People v. Birdsall ( 2022 )

Filed 4/22/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A159555
v. (Alameda County Super. Ct.
CHRISTIAN BIRDSALL, No. H54947A)
Defendant and Appellant.
A jury convicted defendant Christian Birdsall of the first degree
murder of Barbara Latiolais (Pen. Code,1 § 187, subd. (a)) and arson of an
inhabited structure (§ 451, subd. (b)). As to the murder charge, the jury
found three special-circumstance allegations to be true—that the murder was
committed by means of lying in wait and during a robbery and a burglary
(§ 190.2, subd. (a)(15), (17)(A), (G)). The trial court sentenced Birdsall, who
was 16 years old at the time of the crime, to life imprisonment without the
possibility of parole (LWOP) for the murder, plus a consecutive five-year term
for arson.
In this appeal (his second, after we conditionally reversed the judgment
and remanded for a juvenile court transfer hearing) (see People v. Birdsall
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts II.A., II.B., and
II.D.
1 Undesignated statutory references are to the Penal Code.
1
(Nov. 30, 2018, A146666) [nonpub. opn.]), Birdsall contends the court erred
by failing to suppress inculpatory statements he made to police, which he
argues were obtained in violation of Miranda2 and were involuntary. He also
presents several challenges to his sentence on constitutional and other
grounds. Finally, in a supplemental brief, Birdsall claims that, in light of
recent legislation revising the law of murder, one of the court’s instructions to
the jury was prejudicially erroneous.
In the unpublished portion of this opinion, we conclude the court
properly admitted Birdsall’s statements to police, and we reject Birdsall’s
challenges to his sentence. In the published portion of the opinion, we
conclude the alleged instructional error was harmless. We therefore affirm.
I. BACKGROUND
On October 17, 2012, Birdsall and a friend, Cody Nicosia, murdered
Barbara Latiolais in her home and stole numerous items, including a car.
Birdsall, who had a distant family relationship with the victim and had done
work at her home, knew her partner Mike Rice would be out of town.
Birdsall thought Latiolais might also go out of town on a separate trip.
Birdsall proposed a plan to burgle the house, and Nicosia agreed to
participate.
Birdsall and Nicosia hid outside the house for several hours, first in the
yard and then under the front deck, but when Latiolais did not leave, they
decided to kill her and proceed with the planned burglary. Birdsall later told
police that he suggested they leave but Nicosia insisted they go through with
the crime because they had come that far and were “kind of trapped.”
Birdsall said, “okay.” Birdsall told the officers: “I should’ve just said, let’s go.
I let the greed get to me.”
2 Miranda v. Arizona (1966) 384 U.S. 436.
2
Birdsall went to the front door of the house and asked Latiolais if he
could do some work. She agreed and let him in. Nicosia entered at the back
of the house. Once inside, Birdsall and Nicosia attacked Latiolais and
strangled her using chokeholds. They believed she was dead, but she began
making sounds, so Nicosia attempted unsuccessfully to break her neck.
Nicosia then got a rope from the garage, wrapped it twice around Latiolais’s
neck, and he and Birdsall pulled on the two ends of the rope until she stopped
making sounds. They then broke into a closet and a safe using an ax from
the garage, took several guns as well as jewelry, marijuana, and coins, loaded
the items into Rice’s Volvo, and drove away.
Several hours later, after having dinner with friends and showing them
the guns, Birdsall and Nicosia decided to return to the house to cover up
evidence. They went back to the house and, using containers of gasoline they
found there, set the house on fire. Firefighters responding to the blaze in the
early morning hours of October 18, 2012, found Latiolais’s body inside the
house.
On October 25, 2012, police arrested and interrogated Birdsall, who
made inculpatory statements about his planning of and participation in the
crimes. Video recordings of the interrogation were admitted into evidence
and played for the jury at Birdsall’s trial.
Birdsall was charged in adult criminal court with murder (count one)
and arson (count two), as well as special circumstance allegations in
connection with count one.3 At his trial in 2015, he presented a mental state
defense. Dr. Ricardo Winkel, a psychologist, testified that Birdsall, who was
3 Nicosia was charged with the same offenses and allegations and was
tried separately. In his appellate brief, Birdsall states Nicosia was convicted
and sentenced to LWOP.
3
a special education student since the second grade, had attention deficit
hyperactivity disorder (ADHD), an auditory processing deficit that makes it
difficult to process or understand things he hears, and deficits in working
memory. Also, due to trauma from childhood neglect and abuse, including
sexual abuse by a neighbor, he suffered from severe posttraumatic stress
disorder. He was severely depressed.
Dr. Winkel testified that a prominent feature of Birdsall’s psychology
was a tendency to dissociate under stress, i.e., “to disconnect from the
situation or from . . . feelings [or] thoughts he himself may have.” Dr. Winkel
opined Birdsall’s behavior at the time of and after the crimes was consistent
with his being in a dissociated state and in denial. In particular, it was
highly probable the stressful situation created when Nicosia insisted they
had to go through with the crimes caused Birdsall to dissociate. Frequently,
a person who dissociates during a stressful event can later remember what
happened. Defense counsel argued to the jury that Birdsall was in a
dissociated state at the time of the crime and did not form the required
mental states for conviction.
The jury found Birdsall guilty of first degree murder and arson, and
found true the alleged special circumstances that the murder was
perpetrated by means of lying in wait and during a robbery and a burglary.
At sentencing in September 2015, the trial court (Hon. Jon R. Rolefson)
sentenced Birdsall to LWOP for the murder conviction, plus a consecutive
five-year term for arson.
Birdsall appealed, raising several challenges to his conviction and
sentence. (People v. Birdsall, supra, A146666.) In November 2018, we
conditionally reversed the judgment based on the retroactive application of
Proposition 57, which requires that a transfer hearing be held in juvenile
4
court prior to the initiation of adult criminal court proceedings against a
minor. (People v. Birdsall, supra, A146666.) We remanded the case to the
juvenile court to hold a transfer hearing and determine whether Birdsall’s
case should proceed in juvenile or adult court. (Ibid.) We directed that, if the
court found Birdsall unsuitable for juvenile court adjudication, it should
reinstate the judgment, subject to the right of the parties to appeal the
reinstated judgment. (Ibid.) We did not reach Birdsall’s other appellate
arguments. (Ibid.)
In January 2020, after conducting a transfer hearing in December
2019, the juvenile court (Hon. Rhonda Burgess) found Birdsall was not
suitable for juvenile court adjudication. Pursuant to this court’s directive in
remanding the case, the juvenile court reinstated the original judgment,
subject to the right of the parties to appeal. Birdsall then initiated the
present appeal (A159555) challenging his reinstated conviction and
sentence.4
II. DISCUSSION
A. The Motion To Suppress
1. Background
Before trial, Birdsall moved to suppress the statements he made to
police, and the court (Judge Rolefson) held an evidentiary hearing on the
motion, where there was evidence of the following chain of events.5 On
October 22, 2012, Birdsall told a teacher at his high school that he was going
4Birdsall also filed a writ petition (No. A160201) challenging the
juvenile court’s ruling at the transfer hearing. This court denied that petition
in September 2020.
5 At the suppression hearing, in addition to receiving testimony, the
court admitted as an exhibit the video recording of the October 25, 2012
interview of Birdsall at the Sheriff’s Department substation.
5
through a hard time and that his aunt had died and her house had burned
down. Birdsall said he had been “5150’d” the summer before, indicating a
psychiatric issue, and that he was beginning to feel that way again. The
teacher notified the principal of the conversation.
Former Sergeant David Dickson of the Alameda County Sheriff’s
Department testified that he received information that Birdsall was having
psychological issues. On October 23, 2012, he conducted a 7- to 10-minute
interview of Birdsall pursuant to Welfare and Institutions Code section 5150
in the school principal’s office, with the principal and the school’s resource
officer, Alameda County Sheriff’s Deputy Timothy Vales. Birdsall seemed a
normal 16 year old, had a pleasant demeanor, and laughed a lot. At the end
of the interview, Sergeant Dickson concluded Birdsall was not going to hurt
himself or others. No questions were asked about the murder.6
On October 25, 2012, Deputy Vales arrested Birdsall at the school and
drove him to the Sheriff’s Department substation. The two engaged in small
talk on the five-minute drive. Deputy Vales testified he did not question
Birdsall about the murder. Deputy Vales also testified that Birdsall did not
ask to phone his mother and did not ask for an attorney.
At the station, Birdsall was taken directly to an interview room.
