, plus a consecutive firearm enhancement of 25
years to life. Additional firearm enhancements and gang enhancements were imposed
and stayed. Childress and Palmer were ordered to provide tissue samples and to pay
3
mandatory fines, fees, and victim restitution. Childress was awarded 971 days of actual
custody credit. Palmer was awarded 965 days of actual custody credit.
On January 20, 2012, the trial court sentenced Allen (whose age was 15 years 11
months at the time of the crimes) to the middle term of two years in prison as to count 5,
plus a consecutive five-year enhancement due to the gang finding. As to count 2, the
court sentenced Allen to 25 years to life instead of LWOP due to his youth, plus a
consecutive firearm enhancement of 25 years to life. The court imposed sentences on
counts 3 and 4 identical to those imposed on Childress and Palmer: life in prison plus a
consecutive a firearm enhancement of 25 years to life as to each count. Additional
firearm enhancements and gang enhancements were imposed and stayed. Allen was
ordered to provide tissue samples and to pay mandatory fines, fees, and victim restitution.
He was awarded 882 days of actual custody credit.
Defendants filed timely notices of appeal from the judgments.
Prosecution evidence
Gang evidence
All parties stipulated that the Black P-Stone Gang (P-Stone or P-Stones) was a
criminal street gang within the meaning of section 186.22 and to the admission of
certified court records of the 2009 conviction of P-Stones member Justin Birdsong for
felony possession of cocaine base for sale, and the 2011 robbery conviction of P-Stones
member Kevin Lamar Sanford.
Officer Brian Thayer of the Los Angeles Police Department (LAPD) Southwest
Gang Impact Team, arrested Palmer in May 2009. Officer Thayer testified he recognized
Palmer from about 25 prior contacts. Palmer had been served with a P-Stones gang
injunction and admitted to Officer Thayer he was a member of the P-Stones. Since 2004,
Officer Thayer also had many contacts with Allen who had also been served with a gang
injunction. Allen admitted being a member of the P-Stones, and other gang members
have identified Allen as an active member of the gang. LAPD Officer Geraldine
Vasquez testified she had stopped Allen and Palmer together in August 2007 at which
time they both admitted they were members of the P-Stones.
4
LAPD Officer Kenneth Sanchez testified as the prosecution‟s expert on gangs. He
testified that the primary activities of the P-Stones were vandalism, robbery, carjacking,
burglary, bank robbery, murder, attempted murder, home invasion, and extortion and that
he had arrested or investigated P-Stones members for such crimes. The P-Stones was a
Blood gang with mostly African-American members and several subsets, including the
Jungle clique and the Bity Stones, also known as City Stones. Its territory bordered or
sometimes conflicted with that of rival gangs, including several Crip gangs and the 18th
Street Gang (18th Street). 18th Street was primarily a Hispanic gang, although it had
some African-American members. Alsace, a clique within 18th Street, the Schoolyard
Crips, and the Rollin‟ 60‟s, were also rivals of P-Stones.
P-Stone members often wore red, preferring red St. Louis Cardinals hats with the
letters S, T, and L which signified “Stone Love” to them. P-Stone members often wore
tattoos with a St. Louis Cardinals emblem, as well as BPS, CS (for subset City Stones),
BS (for either subset Bity Stones or for Black Stones), or a five-pointed star (signifying
love, peace, truth, justice, and freedom). The tattoos often included crossed-out letters
associated with rival gangs; thus a crossed-out E or 8 would signify its rivalry with 18th
Street.
Officer Sanchez testified that respect was very important in gang culture,
explaining that each gang had a hierarchy, with levels of status comparable to ranks in a
command structure. Gang members earned respect and thus elevated status by “putting
in work” for the gang, which meant committing crimes that brought in revenue or spread
fear in the community. Because respect and fear were so important to the gang‟s ability
to control its territory, the crime of murder garnered the greatest respect. Other ways to
earn respect included intentionally disrespecting rivals by crossing out graffiti in their
territory, replacing it with P-Stones graffiti, or writing graffiti that was otherwise
disrespectful of rivals.
The territory of the P-Stones Jungle set included lower Baldwin Village. The
territory of the Bity Stones set was primarily the West Adams corridor, including the area
of Adams and Crenshaw Boulevards, which was close to 18th Street territory. Members
5
of 18th Street mostly congregated in the West Adams corridor near 11th Avenue and
Jefferson Boulevard. Both 18th Street and West Boulevard Crips claimed the
intersection of Adams and Rimpau Boulevards. Officer Sanchez testified that wearing a
blue bandanna in Crips territory might signify to a P-Stones member that the person was
a Crip gang member, while wearing a Los Angeles Dodgers hat in 18th Street territory
might signify to a P-Stones member that the person was an 18th Street gang member. In
such circumstances, or where any young Latino man is simply talking to a young Latino
woman in 18th Street territory, younger P-Stones members would feel obligated to
confront or take some action that would make themselves known and show dominance.
Officer Sanchez explained that gang members usually did not enter rival gang territory
without expecting a confrontation in the form of a fight or a shoot-out.
Martinez murder (count 1)
Detective James Yoshida of the LAPD Criminal Gang Homicide Division testified
he was assigned to investigate the shooting death of Martinez on February 5, 2008, near
Adams and Rimpau Boulevards. Martinez had suffered two bullet wounds to the head,
one fatal. As part of his investigation, Detective Yoshida interviewed Donoven Gray
(Gray) in May 2008.3 Gray had been arrested two weeks after the shooting when he
attempted to dispose of the revolver which was later determined to have been used in the
shooting.
Detective Yoshida also obtained surveillance videos of the crime scene from a
liquor store and motel. Portions of the video recordings were played for the jury. Since
the picture quality was poor, Detective Yoshida described the images for the jury. He
explained the white four-door sedan seen circling around and slowing to a stop at the
curb in front of the liquor store where the victim was standing, before making a three-
3 Detective Yoshida observed “SL” tattooed on Gray and understood it to stand for
Stone Love. Gray was brought before the jury so that Detective Yoshida could identify
him, and for the jury to observe his tattoos: a “B” on his right cheek; “P-Stone” on his
forehead; and an “S” and a picture of a hand with the thumb down on his left cheek.
Gray was called as a prosecution witness but invoked his Fifth Amendment privilege not
to testify. Despite being given use immunity, Gray continued to refuse to testify.
6
point turn and coming to a stop. Two flashes were then seen in front of the liquor store,
after which a person ran toward the white car, which then travelled eastbound on Adams
Boulevard behind a bus and stopped at a stop sign on the southeast corner of Adams and
Rimpau Boulevards.
Detective Yoshida also identified several still photographs taken from the video
recordings, showing a person in dark clothing getting out of the white car in front of the
liquor store and of the car making a turn at Adams and Rimpau Boulevards. With
enhancement of the photographs, Detective Yoshida determined that the white car was a
Chevrolet Malibu sedan from 1999 or 2000. He saw such a car a few days later several
blocks from the crime scene and noted the license plate number: 4DRD657. Later, when
he again searched for the car, he found a similar Malibu, black in color, with no license
plate, parked almost directly in front of the address where he had seen the white Malibu.
In May 2009, Detective Yoshida and others interviewed Childress who was in
custody on other charges. Childress said the black Malibu and the white Malibu were the
same car, and he identified photographs of Gray and Kinano Massengale (Massengale),
whose monikers were “Devil” and “G-9.” The Malibu belonged to Childress‟s mother,
who had painted the car after an accident. After Detective Yoshida described the
Martinez shooting and told Childress that his car had been seen in video footage of the
incident, Childress then related the events of the evening: he met up with Gray,
Massengale, and another man, “Ace Capone”; Massengale wanted to “put in work”
because he felt he did not do enough; when Gray saw the victim in front of the liquor
store, he told Childress to go back and said something about “my evil face”; Childress
returned and parked; Massengale got out of the car, fired some shots, and ran back to the
car.
Childress told the detectives he usually lived with his mother, but stayed
occasionally at the address where the Malibu was found. He admitted being a member of
the P-Stones since high school, and that members of the gang understand that getting out
of a car to “bang” on someone meant that violence would result. Initially Childress
denied knowing that Massengale had a gun that evening, but later admitted that after he
7
picked up the others, he guessed they stopped at Gray‟s grandmother‟s house to pick up a
gun. Childress agreed that ordinarily when a gang member got out of a car to bang on
someone, he would not be armed with a knife or pipe; but he added that Massengale did
not get out of the car, as the “dude was already in the street. He just opened his door
. . . and just started shooting at him” with a revolver. Childress suggested he had no
choice but to do as he was told by the others because they would probably “hunt [him]
down” otherwise.
Detective Yoshida testified that although Martinez was not a gang member, the
area of the shooting was in 18th Street territory and the black LA Dodgers cap worn by
Martinez was ordinarily associated with the Alsace faction of 18th Street. Detective
Yoshida explained it was common in gang related shootings for there to be several
occupants in the car, so that the shooter and others involved would have an eyewitness to
provide the proof necessary to gain the gang‟s respect for committing the crime. It was
also important to have a getaway driver to facilitate a fast escape from “behind enemy
lines” -- in this case, 18th Street gang territory.