Sergeant Dickson testified this was done because the detectives knew they
were going to interview Birdsall, and so that a video recording device could
6 At the conclusion of the suppression hearing, the trial court ruled the
meeting at the school on October 23 was not a custodial interrogation
triggering the need for Miranda warnings. Birdsall does not challenge this
ruling.
6
record Birdsall the whole time he was there. Birdsall was placed in the
interview room at about 9:58 a.m.7
Sergeant Dickson and Detective Gus Mora entered the room about 20
minutes later and began speaking with Birdsall at around 10:19 a.m. As
discussed further below, the detectives spent about five minutes asking about
Birdsall’s personal information such as his height and weight and engaging
in small talk.
When Dickson asked Birdsall whether he knew “what this is about,”
Birdsall said he knew it was about “the murder,” and that his mother had
told him he might be questioned. Mora then said that, before they could
discuss that, he needed to read Birdsall his rights. Mora read the Miranda
warnings from a form and asked Birdsall if he understood them. After each
warning, Birdsall replied, “Yes.”8 The warnings were given at about
10:23 a.m.
The detectives (primarily Mora) then began questioning Birdsall about
the crime, and he initially did not admit to being involved. Mora stated the
detectives had been investigating and had been speaking with Nicosia, who
7The time stamp in the video recording of the interview is 21 minutes
behind the actual time. Times mentioned in this opinion are the actual
times.
8 The transcript of this portion of the recorded interview states:
“[Mora]: [Y]ou have the r-right to remain silent. Do you understand that?
[¶] [Birdsall]: Mm-hm. [¶] [Dickson]: Is that a yes? [¶] [Birdsall]: Yes.
[¶] [Dickson]: Okay. [¶] [Mora]: Anything you say can and will be used
against you in a court, uh, in a court of law. Do you understand that?
[¶] [Birdsall]: Yes. [¶] [Mora]: You have the right to talk to a lawyer and
have him present while you’re being questioned. Do you understand that?
[¶] [Birdsall]: Yes. [¶] [Mora]: If you cannot afford to hire a lawyer one will
be appointed to represent you free of charge before any questioning if you
wish one. [¶] [Birdsall]: Yes. [¶] [Mora]: Do you understand that? Okay, so
I read your rights.”
7
was in another interview room. At about 10:31 a.m. (about eight minutes
after the Miranda warnings were given), Dickson said, “I hate to butt in?
[¶] . . . [¶] What my detective’s trying to tell you, we got this shit figured out.
So you might want to tell him the truth.”
After some brief further discussion, including Mora’s statement that
“we all make mistakes,” Birdsall asked if he could “see what Cody [Nicosia]
said first.” Dickson said, “Cody’s tellin’ the truth. [¶] . . . [¶] And that’s what
we need you to do, Chris, tell the truth.” Mora added that some of Birdsall’s
other friends were telling the truth “[a]nd it’s best for you to tell the truth,
right? Uh, your family’s concerned. They, uh, they want you to tell the
truth.” Dickson stated, “And we know it’s bothering you. We know it was
bothering you the other day when you were talking to your teachers and
telling them you were having nightmares and seeing your aunt’s face. Just
go ahead and tell us what happened, Chris.”
Birdsall then admitted his involvement in the burglary and the
murder, as detailed in part I. above. He began to do so at around 10:33 a.m.,
about 10 minutes after the Miranda warnings were given. Over the next
several hours, the detectives questioned him in detail about the crimes, with
a number of breaks. Birdsall was at the substation for eight or nine hours
and was questioned for about four hours.
At some point in the morning, Deputy Vales telephoned Birdsall’s
mother, Mindy Birdsall, and told her Birdsall was in custody and was safe.
Mindy Birdsall testified that she went to the station, where she told officers
she wanted to see Birdsall, but they would not let her see him. After
speaking with an attorney, Mindy Birdsall told Sergeant Dickson she wanted
him to stop questioning Birdsall, but he declined to do so.
8
The officers testified that, during his arrest and interrogation on
October 25, 2012, Birdsall did not ask to speak with his mother or an
attorney, and no such request is depicted on the video recording of the
interview room. At the suppression hearing, Birdsall testified he did ask to
speak with his mother while in the car with Vales on the drive to the station,
and on multiple occasions when he was at the station but outside the
interview room while being taken to or from the bathroom.
Dr. Winkel (who later testified at trial; see pt. I., ante), testified at the
suppression hearing and opined that Birdsall, because of his auditory
processing disorder, ADHD, and cognitive memory deficit, would have had
difficulty understanding the Miranda warnings. Birdsall himself testified he
did not understand the warnings, but he also testified he did not recall the
Miranda admonition at all.
The trial court denied Birdsall’s motion to suppress, concluding
Birdsall was properly advised of his Miranda rights and that he knowingly,
intelligently and voluntarily waived his rights and spoke with the officers.
As to voluntariness, the court found the officers did nothing improper to
overcome Birdsall’s free will. The court also concluded Birdsall understood
his rights and knowingly and intelligently waived them. Based on its
viewing of the video recording, the court concluded Birdsall had no difficulty
interacting with the officers. He gave appropriate answers, was consistently
responsive and engaging, and corrected one of the officers at one point,
showing he was listening and thinking about what they said. The court
stated that everything it observed on the video recording indicated Birdsall
understood what was being said to him during the admonitions, and he
acknowledged he understood each one.
9
The court discounted Birdsall’s testimony that he did not understand
the warnings, in light of his other testimony that he did not recall the
admonition at all. The court also discounted the credibility of Birdsall’s
testimony that he repeatedly asked to call his mother during the times he
was not being video recorded, since there was no reference to such requests
on the video recording. The court found Dr. Winkel to be an impressive
witness but stated he lost some credibility when he opined that Birdsall was
not capable of understanding the Miranda warnings. The court concluded
that, based on the totality of the circumstances, there was no basis for
suppressing Birdsall’s statements.
2. Analysis
Birdsall contends the court erred by admitting into evidence the
statements he made to police at the station on October 25, 2012.9 He argues
(1) the statements were obtained in violation of Miranda, in part because he
did not knowingly and voluntarily waive his Miranda rights, and (2) the
statements themselves were involuntary.
“ ‘[C]ourts apply a “totality of circumstances” test to determine the
voluntariness of a confession. [Citations.] Among the factors to be
considered are “ ‘the crucial element of police coercion [citation]; the length of
the interrogation [citation]; its location [citation]; its continuity’ as well as
‘the defendant’s maturity [citation]; education [citation]; physical condition
[citation]; and mental health.’ ” . . . In determining whether a confession was
voluntary, “[t]he question is whether defendant’s choice to confess was not
‘essentially free’ because his will was overborne.” ’ ” (People v. Boyette (2002)
29 Cal.4th 381, 411 (Boyette).) As to a waiver of Miranda rights, we similarly
9 It is undisputed that, during the October 25 interrogation at the
station, Birdsall was in custody for purposes of Miranda.
10
inquire “ ‘into the totality of the circumstances surrounding the interrogation,
to ascertain whether the accused in fact knowingly and voluntarily decided to
forgo his rights to remain silent and to have the assistance of counsel.’
Because defendant is a minor, the required inquiry ‘includes evaluation of the
juvenile’s age, experience, education, background, and intelligence, and into
whether he has the capacity to understand the warnings given him, the
nature of his Fifth Amendment rights, and the consequences of waiving those
rights.’ ” (People v. Lessie (2010) 47 Cal.4th 1152, 1169 (Lessie).)
On appeal, we accept the trial court’s factual findings if supported by
substantial evidence, but we independently determine whether the
challenged statements were voluntary or were obtained in violation of
Miranda. (Boyette, supra, 29 Cal.4th at p. 411; Lessie, supra, 47 Cal.4th at
p. 1169.) The prosecution bears the burden of proving, by a preponderance of
the evidence, the voluntariness of a confession (Boyette, supra, at p. 411) and
the validity of a challenged Miranda waiver (Lessie, supra, at p. 1169).
After considering the totality of the circumstances, we conclude
Birdsall’s statements were voluntary and were not obtained in violation of
Miranda. As to Miranda, Detective Mora gave Birdsall the four required
warnings—Mora told Birdsall that he had the right to remain silent, that
anything he said could be used against him in court, that he had the right to
have an attorney present during questioning, and that if he could not afford
an attorney one would be appointed for him by the court before questioning if
he so desired. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085–1086 [listing
the warnings required by Miranda] (McCurdy).) Birdsall said he understood
his rights and then spoke with the officers.
While Birdsall did not expressly waive his rights before speaking, we
conclude the record establishes a valid implied waiver. “Where the
11
prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced statement establishes an
implied waiver of the right to remain silent.” (Berghuis v. Thompkins (2010)
560 U.S. 370, 384 (Berghuis); accord, People v. Krebs (2019) 8 Cal.5th 265,
302 (Krebs).) The waiver must be both knowing and voluntary, and “[t]he
waiver inquiry” thus “ ‘has two distinct dimensions’: waiver must be
‘voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception,’ and ‘made with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.’ ” (Berghuis, at pp. 382–383.) We
conclude these conditions were met here—Birdsall understood the Miranda
warnings and the rights he was waiving, and both his waiver and his
statement were voluntary.
a. Birdsall’s Prewarning Statements
Before turning to the parties’ principal arguments on these points, we
address Birdsall’s contention that the officers violated Miranda by starting to
question him before giving the Miranda warnings. Before giving the
warnings, Detective Mora and Sergeant Dickson spent about five minutes
asking Birdsall preliminary questions, mostly about his “personal info” (his
name, date of birth, height, weight, where he lived, what school he attended,
and where he worked) as well as some “chitchat.” Sergeant Dickson testified
at the suppression hearing that the purpose of this questioning was to assess
Birdsall’s state of mind. Sergeant Dickson stated that, based on these
interactions, he did not have any reason to believe Birdsall was having
difficulty understanding the officers’ questions or words. Birdsall showed no
signs of being under the influence of alcohol or drugs; he did not advise the
officers of any mental or physical impairments; and he showed no signs of
pain or discomfort.
12
After these questions, Detective Mora stated there was an ongoing
investigation and mentioned that Sergeant Dickson had met with Birdsall at
his school two days earlier. Sergeant Dickson then asked Birdsall if he had
expected to see Dickson again; Birdsall replied, “No, I didn’t”; and Dickson
asked if Birdsall had “any idea what this is about.” Birdsall replied, “Oh, I
know it’s about the murder.” After Dickson said “Okay,” Birdsall added,
“ ’Cause my mom’s like, ‘Yeah, they might investigate you.’ I was like, ‘Oh,
okay.’ ” Detective Mora then said that was what the officers wanted to talk to
Birdsall about, but that he needed to read Birdsall his rights “before we can
talk.” Mora then advised Birdsall of his Miranda rights as outlined above.10
The video recording of the interrogation that was played for the jury included
the preliminary questioning that occurred before the Miranda warnings were
given.
Birdsall argues the officers violated Miranda by conducting this
questioning before giving the warnings, and he suggests it was error to admit
this portion of the interrogation into evidence. In this regard, the parties
dispute whether the “booking exception” to Miranda applies here, with the
Attorney General noting some routine biographical questions are permitted,
and with Birdsall arguing he was not actually being booked into jail when
these questions were posed, having been taken straight to an interview room.
(See People v. Elizalde (2015) 61 Cal.4th 523, 527, 531–532 [“[F]or a limited
category of booking questions involving biographical data, no Miranda
warnings are required and admission of the defendant’s answers at trial does
10In his appellate briefs, Birdsall incorrectly states the officers left the
interview room after these initial questions and then returned before giving
the Miranda warnings. This court has reviewed this portion of the video
recording of the interrogation; the officers did not leave the room at this
point.
13
not violate the Fifth Amendment. For questions outside this limited
category, however, answers given, without an admonition, to questions an
officer should know are reasonably likely to elicit an incriminating response
may not be admitted in the prosecution’s case-in-chief . ”].)
We need not determine whether the officers should have given the
Miranda warnings earlier than they did, or whether the court should have
suppressed Birdsall’s prewarning statements on Miranda grounds. In light
of the detailed confession Birdsall made after receiving Miranda warnings
(which we conclude was properly admitted), the admission of his prewarning
statements (in which he did not confess) could not have prejudiced him. Nor
did the brief prewarning questioning require suppression of Birdsall’s
postwarning statements. (McCurdy, supra, 59 Cal.4th at p. 1088 [“[T]he
officers’ introductory questions were likely designed to establish a rapport
with defendant, but even if they were successful, this does not establish that
defendant’s free will was overborne.”].)
Birdsall, citing People v. Honeycutt (1977) 20 Cal.3d 150, argues the
prewarning questioning was “a means of softening up Birdsall before
Miranda warnings were given” and that this “tactic” supports a finding that
his later implied waiver of rights and/or his postwarning statements were
involuntary. We disagree. In Honeycutt, after the defendant was arrested for
murder and brought to a police station interview room, he and a detective
who had known him for several years had “a half-hour unrecorded
discussion” in which they discussed “unrelated past events and former
acquaintances and, finally, the victim,” whom the officer disparaged. (Id. at
p. 158.) At the end of the half hour, the defendant stated he would talk about
the homicide. (Ibid.) The police then gave Miranda warnings, and the
defendant confessed. (Id. at pp. 158–159.)
14
In these circumstances, the Supreme Court found error in admitting
the confession, stating that “[w]hen the waiver results from a clever
softening-up of a defendant through disparagement of the victim and
ingratiating conversation, the subsequent decision to waive without a
Miranda warning must be deemed to be involuntary . . . .” (People v.
Honeycutt, supra, 20 Cal.3d at p. 160.) Honeycutt is inapposite. Here, the
officers did not disparage the victim, engage in conversation that could fairly
be characterized as “ingratiating,” or fail to give Birdsall Miranda warnings
before he confessed. (Krebs, supra, 8 Cal.5th at p. 306 [holding Honeycutt did
not apply where these circumstances were not present; stating Honeycutt
“has been limited to its facts”].)
b. Adequacy of the Miranda Advisements
Birdsall next contends the Miranda warnings given were deficient. We
disagree. Miranda “ ‘ “require[s] law enforcement agencies to advise a
suspect, before any custodial law enforcement questioning, [1] that ‘he has
the right to remain silent, [2] that anything he says can be used against him
in a court of law, [3] that he has the right to the presence of an attorney, and
[4] that if he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.’ ” ’ ” (McCurdy, supra, 59 Cal.4th at
pp. 1085–1086.) This rule applies when the suspect is a juvenile. (See Fare v.
Michael C. (1979) 442 U.S. 707, 717, 725.) Detective Mora, reading from a
form, gave Birdsall the four required warnings.
Birdsall argues, however, that the officers should have given additional
warnings or explanations to ensure he fully understood his rights, including
telling him (1) he could decide during questioning to invoke his rights and cut
off questioning, (2) he had “the right of counsel, either retained or appointed
[citation], as opposed to appointed counsel before questioning and counsel
during questioning,” and (3) to invoke his rights, he had to do so clearly and
15
unequivocally. While additional advisements given by police may bolster the
conclusion that the suspect understood his rights (see Berghuis, supra,560 U.S. at pp. 375, 386), Birdsall cites no authority requiring the additional
advisements he argues should have been given. We decline to hold the
standard warning given here was defective under Miranda.
c. Birdsall’s Waiver of Rights Was Knowing and Intelligent
Based on the totality of the circumstances, we agree with the trial court
that Birdsall understood his rights and knowingly and intelligently waived
them. We note initially that, when Detective Mora read the Miranda
warnings and asked Birdsall whether he understood his rights, Birdsall
stated he did. In addition, based on our review of the video recording of the
interrogation, we agree with the trial court that Birdsall “had no problem
whatsoever in interacting or engaging with the police officers, that up to and
through the Miranda admonition and beyond, when questions were asked of
him, he gave appropriate answers.” Birdsall corrected Mora at one point
during the preliminary questioning, and disagreed with the officers at other
points, showing that he was “obviously listening and thinking beyond just
accepting what the person was saying.” He did not appear to be “in a fog.”
Finally, over the course of the interrogation, Birdsall was able to explain his
actions in great detail, including his state of mind at the time of the crime.
Birdsall testified at the suppression hearing that he did not understand
the Miranda admonition that was given at his interrogation and that he did
not feel he had the right to say no and stop talking. But as the trial court
noted, Birdsall also testified he did not have any recollection of the Miranda
admonition. The trial court questioned how Birdsall, if he could not recall
the admonition, could remember that he did not understand it. The court
concluded this conflict “raises a serious question about [Birdsall’s] testimony
to the effect that he didn’t understand those rights.” The court’s decision to
16
discount Birdsall’s testimony on this point is supported by the record and is
entitled to deference.
Dr. Winkel testified that Birdsall’s psychological disorders and
disabilities compromised his ability to understand the Miranda admonition.