May 8 shooting and threats (counts 2-5)
Sometime after 10:00 a.m. on May 8, 2009, Love was walking along Exposition
Boulevard wearing a blue bandanna on her head. A black Chevrolet Malibu stopped next
to her at a stop sign, and the front passenger, whom she later identified as Palmer said,
“You shouldn‟t be wearing that rag, bitch,” and asked where she was from. Love had
heard of the Crip and Blood gangs and knew that Crips wore blue while Bloods wore red.
Palmer was wearing a red and gray sweatshirt; and she understood him to be referring to
her blue bandanna and asking her what gang she belonged to. When Love replied she
was a grown woman and did not bang, Allen got out of the back seat of the Malibu and
held a revolver against her side. Meanwhile, Palmer was “running his mouth” while
holding a gun in his lap, saying such things as, “Bitch, you don‟t know who you fucking
with.”
Initially Love was not afraid, but became frightened when Palmer continued
“pumping [Allen] up” while Allen‟s hand was on the trigger. Then Allen said, “Bitch,
8
you can get smoked,” which she interpreted as a threat to shoot and kill her. During the
encounter, the driver who Love later identified as Childress, got out of the car and said,
“Bullets ain‟t got no name on it,” which Love understood to mean that anyone could be
shot. Finally Love said, “If you going to do something, you going to do something, I‟m
tired of standing here waiting. If you going to do it, you going to do it.” Defendants then
drove away. Love took down their license plate number and called 911.
Meanwhile, 19-year-old Gallegos was sitting in the driver‟s seat of her parked car
outside her boyfriend, 19-year-old Miralda‟s home on 11th Avenue near Jefferson
Boulevard, a neighborhood where 18th Street gang members lived or congregated.
Thomas, Miralda‟s 32-year-old African-American neighbor was standing next to Miralda
while he spoke with Gallegos. A black Malibu pulled up and stopped alongside
Gallegos‟s car.
Miralda was frightened when he saw two African-American men in the front seat
of the Malibu because he had heard that P-Stone gang members targeted Latinos. A few
seconds after the Malibu stopped, Miralda saw the rear passenger emerge and fire a
weapon. Thomas thought there had been two men in the back seat and that both fired
guns. Thomas also saw the front passenger point a gun at him from the car. Thomas was
struck in the arm by a bullet, shattering the bone and leaving him without gripping
strength. Gallegos was struck four times and died from her wounds. As soon as the
shooting stopped, the Malibu left in the direction of Jefferson Boulevard.
Later the same day, detectives transported Miralda to a gas station where a black
Malibu and its driver had been detained. Miralda identified the black Malibu as the one
involved in the shooting and Childress as the driver. Miralda later identified the front
passenger as Palmer and the shooter as Allen.
Allen Interview
During their investigation of the Gallegos murder, Detectives Brian Calicchia and
Richard Gordon interviewed Allen in December 2009. Portions of the recorded interview
were played for the jury after the trial court admonished: “[T]he contents of this are
9
admissible and I believe admitted against defendant Allen only and not to any other
defendant.”
At first Allen denied he was a member of the P-Stones but later admitted that he
had been “running with” the gang for a year. He also denied at first that he had ever been
in a white or black Chevrolet Malibu, and claimed that he was in school on May 8, 2009.
Allen then admitted he was in the back seat of the car, riding around and smoking, and
that while they were on their way to buy tobacco, they saw the woman in the blue
bandanna. After “talking shit” to the woman, Allen and his companion drove off
laughing. Allen claimed to not remember getting out of the car or what he said.
After the incident with Love, they saw three people. Allen told the detectives:
“When they drove by they like banged off -- I guess banged on somebody. And
(inaudible) you know pointing something at them. Then ask him and then they did what
they did. Like that.” Allen claimed that one of three, a man wearing a T-shirt, extended
his arm, pointed something, started shooting, and then ran away. Allen denied he had
been armed and claimed that he did not know “that they was going to do nothing like
that” or that they had killed someone. One of his companions tossed a gun to another
companion, but Allen claimed not to have seen whether it was a semiautomatic or a
revolver -- “It was like brown or something.”
Gang expert’s opinions
Officer Sanchez was recalled to give his expert opinions based upon his gang
expertise, his review of LAPD resources, his personal contacts with gang members, and
the nature of the tattoos observed on defendants and their associates. In Officer
Sanchez‟s opinion, Gray, Massengale, Childress, Palmer, and Allen were all members of
the P-Stones. In May 2009, Childress, Palmer, and Allen were active participants in the
gang.
Officer Sanchez explained the significance of defendants‟ various tattoos which
demonstrated association with the P-Stone gang or its cliques and disrespect for rival
gangs. Allen‟s tattoos included “NRK” meaning the “No Respect Crew,” a clique of the
P-Stone gang and a tattoo of a crossed-out common Crip sign. The K in lieu of a C and
10
the crossing out were meant to demonstrate hatred for Crip gangs. In a photograph of
Childress taken after his arrest, “Bitys” appears on his chest, with an X over the Y. “City
Stones” and “1◦5◦8” appear on his abdomen, with an X over the over the C, Y, O, E, and
8. Officer Sanchez explained that the X‟s represented disrespect for rival gangs. In
particular the E and 8 are crossed out to show disrespect for 18th Street gang.
Additionally, Officer Sanchez explained the icons on the cell phone taken from Childress
after his arrest, “fugk tha fakez” over “FFK.JPG,” symbolized the P-Stone‟s hatred for
18th Street.
In response to three hypothetical questions that tracked the facts in evidence
regarding the Martinez shooting, the threats made to Love, and the Gallegos shooting,
Officer Sanchez opined the crimes were committed in association with the P-Stone gang
in order to benefit the gang.
Defense evidence
Allen called Detective Calicchia to explain law enforcement‟s documentation of
investigatory stops and arrests of gang members. Palmer called Detective Gordon, who
had interviewed Thomas on May 11, 2009, as well as Detective Calicchia, who had
interviewed Love on May 8, 2009, in order to show that some of the witnesses‟ trial
testimony conflicted with some of the information provided in their interviews. A
recording of the Love interview was played for the jury.
Palmer presented the testimony of Dr. Robert Shomer, an experimental
psychologist who specialized in eyewitness identification, who explained unreliability of
eyewitness identification, including how such factors as stress and the use of weapons
negatively affect a witness‟s recall and accuracy, and how earlier identifications could
affect later ones.
Childress did not testify or present other evidence in his defense.
DISCUSSION
I. Childress: sufficient evidence
Childress contends that his convictions of murder and attempted murder and the
special circumstance findings must be reversed because: (a) there was insufficient
11
evidence to support a finding that he or his companions harbored an intent to kill the
victims or that he facilitated the crimes; (b) the evidence was insufficient to find that he
premeditated and deliberated the murder of Gallegos; and (c) the special circumstance
findings were unsupported by substantial evidence of intent to kill. His contentions lack
merit.
When a criminal conviction is challenged as lacking evidentiary support, “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; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume
in support of the judgment the existence of every fact the jury could reasonably deduce
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard
applies when the conviction rests primarily on circumstantial evidence. [Citation.]”
(Ibid.) We do not reweigh the evidence or resolve conflicts in the evidence. (People v.
Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence ground “is
unwarranted unless it appears „that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].‟ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
A. Intent to kill
Childress contends that the evidence was insufficient to support his conviction of
murder and attempted murder as an aider and abettor because substantial evidence did not
support a finding that he shared the actual perpetrators‟ intent to kill. We find substantial
evidence established that the shooters in both incidents harbored an intent to kill the
victims and that Childress shared that intent when he facilitated the crimes.
“All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission . . . are
principals in any crime so committed.” (§ 31.) “[A] person aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
12
purpose of the perpetrator; and [with] (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.)
“[W]hen the charged offense and the intended offense . . . are the same, i.e., when
guilt does not depend on the natural and probable consequences doctrine, . . . the aider
and abettor must know and share the murderous intent of the actual perpetrator.” (People
v. McCoy (2001) 25 Cal.4th 1111, 1118; see also People v. Smith (2005) 37 Cal.4th 733,
739.)
Intent to kill may be inferred from the defendant‟s acts and the circumstances of
the crime. (People v. Smith, supra, 37 Cal.4th at p. 741.) Massengale‟s act of firing
toward Martinez at a close enough range to inflict two bullet wounds, one of them fatal,
was sufficient to support an inference of intent to kill. (See ibid.) And when Allen,
Childress‟s fellow gang member, fired multiple shots at close range at a group of three
people in rival gang territory, the jury could also reasonably infer a specific intent to kill.
(See People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002 (Rand); People v. Francisco
(1994) 22 Cal.App.4th 1180, 1192.)
In addition, ample evidence supports a finding that Childress knew of the
shooters‟ intent and knowingly facilitated both murders and the attempted murders with
the requisite shared mental state. Facts relevant to determining whether substantial
evidence supports such a finding include companionship and conduct before or after the
offense. (People v. Miranda (2011) 192 Cal.App.4th 398, 407.) While mere presence at
the crime scene is insufficient, it is a factor to consider. (Ibid.)4 In addition, serving as a
lookout or driving the getaway car may give rise to a reasonable inference that the
4 Childress discusses at length a case in which the federal court found that the
evidence showed only that the defendant had been merely present at the scene of a
murder. (See Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262.) The facts of that case are
too dissimilar to provide a helpful analogy.