The trial court concluded that, while Dr. Winkel was an impressive witness
overall, he lost some credibility when he suggested Birdsall was not capable
of understanding the warnings. More broadly, the trial court concluded, and
we agree, that Birdsall’s demeanor and conduct on the video recording of the
interrogation support the conclusion that he understood the admonitions, as
he told the officers he did.
For the foregoing reasons, we conclude the prosecution proved by a
preponderance of the evidence that Birdsall understood his rights and the
consequences of waiving them, and that his waiver thus was knowing and
intelligent. (Berghuis, supra, 560 U.S. at pp. 382–383.)
d. Birdsall’s Waiver and Statement Were Voluntary
We further conclude Birdsall’s waiver and statement were voluntary.
As noted, we inquire whether his waiver “ ‘was the product of a free and
deliberate choice rather than intimidation, coercion, or deception’ ” (Berghuis,
supra, 560 U.S. at p. 382), and, as to the statement itself, we ask whether his
“ ‘ “choice to confess was not ‘essentially free’ because his will was
overborne” ’ ” (Boyette, supra, 29 Cal.4th at p. 411). “The waiver in this case
is inferred from [Birdsall’s] confession, and [Birdsall] maintains that both
were involuntarily given because he was coerced.” (Krebs, supra, 8 Cal.5th at
p. 303.)
Specifically, Birdsall contends the officers used a variety of coercive
“interrogation tactics” that rendered his confession and waiver involuntary.
Birdsall argues the officers “display[ed] an air of confidence in [Birdsall’s]
guilt” (a “maximization” technique), “minimize[d] [the] moral seriousness of
17
[the] offense” (including by saying everyone makes “mistakes”), “exploited
Birdsall’s poor emotional and psychological state by urging him to tell them
what happened to get it off his chest to ease his emotional torment,” “isolated
Birdsall from his mother and an attorney, thereby holding him
incommunicado for a very long time,” “conducted the interrogation in an
isolated and windowless police interrogation room” where “[t]he seating
arrangements . . . literally had Birdsall cornered,” failed to allow Birdsall to
make phone calls to his mother and an attorney as required for minor
suspects by Welfare and Institutions Code section 627 and Alameda County
Sheriff’s Department policies, falsely stated his family wanted him to tell the
truth, interrogated him for hours at a time and left him alone at times,
“which was designed to increase Birdsall’s anxiety and nervousness,” and in
sum “ ‘persuad[ed], trick[ed], or cajol[ed] him out of exercising his
constitutional rights.’ ” Relying in part on In re Elias V. (2015)
237 Cal.App.4th 568, Birdsall suggests his age and psychological and
learning deficits made him vulnerable to these interrogation techniques.
Based on our review of the record, we do not find that, individually or
collectively, the challenged techniques served to overbear Birdsall’s will or to
render his confession or his waiver of rights involuntary. We note initially
that Birdsall’s age, while relevant, is a less weighty concern here than in
Elias V., where our Division Two colleagues found a 13-year-old boy’s
custodial statements to be involuntary, in part because of his youth, which
rendered him susceptible to influence and pressure, as well as the likelihood
the questioning officer’s “use of deception and overbearing tactics would
induce involuntary and untrustworthy incriminating admissions.” (In re
Elias V., supra, 237 Cal.App.4th at pp. 586–587.) Birdsall was 16 years,
8 months old, in contrast to the 13-year-old “young adolescent” in Elias V.
18
(Id. at p. 591; see id. at p. 594.) And while we acknowledge the evidence of
Birdsall’s psychological conditions (including ADHD, a memory deficit, and
an auditory processing deficit), we agree with the trial court that, on the
video recording of the interrogation, Birdsall does not appear to be confused
or unable to converse with the officers or answer their questions. The officers
and Birdsall speak calmly. The officers make no threats or promises of
leniency. In our view, the events depicted on the video recording weigh
against a conclusion that Birdsall’s will was overborne.
Turning to the specific interrogation techniques identified by Birdsall,
we similarly do not find a basis for concluding his confession was involuntary.
Birdsall correctly notes the interrogation room at the station does not appear
to have windows, and he is seated in the corner. Although Birdsall had been
arrested and was in custody, the nature of the room, in our view, does not add
much to the stress that could accompany any custodial interrogation, and
does not provide a basis for concluding Birdsall’s statements were
involuntary.
Birdsall criticizes the overall length of the interrogation, but this was
not a situation where lengthy and dogged questioning (or prolonged isolation)
wore a suspect down. Within about 10 minutes after Mora read Birdsall his
rights, Birdsall began providing the officers with his account of the crimes.
Shortly after that, Birdsall described in detail how he personally participated
in the physical assault and strangulation of the victim.
As to some of the other interrogation techniques mentioned by Birdsall,
the officers did display an air of confidence (including by stating “we got this
shit figured out”), and they stated that “we all make mistakes,” said that
Birdsall’s family wanted him to tell the truth, and told Birdsall “we know it’s
bothering you.” The officers’ statements along these lines do not persuade us
19
Birdsall’s confession was involuntary. To the extent the officers exaggerated
the progress of their investigation and misled Birdsall about his family’s
wishes, their statements do not persuade us that there was anything in the
questioning that is tantamount to coercion. And contrary to Birdsall’s view,
we do not interpret the general statement that “we all make mistakes” as an
improper promise of leniency if he confessed. Similarly, the officers’
statement that Latiolais’s death was bothering Birdsall and their reference to
the fact he had said that to one of his teachers does not rise to the level of
improper or abusive emotional badgering that would render Birdsall’s
confession involuntary.
Finally, Birdsall notes the officers did not offer him the opportunity to
call his mother or an attorney, as required for juvenile suspects by Welfare
and Institutions Code section 627, subdivision (b) and a Sheriff ’s Department
policy; they did not allow Birdsall’s mother to speak with him; and they did
not tell Birdsall his mother was at the station and had contacted a lawyer.
Sergeant Dickson testified that the departmental policy at issue includes an
exception for extenuating circumstances, which he concluded existed here
because of the severity of the crime and the possibility there might be other
suspects and other guns that were not yet accounted for.
These facts do not convince us Birdsall’s confession was involuntary.
Even were we to assume the department policy or the statute Birdsall relies
upon was violated, a mere violation of departmental policy, or even of state
law, does not warrant exclusion of evidence absent a breach of federal
constitutional rights. (Lessie, supra, 47 Cal.4th at p. 1161, fn. 2.) Birdsall
himself never asked to speak with an attorney, and the trial court discounted
his testimony that he asked to speak with his mother (which would have
triggered a different departmental policy to stop the interrogation). The
20
efforts of Birdsall’s mother to speak with him and to contact an attorney on
his behalf (and Birdsall’s lack of awareness of those events) do not require
the suppression of his confession. (Moran v. Burbine (1986) 475 U.S. 412,
422–424 [police are not required to “supply a suspect with a flow of
information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights”]; see id. at pp. 433–434.) Considering these
events and the other facts described above as part of the totality of the
circumstances, we do not find Birdsall’s confession or waiver was
involuntary.11
B. Birdsall’s Sentence
Birdsall argues his LWOP sentence should be vacated and the case
remanded for resentencing because the sentence and the statute under which
it was imposed run afoul of constitutional protections, and because the trial
court failed to exercise informed discretion at sentencing and in certain
pretrial proceedings. We reject these arguments.
1. Eighth Amendment Claims
The court sentenced Birdsall pursuant to section 190.5, subdivision (b),
which provides that, for 16- and 17-year-old offenders convicted of special
circumstance murder, the court has discretion to impose a sentence of LWOP
or 25 years to life.12 The California Supreme Court held in People v.
11Because we conclude the court did not err by admitting Birdsall’s
confession, we do not address the parties’ arguments as to whether the
asserted error was prejudicial.
12 Section 190.5, subdivision (b) states: “The penalty for a defendant
found guilty of murder in the first degree, in any case in which one or more
special circumstances . . . has been found to be true . . . , who was 16 years of
age or older and under the age of 18 years at the time of the commission of
the crime, shall be confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to life.”
21
Gutierrez (2014) 58 Cal.4th 1354, 1387 (Gutierrez) that this statute “confers
discretion on the sentencing court” to choose either of these sentences, “with
no presumption in favor of life without parole.” Gutierrez further held that
section 190.5, subdivision (b) requires a sentencing court considering an
LWOP sentence for a juvenile offender to consider evidence relevant to the
youth-related factors identified in Miller v. Alabama (2012) 567 U.S. 460,
where the United States Supreme Court held mandatory LWOP sentences for
juvenile offenders violate the Eighth Amendment to the United States
Constitution. (Gutierrez, supra, 58 Cal.4th at pp. 1387–1390; Miller, supra,
at pp. 465, 477–479.)