13
defendant intended to facilitate the crime. (People v. Swanson-Birabent (2003) 114
Cal.App.4th 733, 743.)
Childress, an admitted gang member, drove two fellow gang members into rival
gang territory, knowing that they wanted to “put in work for the gang,” or create fear in
the community or show disrespect for rival gang members by committing violent crimes.
Martinez, who was wearing a black Los Angeles Dodgers hat in 18th Street territory,
gave the appearance of a rival gang member. This prompted P-Stone members to
confront him, an act that by Childress‟s own admission would result in violence.
Childress “guess[ed]” that Gray had a gun. When Gray saw Martinez in front of the
liquor store, Gray pointed Martinez out to Massengale and told Childress to drive back.
The surveillance video shows that Childress drove back around, stopped, waited for
Massengale to fire several times and then run back to the car, before Childress drove
away. Officer Sanchez testified that in drive-by shootings by gang members, drivers
played an important role by getting in and out of the location quickly in order to avoid
police or witness identification.
We find no merit to Childress‟s argument that any intent to facilitate a murder was
negated by his statements to the police that he merely guessed there was a gun in the car
and that he feared the consequences of not doing as he was told. “[C]onfessions stand
upon the same footing as other evidence and are to be weighed by the jury in the same
manner. All parts are not necessarily entitled to the same credit, and the jury may believe
a part and reject the remainder of a confession. [Citations.]” (People v. Garcia (1935) 2
Cal.2d 673, 679.) Thus the jury was free to reject Childress‟s self-serving statements and
credit those that inculpated him. We decline to second-guess the jury, as the reviewing
court neither reweighs the evidence nor resolves conflicts. (See People v. Young, supra,34 Cal.4th at p. 1181.)
The jury could also reasonably find that Childress knew and shared Allen‟s intent
to kill Gallegos, Miralda, and Thomas. Once again Childress drove fellow P-Stone
members to 18th Street territory. On the way, Childress stopped so that he and his
companions could threaten a woman wearing a blue bandanna. Childress certainly knew
14
there were guns in the car on that day, as Palmer held one in his lap; Allen pointed his
gun at Love while threatening her; and Childress added the threat, “Bullets ain‟t got no
name on it.” Childress then drove to an area where P-Stone members were known to
target young Latino people, stopping his car alongside a young Latino couple in
conversation. As Officer Sanchez testified, gang members usually expected a fight or a
shoot-out when they entered rival gang territory, and Childress‟s expectation of a
shooting was demonstrated by his role in the Martinez murder. As in that previous
shooting, it was mere seconds after Childress stopped the car that the shooter emerged
firing his weapon at the victims while Childress waited in the car.
In sum, substantial evidence established that Childress knowingly drove armed
fellow gang members to rival territory for the purpose of violently confronting others;
that he stopped his car close to the victims; that he waited while his fellow gang members
fired multiple shots at the victims; and that he then drove his confederates away from the
scene. Thus substantial evidence supported a finding that Childress shared Massengale‟s
and Allen‟s intent to kill and acted with the purpose of facilitating the commission of the
crimes.
B. Premeditation and deliberation
Childress contends that the evidence of premeditation and deliberation was
insufficient to support his conviction of the first degree murder of Gallegos. This
contention is also without merit.
Premeditation and deliberation means “preexisting reflection and weighing of
considerations rather than mere unconsidered or rash impulse. [Citation.]” (People v.
Perez (1992) 2 Cal.4th 1117, 1125.) “„Premeditation and deliberation can occur in a
brief interval. “The test is not time, but reflection. „Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived at quickly.‟”‟
[Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
Childress cites People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), in
which the California Supreme Court suggested “three types of evidence -- evidence of
planning activity, preexisting motive, and manner of killing -- that assist in reviewing the
15
sufficiency of the evidence supporting findings of premeditation and deliberation.
[Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) Childress does not
discuss motive or manner of killing, but merely contends that without evidence of a
discussion among the three gang members, driving the car was not enough by itself to
suggest planning. There is no requirement that all three factors be established or that any
factor must be shown by direct evidence. (People v. Perez, supra, at pp. 1124-1125.) It
follows that there is no requirement that planning be established by evidence such as the
aider and abettor‟s discussion of his state of mind.
Planning may be reasonably inferred from evidence that the defendants armed
themselves before the shooting. (See, e.g., People v. Caro (1988) 46 Cal.3d 1035, 1050.)
Motive in gang shootings is reasonably inferred from the hatred felt for rival gang
members. (People v. Sanchez, supra, 26 Cal.4th at p. 849; Rand, supra, 37 Cal.App.4th
at pp. 1001-1002.) A very similar prior crime may also provide evidence of motive.
(People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.) Premeditation and
deliberation may be reasonably inferred when a gang member fires multiple shots at a
group of people in rival territory. (People v. Francisco, supra, 22 Cal.App.4th at p.
1192.)
All such evidence was presented here. Like other P-Stone members, Childress
hated 18th Street members, as demonstrated by his tattoos, telephone icons, and his
participation in the murder in 18th Street territory of Martinez wearing a hat associated
with that gang. We have already found substantial evidence demonstrating that Childress
drove into rival gang territory knowing his fellow gang members were armed, stopped
near a group that included young Latinos, and waited while Allen shot at them with the
intent to kill them. Moreover, we have already found that substantial evidence supported
a finding that Childress shared Allen‟s intent to kill. “It would be virtually impossible for
a person to know of another‟s intent to murder and decide to aid in accomplishing the
crime without at least a brief period of deliberation and premeditation . . . . [Citation.]”
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.)
16
We conclude not only that substantial evidence supports a finding that Childress
aided and abetted the murder of Gallegos, shared Allen‟s intent to kill, and did so with
premeditation and deliberation, but also that such evidence was overwhelming.
C. Special circumstances
Childress contends that the special circumstances of gang participation and
multiple murder must be reversed because substantial evidence did not support a finding
that he harbored an intent to kill.
As relevant here, a penalty of LWOP is imposed for murder in the first degree if
the jury finds that “the defendant, in this proceeding, has been convicted of more than
one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).) LWOP is
also imposed upon a “defendant [who] intentionally killed the victim while the defendant
was an active participant in a criminal street gang . . . and the murder was carried out to
further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).) A defendant
who aided and abetted such murders is also subject to a penalty of LWOP if he or she
acted with the intent to kill. (§ 190.2, subd. (c).) To convict a defendant who was an
aider and abettor with the special circumstance of multiple murders or gang participation,
the jury was required to find that defendant acted with the intent to kill. (People v. Jones
(2003) 30 Cal.4th 1084, 1117-1118 (Jones).)
We have already found substantial evidence that Childress intentionally facilitated
the murders with full knowledge of his cohorts‟ intent to kill and that he premeditated
and deliberated the killing of Gallegos. In addition to the arguments we rejected in
coming to that conclusion, Childress suggests that the jury should have construed his
guess that his cohorts had a gun as a claim that he was unaware they had a gun, and that
the jury was required to believe his statement to detectives that he thought Massengale
merely intended to rob Martinez.
It is the province of the jury to believe or disbelieve testimony, resolve conflicts in
the testimony, and draw factual inferences. (People v. Alexander (2010) 49 Cal.4th 846,
883.) Further, the fact that the evidence can be reconciled with a contrary finding does
not require reversal. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
17
Moreover, we do not agree that the inferences Childress would have this court
draw are reasonable. To guess that something is true is not a denial; thus, Childress‟s
guess that his fellow gang member was armed cannot be reasonably construed as a claim
of ignorance. Further, although defense counsel argued that Childress merely intended to
rob Martinez, that is not what Childress said. Childress told Detective Yoshida the
reason he felt he could not refuse to do as the other gang members demanded. Detective
Yoshida suggested, “Yeah, otherwise, they‟re going to say, that guy --”; Childress
interrupted with: “He just rob him or he‟s --”; Detective Yoshida then completed his
sentence with “That guy bailed on us.” The more reasonable interpretation of Childress‟s
statement was that he drove the others, knowing they intended to shoot someone, because
he did not want the gang to think he merely meant to rob the victim.
In any event, the jury was not required to believe Childress‟s statement, or give it
any weight. (See People v. Garcia, supra, 2 Cal.2d at p. 679.) We again decline to
reweigh the evidence or resolve evidentiary conflicts. (See People v. Young, supra, 34
Cal.4th at p. 1181.)
II. Claimed instructional errors
A. Childress: aider and abettor instruction
Childress contends the trial court erred in failing to instruct the jury that the intent
of an aider and abettor must be formed before or during the commission of the offense.
He further contends that the omission resulted in a denial of due process. Both
contentions lack merit.
The trial court instructed the jury regarding aiding and abetting with CALJIC No.
3.01 as follows: “A person aids and abets the commission or attempted commission of a
crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator;
and two, with the intent or purpose of committing or encouraging or facilitating the
commission of the crime; and three, by act or advice aids, promotes, encourages or
instigates the commission of the crime. A person who aids and abets the commission or
attempted commission of the crime need not be present at the scene of the crime. Mere
presence at the scene of a crime which does not itself assist the commission of the crime,
18
does not amount to aiding and abetting. Mere knowledge that a crime is being committed
and the failure to prevent it does not amount to aiding and abetting.”
For aiding and abetting liability to attach, the intent to aid and abet must be formed
prior to or during the commission of the offense. (See People v. Cooper (1991) 53
Cal.3d 1158, 1164-1165 (Cooper).) Childress contends that the trial court should have
clarified this rule, such as by using CALCRIM No. 401.5
As respondent points out, Childress‟s failure to object to CALJIC No. 3.01
resulted in a forfeiture of this claim of error. (See People v. Hudson (2006) 38 Cal.4th
1002, 1011-1012.) Childress relies on Cooper to suggest that the California Supreme
Court disapproved of CALJIC No. 3.01 due to the failure of the instruction to clearly
state that intent must be formed prior to or during commission of the offense. To the
extent that Childress contends that CALJIC No. 3.01 is an incorrect statement of the law,
his failure to object did not result in forfeiture. (See People v. Hudson, supra, at p.
1012.)
However, the California Supreme Court did not disapprove of CALJIC No. 3.01.
It held that in a robbery case, the jury must be informed that the intent to aid and abet
must exist before the robbers reached a place of safety with the stolen property. (Cooper,
supra, 53 Cal.3d at pp. 1162-1163, 1167-1170.) As guilt in this case was not premised
on robbery, Cooper has no application here. Childress‟s reliance on People v. Pulido
(1997) 15 Cal.4th 713, is equally misplaced as he was not charged with felony murder.
In that case, the California Supreme Court held that the Cooper instruction should not be
given in felony murder cases; rather, the jury should be instructed that a nonkiller must
have been an aider and abettor or a coconspirator at the time of the killing. (Id. at pp.
723, 726.)
5 CALCRIM No. 401 reads: “To prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit
the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant‟s
words or conduct did in fact aid and abet the perpetrator‟s commission of the crime.”
19
Where, as here, the defendant has been charged with aiding and abetting a crime
committed with malice aforethought, and the jury has been instructed regarding
premeditation and deliberation, CALJIC No. 3.01 need not be clarified with a statement
that the intent to aid and abet must be formed before or during the actual offense rather
than afterward. (People v. Williams (199) 16 Cal.4th 635, 675.) Further, the instruction
adequately tracks the elements of aiding and abetting set forth in People v. Beeman,
supra, 35 Cal.3d at page 561; such elements presuppose that an aider and abettor has
formed the requisite intent prior to or during the commission of the crime, because “[i]t is
legally and logically impossible to both form the requisite intent and in fact aid, promote,
encourage, or facilitate commission of a crime after the commission of that crime has
ended.” (Cooper, supra, 53 Cal.3d at p. 1164.) As respondent notes, “Obviously, a
person cannot encourage, facilitate or commit a crime that has already been committed.”
CALJIC No. 3.01 thus sufficiently instructs the jury that it must find that the defendant‟s
own intent and the aiding and abetting coincided with his knowledge of the perpetrator‟s
intent to commit or attempt to commit the crime.
Thus, to the extent Childress assigns error to the trial court‟s failure to provide a
clarification of CALJIC No. 3.01, we agree with respondent that he has forfeited the
issue. (See People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Childress asks that
we nevertheless reach the issue as permitted by section 1259 because the error affected
his substantial rights. (See People v. Smithey (1999) 20 Cal.4th 936, 976.) Whether
substantial rights have been affected is determined under the prejudice test of People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Felix (2008) 160 Cal.App.4th
849, 857.) Thus, it must appear reasonably probable the defendant would have obtained
a more favorable result in the absence of error. (People v. Andersen (1994) 26
Cal.App.4th 1241, 1249.) Childress contends that this test is satisfied because there was
no substantial evidence that he shared an intent to kill or even knew that his companions
intended to shoot someone. However, we have already rejected those contentions,
finding substantial evidence of Childress‟s intent to kill the victims as well as his
premeditation and deliberation in the May 8 shooting.
20
Childress also contends that the fact of the jury‟s request for a readback of
Miralda‟s identification testimony was sufficient, by itself, to suggest prejudice.6 He
fails to explain however, how the timing of the formation of his intent to aid and abet a
murder could affect his identification as the driver, and we discern no connection
between the two concepts. Nor do we discern any reasonable probability that a
clarification of the timing of his intent would have affected the verdicts, as Childress did
not request an instruction regarding liability as an accessory and presented no substantial
evidence that he formed his intent to facilitate the murders only after the shooting
stopped.
Thus Childress‟s substantial rights were not adversely affected by the trial court‟s
reading of CALJIC No. 3.01, and Childress forfeited any claim of error based upon the
absence of language with more precise timing. The language was sufficiently clear to
convey to the jury the concept that intent to aid and abet must exist at the time of the
commission of the crime.
B. Childress: special circumstances instruction
Childress next contends that the trial court erred in failing to instruct the jury that
in order to find the special circumstances of an aider and abettor true, it must find that he
intended to kill.
An element of the multiple-murder special circumstance is an intent to kill in at
least one of the multiple murders. (People v. Rogers (2006) 39 Cal.4th 826, 892.) The
trial court was required to instruct the jury that to find the special circumstances true as to
Childress as an aider and abettor, it must find that he intended to kill. (Jones, supra, 30
Cal.4th at p. 1119; see also People v. Williams (1997) 16 Cal.4th 635, 689.) The
6 The only authority cited for Childress‟s readback contention is People v. Markus
(1978) 82 Cal.App.3d 477 (Markus), which has no relevance to the facts or circumstances
of this case. In Markus, the trial court answered in the negative to the jury‟s question
whether the defendant could be convicted of burglary as an aider and abettor if he formed
the intent to aid and abet after the entry by the actual perpetrator; the appellate court held
that the trial court erred, and that such a defendant would be an accessory. (See id., at pp.
480-482.) Later, the California Supreme Court disapproved the Markus rule. (People v.
Montoya (1994) 7 Cal.4th 1027, 1042-1045.)
21
prejudicial effect of a failure to so instruct the jury is measured under the test of
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Jones, supra, at p. 1119.)
“Under that test, an error is harmless only when, beyond a reasonable doubt, it did not
contribute to the verdict.‟ [Citation.]” (Ibid.; see also Neder v. United States (1999) 527
U.S. 1, 18.)
We agree with respondent that the error here was harmless beyond a reasonable
doubt. First, the trial court sequentially explained the two special circumstances alleged
against Childress; immediately after instructing with regard to the multiple-murder
special circumstance, the court instructed the jury that in order to find the gang special
circumstance, it must find that the defendant intentionally killed the victim while actively
participating in a criminal street gang. Second, as we have previously concluded after a
review of the whole record, overwhelming evidence supported a finding that Childress
aided and abetted the murder of Gallegos, shared Allen‟s intent to kill, and did so with
premeditation and deliberation. We conclude beyond a reasonable doubt that the error
did not contribute to the verdict. (See Neder v. United States, supra, 527 U.S. at pp. 15-
16; Chapman, supra, 386 U.S. at p. 24.)
C. Unanimity instruction
Defendants all contend that the evidence showed that more than one of their
statements to Love could have formed the basis of the charge of criminal threats, and that
the prosecution did not clearly elect to proceed on one of them. Defendants thus
conclude the trial court erroneously failed to give a unanimity instruction in the form of
CALJIC No. 17.01 or its equivalent, which instructs the jury to agree unanimously on the
act or acts constituting the offense.7
7 CALJIC No. 17.01 instructs: “The defendant is accused of having committed the
crime of [in Count ]. The prosecution has introduced evidence for the purpose of
showing that there is more than one [act] [or] [omission] upon which a conviction [on
Count ] may be based. Defendant may be found guilty if the proof shows beyond a
reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions].
However, in order to return a verdict of guilty [to Count ], all jurors must agree that [he]
22
A criminal threat is a statement, willfully made with the specific intent that it be
taken as a threat to commit a crime which “will result in death or great bodily injury to
another person . . . even if there is no intent of actually carrying it out, which, on its face
and under the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety . . . .” (§ 422.)
A criminal defendant is entitled to a unanimous jury verdict as a matter of due
process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th
1124, 1132.) “Additionally, the jury must agree unanimously the defendant is guilty of a
specific crime. [Citation.]” (Ibid.) A unanimity instruction is typically given where
several acts could have been charged as separate offenses. (People v. Maury (2003) 30
Cal.4th 342, 422.) Ordinarily, when more than one act could qualify as a criminal threat,
the prosecution must elect one of them or the court must give the unanimity instruction,
and the court must do so sua sponte in the appropriate case. (People v. Salvato (1991)
234 Cal.App.3d 872, 882.)
Here the prosecutor did not elect just one threat, but two.8 Although Love testified
that defendants made several threats, she expressly identified only one threat that placed
her in fear: she became frightened when Allen displayed his gun and said, “Bitch, you
can get smoked.” She understood him to mean that she could be shot and killed. In
closing argument, the prosecutor identified that threat as well as Childress‟s statement
“Bullets ain‟t got no name on it,” which Love understood to mean that anyone could be
shot. The prosecutor argued that Love‟s sustained fear was demonstrated by making a
911 call afterward and by the sound of her voice as she made the call.
[she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not
necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
8 The prosecutor also argued that Palmer made threats, but did not identify a
particular threat and argued that he was guilty as an aider and abettor by “pumping
[Childress and Allen] up.”