Specifically, under Miller and Gutierrez, the trial court “must consider
evidence that may exist regarding (1) ‘a juvenile offender’s “chronological age
and its hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences” ’; (2) ‘ “the family and home
environment that surrounds [the juvenile]—and from which he cannot
usually extricate himself—no matter how brutal or dysfunctional” ’; (3) ‘ “the
circumstances of the homicide offense, including the extent of [the juvenile
defendant’s] participation in the conduct and the way familial and peer
pressures may have affected him” ’; (4) ‘whether the offender “might have
been charged and convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity to assist his
own attorneys” ’; and (5) ‘ “the possibility of rehabilitation.” ’ ” (In re Kirchner
(2017) 2 Cal.5th 1040, 1048.)
At Birdsall’s sentencing hearing in September 2015 (i.e., after the
decisions in Miller and Gutierrez), the trial court carefully explained its
analysis of each of the Miller factors before sentencing Birdsall to LWOP.
22
Birdsall contends, however, that in light of legal developments subsequent to
his sentencing hearing, both the governing sentencing statute—section 190.5,
subdivision (b)—and his LWOP sentence imposed under that statute violate
the Eighth Amendment. For reasons we shall explain, these arguments
provide no basis for reversal of Birdsall’s sentence.
In his opening brief, Birdsall relies principally on the United States
Supreme Court’s 2016 decision in Montgomery v. Louisiana (2016) 577 U.S.
190, where the court clarified that Miller announced a substantive rather
than a procedural rule, and therefore operates retroactively. (Montgomery,
supra, 577 U.S. at p. 212; see In re Kirchner, supra, 2 Cal.5th at p. 1048.)
“Montgomery explained that ‘Miller . . . did more than require a sentencer to
consider a juvenile offender’s youth before imposing life without parole; it
established that the penological justifications for life without parole collapse
in light of “the distinctive attributes of youth.” [Citation.] Even if a court
considers a child’s age before sentencing him or her to a lifetime in prison,
that sentence still violates the Eighth Amendment for a child whose crime
reflects “ ‘unfortunate yet transient immaturity.’ ” [Citation.] Because Miller
determined that sentencing a child to life without parole is excessive for all
but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ”
[citation], it rendered life without parole an unconstitutional penalty for “a
class of defendants because of their status”—that is, juvenile offenders whose
crimes reflect the transient immaturity of youth. [Citation.] As a result,
Miller announced a substantive rule of constitutional law.’ ” (In re Kirchner,
supra, 2 Cal.5th at p. 1048, quoting Montgomery, supra, at p. 208.)
Birdsall argues section 190.5, subdivision (b) facially violates the
Eighth Amendment because, as construed in Gutierrez, it allows imposition of
an LWOP sentence on a juvenile defendant based on an exercise of discretion
23
after consideration of only the “ ‘procedural factors’ ” identified in Miller, and
without a decision or finding as to whether Montgomery’s substantive
requirement has been met, i.e., that the juvenile’s crime reflects irreparable
corruption rather than the transient immaturity of youth. Birdsall also
contends his LWOP sentence, imposed under section 190.5, subdivision (b),
violates the Eighth Amendment as construed in Montgomery because the
trial court, although it applied the Miller factors in exercising its discretion
under the statute, did not expressly or impliedly find that Birdsall’s crime
reflected irreparable corruption, and because the record of the 2015
sentencing hearing shows Birdsall is not irreparably corrupt.
In his reply brief, Birdsall acknowledges that the recent United States
Supreme Court decision in Jones v. Mississippi (2021) ___ U.S. ___ [141 S.Ct.
1307], which was decided after the filing of Birdsall’s opening brief and the
Attorney General’s brief, “impacts” his Eighth Amendment arguments. In
Jones, the high court held that, under Miller and Montgomery, the Eighth
Amendment, although it prohibits mandatory LWOP sentences for juveniles,
does not require a sentencer imposing an LWOP sentence on a juvenile
offender to make a separate factual finding that the defendant is
permanently incorrigible, or to provide an on-the-record sentencing
explanation with an implicit finding that the defendant is permanently
incorrigible. (Jones, supra, 141 S.Ct. at pp. 1311, 1313, 1318–1319, 1321.)
Instead, “[i]n a case involving an individual who was under 18 when he or
she committed a homicide, a State’s discretionary sentencing system is both
constitutionally necessary and constitutionally sufficient.” (Id. at p. 1313.)
Jones resolves Birdsall’s Eighth Amendment challenges to
section 190.5, subdivision (b) (which makes LWOP sentences discretionary
for juveniles) and to his sentence (which was imposed after an exercise of
24
discretion under the statute). Birdsall, however, argues in his reply brief
that this court should hold the discretion found sufficient for Eighth
Amendment purposes in Jones is not sufficient under the cruel or unusual
punishment clause of the California Constitution (Cal. Const., art. I, § 17) (a
provision he did not rely on in his opening brief ), and that a finding or
showing of “ ‘irreparable corruption’ ” is required under that provision.
We need not address this argument, because, as the Attorney General
points out, any claim based on the Miller-Montgomery limitation on LWOP
sentences (whether as construed in Jones or under the broader formulation
urged by Birdsall) is moot. Under California statutory law, Birdsall, despite
his LWOP sentence, will have an opportunity to be considered for parole.
Section 3051, subdivision (b)(4) (a provision that took effect January 1, 2018)
currently provides: “A person who was convicted of a controlling offense that
was committed before the person had attained 18 years of age and for which
the sentence is life without the possibility of parole shall be eligible for release
on parole at a youth offender parole hearing during the person’s 25th year of
incarceration.” (Italics added.) At the youth offender parole hearing, the
Board of Parole Hearings must “give great weight to the diminished
culpability of youth as compared to adults, the hallmark features of youth,
and any subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c); see § 3046, subd. (c).)
In People v. Franklin (2016) 63 Cal.4th 261, 268, 278–280 (Franklin),
the California Supreme Court held the availability of a youth offender parole
hearing under section 3051 mooted the defendant’s claim that his mandatory
prison sentence of 50 years to life for a murder he committed at age 16 was
unconstitutional under Miller. The Franklin court explained: “Sections 3051
and 3046 have thus superseded the statutorily mandated sentences of
25
inmates who, like Franklin, committed their controlling offense before the
age of 18. The statutory text makes clear that the Legislature intended
youth offender parole hearings to apply retrospectively, that is, to all eligible
youth offenders regardless of the date of conviction.” (Franklin, supra, at
p. 278.) The court continued: “In sum, the combined operation of
section 3051, section 3046, subdivision (c), and section 4801 means that
Franklin is now serving a life sentence that includes a meaningful
opportunity for release during his 25th year of incarceration. Such a
sentence is neither LWOP nor its functional equivalent. Because Franklin is
not serving an LWOP sentence or its functional equivalent, no Miller claim
arises here. The Legislature’s enactment of Senate Bill No. 260 [which took
effect January 1, 2014, and added §§ 3051, 3046, subd. (c), and 4801, subd. (c)
to the Penal Code] has rendered moot Franklin’s challenge to his original
sentence under Miller.” (Id. at pp. 279–280, 276.)
When Franklin was decided in 2016, section 3051 excluded persons
sentenced to LWOP from eligibility for a youth offender parole hearing, and
as noted, the defendant there was challenging a mandatory prison sentence
of 50 years to life. (Franklin, supra, 63 Cal.4th at pp. 277–278, citing § 3051,
former subd. (h); id. at p. 268.) The Franklin court noted the context in
which it was ruling, stating: “Our mootness holding is limited to
circumstances where, as here, section 3051 entitles an inmate to a youth
offender parole hearing against the backdrop of an otherwise lengthy
mandatory sentence. We express no view on Miller claims by juvenile
offenders who are ineligible for such a hearing under section 3051,
subdivision (h), or who are serving lengthy sentences imposed under
discretionary rather than mandatory sentencing statutes.” (Franklin, at
p. 280.)
26
The Legislature subsequently (in Senate Bill No. 394 (2017–2018 Reg.
Sess.), which took effect January 1, 2018) “extend[ed] the availability of a
mandatory parole hearing to juveniles sentenced to life without parole.”
(People v. Ochoa (2020) 53 Cal.App.5th 841, 850.) In light of this
amendment, which added subdivision (b)(4) to section 3051, the Court of
Appeal held in Ochoa that the mootness principle announced in Franklin
applies to juveniles sentenced to LWOP under section 190.5, subdivision (b).