23
Defendants did not request a unanimity instruction and it is doubtful that such an
instruction was required here. No unanimity instruction is necessary if the defendant
offers the same defense or defenses to the various acts constituting the charged crimes.
(People v. Jennings (2010) 50 Cal.4th 616, 679.) Defendants did not offer a separate
defense with regard to each of the two threats identified by the prosecutor. Childress
argued that neither statement could reasonably be understood as a threat and that Love
was not placed in sustained fear by anything he or his companions said to her during the
encounter. Palmer and Allen both argued that Love was mistaken or lied in her
identification of them as occupants of the car.9
To the extent that a unanimity instruction may have been required, the same
circumstances demonstrate that its omission was harmless under either the standard of
Chapman or Watson. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [split
of authority as to which harmless error standard applies to unanimity instructional error].)
The omission of a unanimity instruction is harmless “if the record indicated the jury
resolved the basic credibility dispute against the defendant and would have convicted the
defendant of any of the various offenses shown by the evidence to have been committed.
[Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 307.) It is apparent here that the
jury believed Love and disbelieved defendants, as demonstrated by its rejection of Palmer
and Allen‟s identification defense and Childress‟s claim that Love simply did not
experience sustained fear. Having resolved such basic credibility issues against
defendants, the jury would not have found them guilty of making one criminal threat but
not the other.
Moreover, a jury is not required to decide unanimously which defendant is guilty
as an aider and abettor and which defendant is guilty as a direct perpetrator. (People v.
Majors (1998) 18 Cal.4th 385, 407.) Thus, even if some jurors believed that only Allen‟s
threat satisfied the elements of section 422 and others believed that only Childress‟s
threat satisfied the elements, a unanimity instruction or lack of it could not have affected
9 Some of Love‟s testimony was confusing or conflicting and her behavior
throughout cross-examination was odd.
24
the jury‟s verdict, as all three defendants participated in the threats as aiders and abettors.
Palmer encouraged Allen by “pumping him up” and displaying a gun. Childress
facilitated the threats by driving the car and stopping alongside Love while his fellow
gang members displayed their guns and threatened her. Both Allen and Childress offered
encouragement or assistance by making a threat themselves. We conclude beyond a
reasonable doubt that the omission of a unanimity instruction did not contribute to the
verdict. (See Chapman, supra, 386 U.S. at p. 24.)
D. Attempted criminal threat
Palmer and Allen contend that substantial evidence that Love did not experience
sustained fear required the trial court to instruct, sua sponte regarding the elements of
attempted criminal threat.
“We apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.] A trial court must
instruct the jury sua sponte on a lesser included offense only if there is substantial
evidence, „“that is, evidence that a reasonable jury could find persuasive”‟ [citation],
which, if accepted, „“would absolve [the] defendant from guilt of the greater offense”
[citation] but not the lesser‟ [citation].” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
It does not mean “„any evidence, no matter how weak.‟” (People v. Breverman (1998) 19
Cal.4th 142, 162.)
As relevant here, a defendant is guilty of attempting to make a criminal threat
when, “acting with the requisite intent, makes a sufficient threat that is received and
understood by the threatened person, but, for whatever reason, the threat does not
actually cause the threatened person to be in sustained fear for his or her safety even
though, under the circumstances, that person reasonably could have been placed in such
fear . . . .” (People v. Toledo (2001) 26 Cal.4th 221, 231.) The trial court was thus
required to instruct the jury regarding attempted criminal threat only if substantial
evidence would support a finding that Love did not experience sustained fear.
Fear is “sustained” when it lasts “a period of time that extends beyond what is
momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
25
Allen points to Love‟s testimony that she was not initially afraid but became afraid when
Allen pointed the gun at her and said, “Bitch, you can get smoked”; and her statement
when identifying Allen, “Yeah, he had me out there for a long time in the sun. I was
hungry.” Allen concludes from these statements, when considered with Love‟s
immediate notification to the police, her strange behavior, and lack of credibility, that
substantial evidence supported a finding that she felt more inconvenienced than afraid,
and that any fear was momentary. We agree with respondent that such evidence of
Love‟s lack of fear was not substantial and did not require sua sponte instruction on
attempted criminal threat.
We also agree that if substantial evidence had supported an instruction on
attempted criminal threat, any error in omitting it would have been harmless. Error in
failing to instruct on a lesser included offense is reviewed under the Watson test, which
does not warrant reversal unless it appears reasonably probable after a review of the
entire record, that defendants would have obtained a more favorable result had the
asserted error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 149, citing
Watson, supra, 46 Cal.2d at p. 836; Cal. Const., art. VI, § 13.)
Fear is a state of mind that should be inferred from all the circumstances, even
when the victim denies having been afraid. (See People v. Renteria (1964) 61 Cal.2d
497, 498-499.) A review of all the testimony reveals compelling evidence that Love was
frightened by defendants‟ threats and that she experienced sustained fear. Although Love
was not afraid at first because she thought defendants were flirting, she correctly
concluded defendants were Blood gang members who were threatening her because of
the color of her blue bandanna; and she soon became frightened when Palmer kept
“pumping [Allen] up” while Allen pointed the gun at her and said, “Bitch, you can get
smoked.”
Love‟s impression that defendants held her for “a long time” was not simply a
complaint about being in the sun as Allen argues. Love also testified, “He had the gun on
me a very long time.” Love‟s fear was sustained not only during the very long time that
she was detained at gunpoint; her call to 911 indicated that she was still frightened at that
26
time. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1538 [threat sufficiently
frightening that victim called police].)
Finally, Love testified she was still in fear of defendants at the time of her
testimony. Although Love also claimed that defendants “intimidated” her rather than
scared her, she agreed with the prosecutor that she was “afraid to be in court with some
people.” Soon after she began her testimony, Love requested a break, and when she
resumed, she complained that Childress kept staring at her, making her feel
uncomfortable. Given such testimony, it is not reasonably probable that defendants
would have obtained a more favorable result had the instruction been given. (See
Watson, supra, 46 Cal.2d at p. 836.)
E. CALJIC No. 2.92 / identification
The trial court read CALJIC No. 2.92 to the jury, listing a dozen factors to
consider in determining the weight to be given eyewitness identification testimony.
Palmer contends that the court should have modified the instruction to delete reference to
the extent to which the witness is either certain or uncertain of the identification. He
argues that this factor was irrelevant, as no expert opinion was presented to support a
positive correlation between witness confidence and accuracy of an identification.
Palmer further argues that the certain/uncertain factor was erroneous, as demonstrated by
Dr. Shomer‟s opinion and current scientific evidence showing no such positive
correlation.
CALJIC No. 2.92 is a model instruction listing in a neutral manner, appropriate
factors relevant to a jury‟s determination of the existence of reasonable doubt regarding
identification. (See People v. Wright (1988) 45 Cal.3d 1126, 1141-1142 (Wright).)
“[A]n explanation of the effects of those factors is best left to argument by counsel, cross-
examination of the eyewitnesses, and expert testimony where appropriate.” (Id. at p.
1143, fn. omitted.)
Palmer did not object to the instruction and does not claim to have suggested a
modification. The trial court had no sua sponte obligation to modify the instruction to
delete the certain/uncertain language. (People v. Ward (2005) 36 Cal.4th 186, 213
27
(Ward).) Moreover, a substantially identical argument was rejected by our Supreme
Court in People v. Johnson (1992) 3 Cal.4th 1183, 1231 (Johnson); as well as by an
appellate court in People v. Sullivan (2007) 151 Cal.App.4th 524, 561-562, and People v.
Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303, disapproved on another ground in
People v. Martinez (1995) 11 Cal.4th 434, 452. We are bound by the California Supreme
Court decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Palmer nevertheless contends that we may reconsider those precedents. He claims
that “the issue is not necessarily settled” because in Ward, the Supreme Court suggested
that the wording of CALJIC No. 2.92 may be erroneous. We found only one statement in
Ward regarding CALJIC No. 2.92 containing the word “erroneous.” After finding no
error in the trial court‟s failure to modify CALJIC No. 2.92 sua sponte, the court
concluded: “And even assuming the wording of the standard instruction regarding an
eyewitness‟s level of certainty was erroneous, the error was harmless.” (Ward, supra, 36
Cal.4th at p. 214.) Such a rhetorical device hardly signals that the issue is not settled;
indeed, Ward‟s approval of the instruction indicates the contrary.
In an attempt to distinguish Johnson, Palmer points to the Supreme Court‟s
rejection of the defendant‟s claim that the certain/uncertain language was improper
because it contradicted her expert‟s otherwise uncontradicted testimony, “thereby
implying the jury could not rely on her evidence.” (Johnson, supra, 3 Cal.4th at p. 1231.)
The court found no error in part because “the jury was instructed that it should consider
„[t]estimony of any expert regarding acquisition, retention, or retrieval of information
presented to the senses of an eyewitness,‟” thus leaving the jury free to be persuaded by
the expert‟s opinion. (Id. at p. 1232.) Palmer suggests that Johnson is not binding
precedent here because there was no such instruction. We disagree. The Johnson court
made clear that the trial court was not required to instruct the jury “to view the evidence
through the lens of [the defendant‟s] theory.” (Ibid.) Thus, although the jury was
expressly directed to consider the expert‟s opinion in Johnson, we do not read the
Johnson opinion as requiring such an instruction. Moreover, as given here, CALJIC No.
2.92 was sufficient to permit the jury to infer, if persuaded by the expert‟s testimony, that
28
a “positive identification was not necessarily an accurate one.” (Johnson, supra, 3
Cal.4th at p. 1232.) The jury was instructed that the listed factors were not exclusive, that
it should consider other factors; it was also instructed to consider whether the
identification was, in fact, a product of the witness‟s own recollection, and “any other
evidence relating to the witness‟[s] ability to make an identification.”
Palmer also suggests that Johnson is not applicable here because it has since been
“firmly established, based upon numerous scientific studies, that there is no correlation
between witness confidence and accuracy.” Those studies are not part of the record on
appeal, Palmer does not request judicial notice, and he cites no authority suggesting that
we may disregard decisions of the California Supreme Court based upon such references
to scientific studies. In fact, the principle of stare decisis is not a discretionary doctrine
for courts of appeal to disregard in this manner. (People v. Rippberger (1991) 231
Cal.App.3d 1667, 1687-1688.)
In any event, had there been error, it would have been harmless. We apply the
Watson test. (See Wright, supra, 45 Cal.3d at p. 1144.) First, as respondent points out,
the instruction merely suggested to the jury that it could “consider” whether the witness
was certain or uncertain. CALJIC No. 292 did not instruct the jury to give one factor
more weight than the other or to give either factor any weight at all; thus it is unlikely
that the instruction had any substantial effect on the jury.
Further, the identification evidence was overwhelming, as we discuss in the next
section. We thus conclude that it was not reasonably probable that Palmer would have
obtained a more favorable result had the disputed language been deleted. (See Watson,
supra, 46 Cal.2d at p. 836.)
III. Aranda/Bruton/Crawford
Palmer contends that Allen‟s redacted police interview was admitted into evidence
in violation of his right to a fair trial and the confrontation clause of the Sixth
Amendment of the United States Constitution, under the Aranda-Bruton or Bruton rule,
which precludes the admission of a statement or confession of a nontestifying defendant
if the statement incriminates a codefendant in a joint trial. (Bruton, supra, 391 U.S. 123;
29
Aranda supra, 63 Cal.2d 518.) Palmer also contends that his confrontation right was
violated under the reasoning of Crawford, supra, 541 U.S. 36, in which the United States
Supreme Court held that the Sixth Amendment bars the admission of testimonial
statements of an unavailable declarant unless the defendant had a prior opportunity for
cross-examination. (Id. at pp. 53-54, 68.)
Prior to trial Palmer brought a motion to be tried separately from his codefendants,
in part based upon Allen‟s recorded interview with detectives. The prosecutor stated his
intention to not introduce the statement unless Allen testified, and the trial court denied
the motion. Some months later, just before jury selection, the prosecutor proposed to
introduce a redacted transcript of the Allen interview. After the trial court ordered
additional redactions, Palmer‟s counsel objected to the use of the pronoun “we” in the
redacted statement. The court found that Allen‟s statements did not directly or indirectly
implicate any codefendant, ordered the prosecutor to redact the tape accordingly, and
overruled Palmer‟s objections.
The Crawford objection was renewed at trial during Detective Calicchia‟s
testimony. Palmer‟s counsel interposed a continuing objection to statements Allen made
to the detective. As grounds for the objection counsel stated: “Violates Miranda10 and
violates Crawford.” We turn first to Palmer‟s contentions under the Bruton rule, as any
statement admissible under that rule is also admissible under Crawford. (People v.
Stevens (2007) 41 Cal.4th 182, 199.)
“Ordinarily, a witness whose testimony is introduced at a joint trial is not
considered to be a witness „against‟ a defendant if the jury is instructed to consider that
testimony only against a codefendant. This accords with the almost invariable
assumption of the law that jurors follow their instructions [citation] . . . .” (Richardson v.
Marsh (1987) 481 U.S. 200, 206-207 (Richardson).) “In Bruton, [the United States
Supreme Court] recognized a narrow exception to this principle: [It] held that a
defendant is deprived of his Sixth Amendment right of confrontation when the facially
10 Counsel did not specify, but was apparently referring to Miranda v. Arizona
(1966) 384 U.S. 436, 444-445.
30
incriminating confession of a nontestifying codefendant is introduced at their joint trial,
even if the jury is instructed to consider the confession only against the codefendant.”
(Richardson, at p. 207) When the defendant is not named in the confession and it is not
facially incriminating, “the calculus changes.” (Id., at p. 211.) Thus, “the Confrontation
Clause is not violated by the admission of a nontestifying codefendant‟s confession with
a proper limiting instruction when . . . the confession is redacted to eliminate not only the
defendant‟s name, but any reference to his or her existence.” (Ibid., fn. omitted.)
“Redactions that simply replace a name with an obvious blank space or a word
such as „deleted‟ or a symbol or other similarly obvious indications of alteration,
. . . leave statements that, considered as a class, so closely resemble Bruton‟s unredacted
statements that . . . the law must require the same result.” (Gray v. Maryland (1998) 523
U.S. 185, 192 (Gray); see also People v. Lewis (2008) 43 Cal.4th 415, 455.) Similarly,
merely substituting “pronouns or similar neutral terms for the defendant‟s name will not
invariably be sufficient to avoid violation of the defendant's Sixth Amendment
confrontation rights.” (People v. Fletcher (1996) 13 Cal.4th 451, 468 (Fletcher).) An
“obvious deletion may well call the jurors‟ attention specially to the removed name. By
encouraging the jury to speculate about the reference, the redaction may overemphasize
the importance of the confession‟s accusation -- once the jurors work out the reference.
(Gray, supra, at p. 193.) Thus, “considered as a class, redactions that replace a proper
name with an obvious blank, the word „delete,‟ a symbol, or similarly notify the jury that
a name has been deleted are similar enough to Bruton’s unredacted confessions as to
warrant the same legal results.” (Gray, at p. 195.)
The redacted interview was played for the jury after the trial court admonished:
“[T]he contents of this are admissible and I believe admitted against defendant Allen only
and not to any other defendant.” The court also instructed the jury at the end of the trial
not to consider the statement of any defendant against any codefendant. Further, the
prosecutor never mentioned the curfew issue, nor did he argue that Allen‟s statements
incriminated Palmer. In the interview, Allen never mentioned Palmer by name or
nickname and did not give any description that might identify him. The redacted
31
interview did not facially incriminate Palmer or obviously imply his guilt; we thus
assume the jurors followed their instructions. (See Richardson, supra, 481 U.S. at pp.
206-209.)
Palmer contends that the redactions were inadequate because Allen referred to
other perpetrators in the car. The detectives suggested that there were “three guys” in the
car and Allen referred to “we,” “they” and “them.” In addition, Palmer points to Allen‟s
admission that he had received a citation for a curfew violation sometime in the past.
Palmer contends that this admission identified Palmer as one of the men in the car with
him because Officer Vasquez had earlier testified that she stopped Allen and Palmer in
August 2007 for a curfew violation.11 Palmer argues that this testimony, coupled with
Allen‟s admission “led to the obvious inference that Palmer was one of the other persons
who were with Allen in the car at the time of the crimes.”
In essence, Palmer contends that Allen‟s confession was so “powerfully
incriminating” that the jurors could not be expected to follow the court‟s instruction to
ignore it as to Palmer; and that the editing was insufficient because “reasonable jurors
could not avoid drawing the inference that the defendant was the coparticipant designated
in the confession by symbol or neutral pronoun.” (Fletcher, supra, 13 Cal.4th at pp. 455-
456.) We disagree and find any such inference to be strained, or in respondent‟s words,
defendant “attempts to stretch Aranda/Bruton too far.”
The only inference that reasonable jurors could not avoid drawing from Officer
Vasquez‟s testimony and the use of the pronouns “we” and “they” was that Allen and
Palmer belonged to the same gang and were acquainted, as were many of the members of
the P-Stones mentioned throughout the trial who committed crimes together. Many of
11 We note that it was Palmer‟s counsel who in cross-examination elicited Officer
Vasquez‟s reason for stopping Allen and Palmer in August 2007. Her testimony came
more than a week after counsel had been given the redacted transcript and the trial court
had made additional redactions. We need not consider whether this was invited error, as
we conclude there was no error and that Palmer suffered no prejudice from the admission
and testimony regarding a curfew violation.
32
these gang members surely found themselves in the company of different fellow gang
members at various times and sometimes with more than one or two other gang members.
Palmer was in Allen‟s company in August 2007 due to a possible curfew violation by one
of them; Allen admitted that at some unnamed time in the past he received a curfew
citation; there was no evidence to suggest that these two occasions were the same or that
Allen received his citation in August 2007. We cannot conclude that “reasonable jurors
could not avoid drawing the inference” from such evidence that Allen and Palmer were
together on May 8, 2008. (Fletcher, supra, 13 Cal.4th at p. 456.)
We conclude that the interview was sufficiently edited to avoid incriminating
Palmer, and thus the jury followed the trial court‟s instructions not to consider it against
Palmer. As a result there was no Crawford error. (See People v. Stevens, supra, 41
Cal.4th at p. 199.)