The Ochoa court explained: “By affording those individuals a meaningful
opportunity for release, the Legislature has effectively mooted any claim that
imposition of life without parole on a juvenile offender violates the Eighth
Amendment. (See Franklin, supra, 63 Cal.4th at pp. 279–280 [finding Miller
issues moot with regard to defendants subject to § 3051, subd. (b)]; In re
Kirchner (2017) 2 Cal.5th 1040, 1054 [statute that provides juvenile offenders
sentenced to life terms with parole hearings no later than their 25th year of
incarceration is an example of adequate response to Miller]; [citation].)”
(Ochoa, supra, at p. 850.)
We agree with Ochoa that the Franklin mootness principle applies
here, and we hold that Birdsall’s challenges on Eighth Amendment grounds
to section 190.5, subdivision (b) and to the LWOP sentence imposed on him
under that statute (and the analogous challenges he seeks to assert on reply
under the California Constitution) are moot. By enacting section 3051,
subdivision (b)(4), the Legislature has afforded to Birdsall and other juveniles
sentenced to LWOP a meaningful opportunity for release. (People v. Ochoa,
supra, 53 Cal.App.5th at p. 850; see Montgomery v. Louisiana, supra,
577 U.S. at p. 212 [“A State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by
resentencing them.”].)
27
Birdsall resists this conclusion, suggesting that the Attorney General,
by invoking the Franklin mootness rule, is arguing for a result not intended
by the Legislature, such as (1) that there now exists “an oxymoronic fictional
sentence of LWOP with parole,” (2) that Birdsall’s sentence “must be
modified to ‘life with the possibility of parole,’ ” or (3) that there has been a
“statutory repeal,” i.e., section 3051, subdivision (b)(4) has repealed the
LWOP punishment authorized by section 190.5, subdivision (b). We need not
delve into these points—we do not undertake to relabel Birdsall’s sentence,
and we do not hold there has been a statutory repeal or similar action by the
Legislature. We hold only that, because a youth offender parole hearing will
be available to Birdsall during his 25th year of incarceration (when he will be
41 years old), the sentence imposed on him, although denominated LWOP,
does not give rise to any viable appellate challenge under the Eighth
Amendment (or its California analogue).13
2. The Alleged Need for a New Exercise of Discretion Under
Section 190.5
Birdsall argues that, even if section 190.5, subdivision (b) does not
violate the Eighth Amendment, this court should remand for resentencing
under that statute, i.e., for the trial court to again exercise discretion whether
13Birdsall also contends “[t]he Franklin moot doctrine is inapplicable”
because he has presented other grounds for vacating his sentence that are
independent of the Miller/Eighth Amendment issue. We address those other
arguments in parts II.B.2.–6., post, but they do not alter our conclusion that
the Eighth Amendment claims are moot.
Finally, Birdsall argues that, if this court finds his Eighth Amendment
claims are moot, we should remand for “a Franklin proceeding” to preserve
evidence that will be relevant at a future youth offender parole hearing under
section 3051 or other possible future statutory resentencing proceedings.
(See Franklin, supra, 63 Cal.4th at p. 284.) We address that argument in
part II.B.7., post.
28
to sentence Birdsall to LWOP or to a term of 25 years to life. Birdsall
contends resentencing is necessary so the trial court can consider legal and
factual developments that have occurred since his 2015 sentencing, including
(1) the United States Supreme Court’s 2016 decision in Montgomery
clarifying the scope of Miller, (2) the California Legislature’s October 2017
enactment of Senate Bill No. 394 (2017–2018 Reg. Sess.), amending
section 3051 to extend the availability of youth offender parole hearings to
juveniles convicted of murder and sentenced to LWOP, and (3) the
evidentiary record developed at Birdsall’s juvenile court transfer hearing in
December 2019.
As the Attorney General notes, none of these arguments establishes the
trial court committed error at the original sentencing hearing. We therefore
find no basis to vacate the sentence or to order resentencing. As for the
Miller-Montgomery issue, it is undisputed the trial court considered the
Miller factors in exercising its discretion under section 190.5, subdivision (b)
as required by the California Supreme Court’s decision in Gutierrez.
(Gutierrez, supra, 58 Cal.4th at pp. 1387–1390.) This also satisfied federal
law. (Jones v. Mississippi, supra, 141 S.Ct. at p. 1313.) We decline to hold
that more was required.
The amendment of section 3051 to make youth offender parole hearings
available to juveniles sentenced to LWOP also does not support Birdsall’s
claim that resentencing should be ordered. To the contrary, as discussed, the
Legislature in section 3051 has selected the youth offender parole hearing
(rather than a resentencing in each case) as the remedy where a sentence
might otherwise be vulnerable to attack as constitutionally disproportionate.
(See Franklin, supra, 63 Cal.4th at pp. 279–280, 286–287.)
29
Finally, while it is possible that additional evidence developed at
Birdsall’s transfer hearing might be relevant to a new sentencing decision,
that does not show the trial court erred in exercising its discretion based on
the evidence that was before it when it ruled.
3. The Trial Court’s Alleged Failure To Exercise Discretion
Under Section 1385 To Strike the Special Circumstance
Allegations
Birdsall contends the trial court had discretion under section 1385 to
strike the special circumstance allegations before trial but did not realize it
had discretion to do so. Birdsall argues that therefore this court should
reverse the special circumstance findings made by the jury and remand for
the trial court to exercise discretion as to whether to strike the special
circumstance allegations.
Section 1385 generally authorizes a judge to order an action dismissed
in furtherance of justice.14 (§ 1385, subd. (a).) But section 1385.1 provides:
“Notwithstanding Section 1385 or any other provision of law, a judge shall
not strike or dismiss any special circumstance which is admitted by a plea of
guilty or nolo contendere or is found by a jury or court as provided in
Sections 190.1 to 190.5, inclusive.” In light of section 1385.1, the court had
no authority to strike the special circumstances found by the jury. (People v.
Mendoza (2011) 52 Cal.4th 1056, 1075.)
14 Section 1385, subdivision (a) provides: “The judge or magistrate
may, either on motion of the court or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be dismissed. The
reasons for the dismissal shall be stated orally on the record. The court shall
also set forth the reasons in an order entered upon the minutes if requested
by either party or in any case in which the proceedings are not being recorded
electronically or reported by a court reporter. A dismissal shall not be made
for any cause that would be ground of demurrer to the accusatory pleading.”
30
Birdsall argues, however, that section 1385 would have permitted, and
section 1385.1 would not have precluded, the striking of the special
circumstance allegations before trial, i.e., before the jury found them to be
true. The Attorney General does not respond to this point, and neither party
has cited a case addressing it, but we need not resolve the issue. Even
assuming Birdsall is correct that a trial court has authority to strike a special
circumstance allegation before trial, there is no basis for reversal here.
First, as the Attorney General notes, Birdsall never asked the court to
strike the special circumstance allegations under section 1385. Prior to trial,
Birdsall moved to strike the felony-murder special circumstances (i.e., two of
the three alleged special circumstances) based on a constitutional argument
derived in part from Miller. The court denied the motion, noting that
California’s discretionary sentencing scheme for juveniles convicted of special
circumstance murder (§ 190.5, subd. (b)) complies with Miller and allows the
trial court, after trial, to impose a sentence other than LWOP even if special
circumstance allegations are found true. During this colloquy (which is the
only part of the record cited by Birdsall in support of his assertion that the
court did not understand the scope of its discretion under section 1385),
neither the court nor counsel mentioned section 1385 as a possible basis for
striking the special circumstance allegations.
Because Birdsall did not ask the court to strike the special
circumstance allegations under section 1385, he has forfeited any appellate
claim that the court erred by failing to do so. (People v. Carmony (2004)
33 Cal.4th 367, 375–376.) In his reply brief, Birdsall suggests he did not
need to raise the issue in the trial court because no appellate court had held
that section 1385 discretion exists in this circumstance. We reject this
argument. The principal authorities on which Birdsall bases his current
31
appellate contention (sections 1385 and 1385.1, Mendoza, and earlier cases
addressing the scope of section 1385 discretion, such as People v. Williams
(1981) 30 Cal.3d 470) existed at the time of Birdsall’s trial. Moreover,
adoption of Birdsall’s view would nullify section 1385.1—under his approach,
although a trial court may not strike a jury’s special circumstance finding, an
appellate court may reverse that finding because the trial court did not
consider striking the special circumstance allegations prior to trial, even
though it was never asked to do so.