Nevertheless, any error would be harmless beyond a reasonable doubt under the
standard of Chapman. Aranda/Bruton error is deemed harmless if “„the properly
admitted evidence is overwhelming and the incriminating extrajudicial statement is
merely cumulative of other direct evidence . . . .‟ [Citation.]” (People v. Burney (2009)
47 Cal.4th 203, 232.) Such is the case here. Childress, Allen and Palmer were members
of the same criminal street gang whose primary activities included murder and attempted
murder. Both Miralda and Love identified Palmer at trial and earlier at the preliminary
hearing as the front passenger in Childress‟s car. Four days after the shooting, Miralda
identified Palmer in a photographic lineup as the front seat passenger who wore a gray
sweater with a red design. When Love was shown a photographic lineup on the same
day, she thought that Palmer resembled the front seat passenger, and at a live lineup three
days later, Love positively identified Palmer as the front seat passenger. Although Love
initially thought that Palmer‟s shirt had buttons, she and Miralda identified the red and
gray sweatshirt found in Palmer‟s home as the one he was wearing when they saw him.
Palmer‟s cell phone records showed that he received a call through a cell tower within
3/10 mile of the scene of the Gallegos murder at approximately 10:25 a.m. on that day.
33
Palmer contends that the weaknesses in the prosecution‟s case are demonstrated
by the absence of physical evidence such as his fingerprints in the vehicle and guns or
bullets on his person; the jury‟s request for a readback of Miralda‟s testimony identifying
Childress as the driver and describing the shooter and the passenger; the “lengthy”
deliberations of about six hours; that Love initially thought Palmer had worn a red and
gray shirt with a collar and buttons; that Love was unsure of her selection of Palmer‟s
photograph; that Miralda was unsure of his identification of Palmer at the live lineup; and
the custodian of Palmer‟s cell phone records testified that a cell phone was normally
within one to one and a half miles of a cell tower, but he had heard of cell towers with a
range of up to six miles.
Such evidence did not create any substantial conflict. Because there was no
evidence contradicting Miralda‟s identification or the location of the cell tower through
which a call to Palmer came at 10:25 a.m., no substantial dispute was created. The
deliberations were not lengthy considering that the trial had lasted five days and involved
three defendants, five counts, and numerous special allegations. (Cf. People v. Houston
(2009) 130 Cal.App.4th 279, 301.) The readback request was for testimony relating to
the identification of all three defendants and did not, without more, suggest that the jury
was troubled by the issue of Palmer‟s identification. We conclude beyond a reasonable
doubt that Allen‟s confession “did not contribute to the verdict obtained” against Palmer
and thus any error in admitting it was harmless. (Chapman, supra, 386 U.S. at p. 24.)
IV. Discretionary severance
Allen and Palmer contend the trial court abused its discretion in denying their
motions to conduct a separate trial as to count 1, charging Childress with the murder of
Martinez. They argue that severance was warranted because the evidence was
inflammatory and unjustifiably corroborated the case against them.
Under section 954, “[t]wo or more offenses „of the same class,‟ or „connected in
their commission,‟ may be charged and tried together, but the trial court may sever counts
in the interest of justice. [Citation.] When exercising its discretion, the court must
balance the potential prejudice of joinder against the state‟s strong interest in the
34
efficiency of a joint trial. [Citation.] [¶] Joinder is generally proper when the offenses
would be cross-admissible in separate trials, since an inference of prejudice is thus
dispelled. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 126.) Because the joined
offenses involved murder, they were the same class of crimes, satisfying the statutory
requirements for joinder, and placing the burden on Palmer and Allen to make a clear
showing of a substantial danger of prejudice if the crimes were tried together. (People v.
Bradford (1997) 15 Cal.4th 1229, 1315.)
“We review a trial court‟s denial of a severance motion for abuse of discretion
based on the facts as they appeared at the time the court ruled on the motion. [Citation.]
If the court‟s joinder ruling was proper at the time it was made, a reviewing court may
reverse a judgment only on a showing that joinder „“resulted in „gross unfairness‟
amounting to a denial of due process.”‟ [Citation.]” (People v. Avila (2006) 38 Cal.4th
491, 575 (Avila).) Palmer and Allen bear the burden to make a “„clear showing of
prejudice to establish that the trial court abused its discretion . . . .‟ [Citations.]” (Alcala
v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) “Even if the court abused its
discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability,
defendant would have received a more favorable result in a separate trial. [Citation.]”
(Avila, supra, at p. 575.)
“Whether a trial court abused its discretion in denying a motion to sever
necessarily depends upon the particular circumstances of each case. [Citations.]”
(People v. Marshall (1997) 15 Cal.4th 1, 27.) “Refusal to sever may be an abuse of
discretion where: (1) evidence on the crimes to be jointly tried would not be cross-
admissible in separate trials; (2) certain of the charges are unusually likely to inflame the
jury against the defendant; (3) a „weak‟ case has been joined with a „strong‟ case, or with
another „weak‟ case, so that the „spillover‟ effect of aggregate evidence on several
charges might well alter the outcome of some or all of the charges; and (4) any one of the
charges carries the death penalty or joinder of them turns the matter into a capital case.
35
[Citations.]” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval); see also
Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938-939 (Calderon).)12
The first Sandoval factor is satisfied, as Palmer agreed in his motion and Allen
agreed at the hearing on his motion that there would be cross-admissibility of gang
membership and motive. The lengthy testimony of the gang expert regarding the culture
of the P-Stone gang, Childress‟s membership in the gang, the gang‟s hatred for the 18th
Street gang, and the likelihood that the Gallegos shooting was motivated by that hatred
would have been admissible in both cases, as both murders were alleged to have been
committed for the benefit of or in association with a gang with the intent to promote,
further, or assist in criminal conduct by gang members. (See § 186.22, subd. (b).) This
evidence alone justified the trial court in denying the motion. (See People v. Davis
(1995) 10 Cal.4th 463, 508.)
Both Palmer and Allen argue that only the gang evidence was cross-admissible,
suggesting that the quantum of cross-admissibility of evidence was insufficient. If so,
there is no minimum cross-admissibility requirement, as they suggest; indeed, there need
be no cross-admissible evidence at all to justify a joint trial of the same class of crime.
(Alcala, supra, 43 Cal.4th at pp. 1221-1222; § 954.1.)
Next, Allen and Palmer contend that the second Sandoval factor militated in favor
of severance, arguing the fact that both crimes were gang related was inflammatory, and
that the Martinez shooting was particularly inflammatory because the incident was
videotaped and Martinez was shot twice in the head while panhandling.13 We disagree,
12 For convenience we refer to the factors as the Sandoval factors. The fourth factor
is inapplicable as the prosecution did not seek the death penalty against Childress or
Palmer, and Allen was a minor when the crimes were committed and thus ineligible for
the death penalty. (See § 190.5, subd. (a).)
13 To the extent Palmer or Allen means to suggest that because one of the bullets
entered the back of Martinez‟s head, the murder was an “execution-style” shooting,
which was a significant fact in Calderon, we reject the suggestion. There was no
evidence here that the bullet to the back of the head was fired at close range or that
Martinez had been restrained or incapacitated.
36
as both murders were equally inflammatory. The Gallegos murder was no less heinous
than the Martinez murder in that 19-year-old Gallegos was shot four times by gang
members while she was sitting in her car chatting with her boyfriend. The fatal bullets
tore through her stomach, heart, lung, kidney, and liver. The Martinez murder was not
“unusually likely to inflame the jury against” Palmer or Allen. (Sandoval, supra, 4
Cal.4th at p. 172, italics added.)
Finally, both Palmer and Allen contend that the evidence in the Martinez murder
was strong compared to that in the Gallegos murder and thus served to bolster a weak
case against them. We have already rejected Palmer‟s contention that the identity
evidence against him was weak as well as Allen‟s contention that the case against him
was weak, given his admission of involvement in both incidents on May 8, 2009. Allen
told detectives he was a passenger in a car when they saw the woman in the blue
bandanna and “talk[ed] shit” to her. He admitted he was present at the Gallegos shooting
and that there was a gun in the car. Miralda identified the shooter as Allen, and Allen‟s
fingerprints were found in Childress‟s car.
Such evidence against Palmer and Allen was sufficient to support the judgments
without the Martinez evidence. “[A]s between any two charges, it always is possible to
point to individual aspects of one case and argue that one is stronger than the other. A
mere imbalance in the evidence, however, will not indicate a risk of prejudicial „spillover
effect,‟ militating against the benefits of joinder and warranting severance of properly
joined charges. [Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 781.)
“„[D]efendants are not entitled to severance merely because they may have a better
chance of acquittal in separate trials.‟” (Ibid., quoting Zafiro v. United States (1993) 506
U.S. 534, 540.)
In sum, Allen and Palmer have not shown that the evidence at trial would not be
cross-admissible in separate trials, that the Martinez charge was unusually inflammatory,
or that their case was so weak when compared to the Martinez case to risk a spillover
effect; thus they have not established an abuse of discretion. (See Sandoval, supra, 4
Cal.4th at pp. 172-173.) Nor have Palmer or Allen shown a probability that there was a
37
spillover effect on them from the Martinez charge and thus they have not shown gross
unfairness or even a reasonable probability of a more favorable result in a separate trial.
(Avila, supra, 38 Cal.4th at p. 575.)