Birdsall also suggests in his reply brief that, if there was a forfeiture,
his trial counsel provided ineffective assistance. We are not persuaded by
this undeveloped argument. As to the first requirement for establishing an
ineffective assistance claim—the deficient performance of counsel—we do not
believe trial counsel’s failure to develop the argument about the scope of
pretrial section 1385 discretion that Birdsall has crafted on appeal (an issue
on which he states the law was “unclear or uncertain”) constitutes deficient
performance. (People v. Carter (2003) 30 Cal.4th 1166, 1211 [to establish
ineffective assistance, defendant must show “counsel’s representation fell
below an objective standard of reasonableness under prevailing professional
norms”].)
Birdsall also has not shown prejudice, i.e., “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
694.) As noted above, and as the Attorney General points out, when the trial
court was presented with a pretrial request to strike some of the special
circumstance allegations on constitutional grounds, the court declined to do
so, emphasizing it would have discretion after trial to decide on an
appropriate sentence for Birdsall and would not be bound to impose an
32
LWOP sentence. We do not think it reasonably probable that the court would
have ruled differently if Birdsall’s counsel had instead asked the court to
strike the special circumstance allegations on statutory grounds under
section 1385.
4. The Trial Court’s Alleged Failure To Exercise Discretion
Under Section 1385 To Strike the “First Degree Murder
Allegations”
Birdsall contends the trial court had authority under section 1385 to
strike the “first degree murder allegations,” but did not realize it had that
authority. He states that, if the court had exercised this power, he would
have faced only the punishment applicable to second degree murder, i.e., a
sentence of 15 years to life. (§ 190, subd. (a).) Birdsall argues this court
should reverse his first degree murder conviction and remand the case to give
the trial court an opportunity to strike the first degree murder allegations.
Again, as the Attorney General points out, Birdsall did not ask the trial
court to employ section 1385 in this manner, and he does not point to any
statement by the trial court showing it misunderstood the scope of its
discretion under that statute. He has forfeited his appellate claim. (People v.
Carmony, supra, 33 Cal.4th at pp. 375–376.)
In any event, California Supreme Court authority forecloses this claim.
In In re Varnell (2003) 30 Cal.4th 1132, 1134–1135 & fn. 3 (Varnell), the
court held that, while section 1385 authorizes trial courts to dismiss
“ ‘charges or allegations in an indictment or information,’ ” it does not confer
discretion to “disregard ‘sentencing factors’ ” (i.e., aggravating or mitigating
circumstances supporting a specific sentence within a range) “that are not
themselves required to be a charge or allegation in an indictment or
information.” In reaching this conclusion, the court summarized prior case
law establishing section 1385 cannot be used for purposes other than to
33
dismiss offenses or allegations in an accusatory pleading, and specifically
cannot be used to reduce a verdict of first degree murder to second degree
murder. (Varnell, supra, at p. 1137.)
The Varnell court stated: “ ‘The only action that may be dismissed
under Penal Code section 1385, subdivision (a), is a criminal action or a part
thereof.’ [Citation.] We have consistently interpreted ‘action’ to mean the
‘individual charges and allegations in a criminal action’ [citations] and have
never extended it to include mere sentencing factors. Thus, our courts have
refused to permit trial courts to invoke section 1385 to dismiss sanity
proceedings or a plea of insanity [citation]; to reduce a verdict of first degree
murder to second degree murder (People v. Superior Court (Prudencio) (1927)
202 Cal. 165, 173–174 [(Prudencio)], disapproved on other grounds in People
v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501; cf. § 1181, pars. 6, 7);
to reduce the offense of conviction to an uncharged lesser related offense
[citation]; or to enter a judgment of acquittal [citation]. A ruling that
section 1385 could be used to disregard sentencing factors, which similarly
are not included as offenses or allegations in an accusatory pleading, would
be unprecedented.” (Varnell, supra, 30 Cal.4th at p. 1137, second italics
added.)
In Prudencio, cited in Varnell, the defendant was charged with murder,
a charge that encompassed “murder of the first degree and . . . all the
subdivisions and lesser degrees of murder and also manslaughter.”
(Prudencio, supra, 202 Cal. at p. 167.) Although the jury returned a verdict
of first degree murder, the court “assumed” the verdict was for second degree
murder and entered judgment for the lesser crime. (Id. at p. 168.) The
Supreme Court rejected a belated contention that the reduction from first
34
degree to second degree murder was justified under section 1385. (Prudencio,
supra, at pp. 173–174.)
The information here charged Birdsall and Nicosia in count one with “a
Felony, to wit: MURDER, a violation of section 187(a) of the PENAL CODE
of California, in that . . . said defendants did unlawfully, and with malice
aforethought, murder [Latiolais], a human being.” No allegation as to the
degree of the crime was included or could be stricken under section 1385.
(Varnell, supra, 30 Cal.4th at pp. 1134–1135, 1137; Prudencio, supra,
202 Cal. at pp. 167, 173–174.)
Birdsall did not cite Varnell or Prudencio in his opening brief. In
response to the Attorney General’s citation of those cases, Birdsall argues in
reply that Prudencio’s discussion of section 1385 is dicta, and that Varnell did
not acknowledge an intervening decision—People v. Marsh (1984) 36 Cal.3d
134—that he contends is inconsistent with Prudencio. We do not agree that
Prudencio’s discussion of section 1385 (in response to an argument that the
trial court’s action there was justified under the statute) was dicta.
(Prudencio, supra, 202 Cal. at pp. 173–174.) But in any event the Supreme
Court in Varnell approved and reaffirmed the principle established in
Prudencio, and we will follow it. (Varnell, supra, 30 Cal.4th at p. 1137.)15
15 In People v. Tirado (2022) 12 Cal.5th 688, 700, footnote 13, the
Supreme Court concluded Prudencio was not instructive on the question
whether a trial court has authority under section 12022.53 to impose a lesser
firearm enhancement after striking a greater one. Among the distinctions it
noted between Prudencio and the case before it, the Tirado court stated:
“Unlike Prudencio, this is not a murder case, and section 12022.53 does not
limit a trial court to imposing the enhancement found true by the jury.”
(Tirado, at p. 700, fn. 13.) Tirado did not hold or state that the portion of
Prudencio relied on by Varnell—the principle that section 1385 does not
authorize a trial court to reduce a conviction of first degree murder to second
degree murder—is invalid. (Varnell, supra, 30 Cal.4th at p. 1137.)
35
Marsh and the other authorities on which Birdsall relies—
section 190.03 and People v. Hatch (2000) 22 Cal.4th 260—address different
situations and do not persuade us to depart from Varnell and Prudencio.
(See § 190.03, subds. (a)–(b) [trial court may strike, “in the interest of
justice,” an allegation in the accusatory pleading that a first degree murder is
a hate crime]; Hatch, supra, at pp. 268–269, 273, 276 [discussing scope of
section 1385 generally; referring to prior case where trial court dismissed
murder charges under section 1385 after a mistrial]; People v. Marsh, supra,
36 Cal.3d at pp. 143–144 & fn. 7 [section 1385 may be used to strike ransom
and bodily harm allegations associated with kidnaping charge under
section 209].)
5. Equal Protection
Birdsall contends his LWOP sentence should be reversed because the
statute under which it was imposed—section 190.5, subdivision (b)—violates
the equal protection provisions of the federal and state constitutions (U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)). He argues the statute
is unconstitutional because it authorizes imposition of an LWOP sentence (or
a sentence of 25 years to life) for 16 and 17 year olds but not 14 and 15 year
olds.16 We disagree.
16 As discussed, section 190.5, subdivision (b) authorizes LWOP or a
term of 25 years to life for 16- and 17-year-old offenders convicted of first
degree murder with special circumstances. Prior to 2019, a 14- or 15-year-old
offender convicted of first degree murder in adult criminal court would be
sentenced to a term of 25 years to life; LWOP was not an available sentence.
(§§ 190, subd. (a), 190.5, subd. (b); see Gutierrez, supra, 58 Cal.4th at p. 1393
(conc. opn. of Corrigan, J.).)
Following the Legislature’s 2018 enactment of Senate Bill No. 1391
(2017–2018 Reg. Sess.), juveniles accused of committing crimes when they
are 14 or 15 years old cannot be transferred from juvenile court to adult
36
The right to equal protection is violated when “the government . . .
treat[s] a [similarly situated] group of people unequally without some
justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288.) The degree of
required justification depends on the classification at issue. Distinctions that
involve suspect classifications (such as race) or affect fundamental rights are
subject to strict scrutiny, and will be upheld only if they are necessary to
achieve a compelling state interest. (Ibid.) But when “a statute involves
neither a suspect class nor a fundamental right, it need only meet minimum
equal protection standards, and survive ‘rational basis review.’ ” (People v.