V. Allen: cruel and unusual punishment
Allen contends that because he was a juvenile at the time he committed his crimes,
his aggregate sentence of 107 years to life is cruel and unusual in violation of the Eighth
Amendment to the United States Constitution.14
Generally a sentence does not violate the Eighth Amendment so long as the
ultimate punishment is not grossly disproportionate to the crime; and no individualized
proportionality review for a sentence less than death is required unless the punishment
gives rise to an inference that it was grossly disproportionate to the crime. (Harmelin v.
Michigan (1991) 501 U.S. 957, 995-996; Solem v. Helm (1983) 463 U.S. 277, 288-289.)
In 2005, the United States Supreme Court determined that capital punishment was
a per se grossly disproportionate sentence for defendants who were juveniles at the time
they committed the crime for which they were sentenced, even when the crime was
murder. (Roper v. Simmons (2005) 543 U.S. 551, 578-579 (Roper).) A few years later,
the court held that the Eighth Amendment categorically barred LWOP for minors who
committed nonhomicide offenses. (Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct.
2011] (Graham).) More recently, the United States Supreme Court has held that a
sentencing scheme that mandates LWOP sentences for minors, even those who commit
murder, is barred by the Eighth Amendment. (Miller v. Alabama (2012) __ U.S. __ [132
S.Ct. 2455, 2469] (Miller).15 The Miller holding was limited: “„A State is not required
14 Allen also contends that his sentence was cruel or unusual in violation of the
California Constitution but does not set forth a separate argument under the California
Constitution.
15 Following its reasoning in Graham and Roper, the Supreme Court explained that
immaturity and an underdeveloped sense of responsibility gave children a tendency
toward “recklessness, impulsivity, and heedless risk-taking”; they are “„more vulnerable .
. . to negative influences and outside pressures‟”; “have limited „contro[l] over their own
environment‟ and lack the ability to extricate themselves from horrific, crime-producing
38
to guarantee eventual freedom,‟ but must provide „some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.‟” (Id. at p. 2469.)
Following the reasoning of Miller, the California Supreme Court held that a
cumulative sentence of 110 years to life for attempted murder committed by a juvenile
was the “functional equivalent of a life without parole sentence” and thus categorically
barred under Graham. (People v. Caballero (2012) 55 Cal.4th 262, 267-269
(Caballero).) However, the court expressly left “Miller‟s application in the homicide
context to a case that poses the issue.” (Caballero, at p. 268, fn. 4.)16
Relying on People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas), and People
v. Argeta (2012) 210 Cal.App.4th 1478 (Argeta), Allen suggests that resentencing is
required in all pre-Miller juvenile cases of LWOP or the functional equivalent in which
the sentencing court did not have the benefit of Miller’s definition of the appropriate and
lawful scope of its discretion and thus did not conduct an individualized analysis of the
suggested factors. We need not rely on Miller however, to find Allen‟s sentence
unauthorized, as the California statute does not permit LWOP sentences for defendants
who were 14 or 15 years old at the time they committed murder. (§ 190.5; People v.
Demirdjian (2006) 144 Cal.App.4th 10, 17 (Demirdjian).)
Although the California Supreme Court has not reached the issue of Miller‟s
applicability to murder, the court did make clear that a life sentence with a parole
settings. [Citation.] And . . . a child‟s character is not as „well formed‟ as an adult‟s; his
traits are „less fixed‟ and his actions less likely to be „evidence of irretrievabl[e]
deprav[ity].‟ [Citation.]” (Miller, supra, 132 S.Ct. at p. 2464.) The court concluded that
“imposition of a State‟s most severe penalties on juvenile offenders cannot proceed as
though they were not children”; and sentencing courts must “have the ability to consider
the „mitigating qualities of youth.‟ [Citation.]” (Id. at pp. 2466-2467.)
16 The application of Miller to an LWOP sentence for a first degree special
circumstance murder personally committed by the defendant is currently a question
before the California Supreme Court. (See, e.g., People v. Siackasorn (2012) 211
Cal.App.4th 909, review granted Mar. 20, 2013, S207973; People v. Moffett (2012) 209
Cal.App.4th 1465, review granted Jan. 03, 2013, S206771; People v. Gutierrez (2012)
209 Cal.App.4th 646, review granted Jan. 03, 2013, S206365.)
39
eligibility date that falls outside the juvenile offender‟s natural life expectancy is the
functional equivalent of LWOP. (Caballero, supra, 55 Cal.4th at pp. 267-268.) Indeed,
the court relied in part on our pre-Miller opinion to that effect. (See People v. Mendez
(2010) 188 Cal.App.4th 47, 50-51 (Mendez).) In Mendez, we determined that 84 years to
life amounted to a de facto LWOP sentence, as the minimum parole date exceeded the
76-year life expectancy of an 18-year-old American male. (Mendez, supra, 188
Cal.App.4th at pp. 62-63.) The minimum parole period of 107 years imposed on Allen
clearly exceeds that. Thus, before reaching any constitutional issue, we observe that
Allen‟s sentence is unauthorized.
Nevertheless, Allen‟s sentence for first degree murder of 25 years to life in prison
was mandated by statute. (§ 190, subd. (a).) The court was also required to impose the
25-year-to-life enhancement under section 12022.53. Thus the trial court had the
authority to impose a sentence of 50 years to life plus life, but no less.
Allen contends that even a sentence of 50 years to life would exceed his expected
life span and would be cruel and unusual under the principles enunciated in Graham,
Miller, and Caballero. We disagree. A 50-year minimum parole period for a 15-year-old
offender provides reasonable opportunity for parole before his life is expected to end.
(See Mendez, supra, 188 Cal.App.4th at pp. 62-63; Demirdjian, supra, 144 Cal.App.4th
at p. 17.)
Allen contends that Demirdjian and other cases are outdated as they were decided
prior to the publication of Miller and Caballero; he concludes that his sentence should be
vacated because there is no indication in the record that the trial court considered such
factors suggested by the Supreme Court as the offender‟s immaturity, his upbringing,
mental and emotional development, impetuosity, ability to appreciate risks and
consequences, and his potential for rehabilitation. (Miller, supra, 132 S.Ct. at pp. 2464-
2465, 2468-2469.) Pointing out the more recent cases of Thomas and Argeta, in which
appellate courts order resentencing in light of Miller, Allen suggests that resentencing is
required in all pre-Miller juvenile LWOP cases. As we have determined that as modified
40
here, the sentence will no longer be a functional LWOP sentence, the remedy used in
such cases is unnecessary.17
Allen provides website links to the United States Census Bureau, the Center for
Disease Control, and other sites setting forth the average life expectancy for a male
African-American born between 1990 and 1995. As Allen does not request judicial
notice of the materials nor provide copies, we decline to conduct our own Internet
research or create a new, fluid life expectancy rule.
Moreover, such a rule would prove unworkable. This is illustrated by the
reasoning in Argeta, in which defendant contended his functional equivalent LWOP
sentence should have been categorically barred under Graham, Miller, and Caballero
because he was just a few months past his 18th birthday when he committed his crimes.
(Argeta, supra, 210 Cal.App.4th at p. 1482.) There, the appellate court noted that such
arguments had “been made in the past, and „while drawing the line at 18 years of age is
subject . . . to the objections always raised against categorical rules . . . [, it] is the point
where society draws the line for many purposes between childhood and adulthood.‟
[Citations.]” (Ibid., quoting Roper, supra, 543 U.S. at p. 574, and citing Graham, supra,
130 S.Ct. at p. 2016.) Similarly, the line for life expectancy must be drawn at an average
of all American men. Otherwise the uncertainty and equities that would result from
imposing all the variables of race, culture, region, family history, ad infinitum, would
17 Further, Allen could have sought an individualized proportionality review in the
trial court under the California Constitution, which has long called for a consideration of
relevant factors relating to youth. (See People v. Dillon (1983) 34 Cal.3d 441, 479
(Dillon); In re Lynch (1972) 8 Cal.3d 410, 424; Cal. Const., art. 1, § 17.) Relevant
factors for youthful offenders include, like the Graham/Miller factors, age, prior
criminality, personal characteristics, individual potential, and state of mind. (See Dillon,
supra, at pp. 479-480, 482 [17-year-old offender].) Defense counsel did not produce
evidence of any mitigating factor other than Allen‟s age. Further, Allen does not contend
here that the minimum terms mandated by sections 190, subdivision (a), and 12022.53
are unconstitutional as applied to him, nor did he make that contention below; rather he
claimed that a term of more than 50 years to life was cruel or unusual under the
California Constitution.
41
effectively eviscerate our mandatory sentencing laws. As there is no prohibition against
mandatory sentences of less than LWOP for offenders who committed murder under the
age of 16, there is no need to create the categorical bar advocated by Allen or the many
other categorical bars that would spring from it.
DISPOSITION
The judgments against Childress and Palmer are affirmed. Allen‟s sentence is
modified as follows: as to count 2, the term of 25 years to life, plus a consecutive a
firearm enhancement of 25 years to life pursuant to section 12022.53, subdivisions (d)
and (e) remains unchanged, and all other terms and enhancements remain imposed but
are stayed, for a total unstayed term of 50 years to life plus life in prison. In all other
respects, the judgment against Allen is affirmed. The trial court is directed to prepare an
amended abstract of judgment for Allen and to forward it to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________, J.
CHAVEZ
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
42