Turnage (2012) 55 Cal.4th 62, 74.) Under that standard, “equal protection of
the law is denied only where there is no ‘rational relationship between the
disparity of treatment and some legitimate governmental purpose.’ ” (Ibid.)
Even if we assume older and younger juveniles are similarly situated so
as to trigger some level of equal protection scrutiny, section 190.5,
subdivision (b)’s authorization of LWOP sentences for 16 and 17 year olds but
not for younger teens does not violate equal protection.
First, the statute need only pass the rational basis test. Birdsall
concedes age is not a suspect classification. (E.g., Hicks v. Superior Court
(1995) 36 Cal.App.4th 1649, 1657.) He contends, however, that strict
scrutiny is appropriate here because section 190.5, subdivision (b) affects a
fundamental interest, his personal liberty. We disagree. A defendant has no
fundamental right or liberty interest “ ‘in a specific term of imprisonment or
criminal court, unless they are first apprehended after the end of juvenile
court jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1)–(2); O.G. v.
Superior Court (2021) 11 Cal.5th 82, 87, 89 (O.G.).) Accordingly, in most
cases, a juvenile in this age group who is accused of murder no longer faces
the potential adult-court punishment of 25 years to life that was previously
available.
37
in the designation a particular crime receives.’ ” (People v. Wilkinson (2004)
33 Cal.4th 821, 838.) We acknowledge that our Supreme Court’s decision in
People v. Olivas (1976) 17 Cal.3d 236, 239, 251 (cited by Birdsall) suggested
that strict scrutiny may apply to differential treatment arising out of the
classification of crimes, but the court’s subsequent decision in Wilkinson
limited Olivas and rejected the proposition that “ ‘Olivas . . . require[s] the
courts to subject all criminal classifications to strict scrutiny . . . .’ ”
(Wilkinson, supra, at p. 838.)
As to the difference between juvenile and adult court treatment for
youthful offenders, our Supreme Court has noted that a defendant has “no
right to be subject to the juvenile court law.” (Manduley v. Superior Court
(2002) 27 Cal.4th 537, 570.) To the extent the exercise of prosecutorial
discretion leads to different treatment for individual juveniles who are within
the age group that is eligible for transfer to adult court (with some cases
moving to adult court and others remaining in juvenile court), this difference
in treatment does not violate equal protection. (Id. at pp. 567–568, 570; see
Welf. & Inst. Code, § 707, subd. (a) [for an alleged offender who is 16 or older,
the prosecutor “may” move to transfer the matter to adult court].) Birdsall
concedes that he and other 16- and 17-year-old offenders who are tried in
adult court (and thus become subject to the LWOP and 25 years to life
sentences authorized by § 190.5, subd. (b) if they are found guilty of special
circumstance murder) are not denied equal protection because other 16- and
17-year-old offenders remain in juvenile court.
Birdsall contends, however, that 16- and 17-year-old offenders who are
tried in adult court are denied equal protection by the legislative decision to
“exempt” 14- and 15-year-old offenders from being tried in adult court. He
suggests that because 14 and 15 year olds are capable of committing crimes
38
(see § 26), equal protection principles require that they (along with 16 and 17
year olds) be eligible for adult court treatment, including the life sentences
authorized by section 190.5, subdivision (b).
We reject the notion that age 14 is the only constitutionally permissible
cutoff for adult court treatment. As our Supreme Court explained recently in
O.G., supra, 11 Cal.5th at p. 88, for decades beginning in 1961, the minimum
age for adult court treatment in California was age 16. In 1995, California
began to allow prosecution of some 14 and 15 year olds in adult court (ibid.),
but Senate Bill No. 1391, which took effect January 1, 2019, “marked a
return” to “the historical rule,” i.e., “the rule in place beginning in 1961 and
for close to 34 years thereafter—16 again became the minimum age for
transferring a minor to criminal court.”17 (O.G., supra, at p. 89.) We decline
to hold the age 14 cutoff that applied in the interim became set in stone for
equal protection purposes. And in light of the “ ‘sea change in penology
regarding the relative culpability and rehabilitation possibilities for juvenile
offenders’ ” that has occurred in recent decades in response to scientific
research about adolescent brain development (id. at p. 88), we conclude the
goal of treating younger and less mature juveniles more leniently than older
ones is, at the very least, a legitimate governmental purpose within the
meaning of the rational basis test. California’s current approach—allowing
adult court prosecution of some 16 and 17 year olds but no younger
17 While the age cutoff for adult court treatment has changed, the
limitation of LWOP eligibility to those 16 and older has not. Section 190.5,
subdivision (b), which has remained unchanged since 1990, has never
authorized an LWOP sentence for an offender younger than 16 (a feature of
California law that was praised in 2014 in a concurring opinion signed by
four members of our Supreme Court). (See Gutierrez, supra, 58 Cal.4th at
p. 1393 (conc. opn. of Corrigan, J.).)
39
juveniles—bears a rational relationship to that purpose. We reject Birdsall’s
equal protection claim.
6. Due Process
Relying on the same themes he pressed in his equal protection claim,
Birdsall argues section 190.5, subdivision (b) violates the due process clauses
of the federal and state constitutions (U.S. Const., 14th Amend.; Cal. Const.,
art. I, § 7, subd. (a)) because it subjects 16 and 17 year olds, but not 14 and 15
year olds, to LWOP sentences. We disagree. For the reasons we discussed
above in connection with the equal protection argument, the current
legislative scheme does not violate due process. A defendant in Birdsall’s
position has no right to have his case adjudicated in juvenile court (Manduley
v. Superior Court, supra, 27 Cal.4th at pp. 562, 567, 570, 573 [rejecting
procedural due process and equal protection challenges to then-existing
legislative scheme allowing adult court prosecution of juveniles]), and
California’s practice of treating younger juveniles more leniently than older
ones is far from arbitrary or irrational. (See People v. Grant (2011)
195 Cal.App.4th 107, 113–114 [in absence of fundamental liberty interest,
substantive due process requires only that legislation have a rational
relationship to a valid state interest]; see also O.G., supra, 11 Cal.5th at
pp. 88–89, 92; Gutierrez, supra, 58 Cal.4th at p. 1393 (conc. opn. of
Corrigan, J.).)
7. Franklin Hearing
Birdsall argues briefly that, if this court finds his Eighth Amendment
claims are moot (as we have done in part II.B.1., ante), we should remand for
“a Franklin proceeding” to preserve evidence that will be relevant at a future
youth offender parole hearing under section 3051 or other future proceedings.
(See Franklin, supra, 63 Cal.4th at p. 284.) In Franklin, the Supreme Court
held that, in some circumstances, it may be necessary to create a record so
40
that “information regarding the juvenile offender’s characteristics and
circumstances at the time of the offense will be available at a youth offender
parole hearing to facilitate” the decision by the Board of Parole Hearings as
to whether to grant parole. (Id. at p. 283.) The Franklin court remanded to
the trial court to determine whether the defendant had been afforded a
sufficient opportunity to put such information on the record, and if not, to
hold a hearing where he could do so. (Id. at p. 284.)
Here, as the Attorney General notes, and as Birdsall acknowledges, the
juvenile court transfer hearing that was held in December 2019 on remand
after Birdsall’s first appeal included the taking of evidence about Birdsall’s
background. Birdsall does not contend the record created at the transfer
hearing will be an inadequate basis for the Board of Parole Hearings to
understand his “characteristics and circumstances at the time of the offense.”
(Franklin, supra, 63 Cal.4th at p. 283.) He argues, however, that a remand is
necessary so he can create a record of his prison conduct and rehabilitation
during the time that has elapsed since the December 2019 transfer hearing.
We are not persuaded a second remand is warranted here. Because
Birdsall has submitted evidence about his background, the Board of Parole
Hearings will be able to assess, at a future youth offender parole hearing, his
“ ‘subsequent growth and increased maturity’ ” as measured from that
baseline. (Franklin, supra, 63 Cal.4th at p. 283, citing § 4801, subd. (c); see
§ 3051, subd. (f )(1).) As the Franklin court noted, “[c]onsideration of
‘subsequent growth and increased maturity’ implies the availability of
information about the offender when he was a juvenile,” which is the reason it
is necessary to gather evidence on that subject. (Franklin, supra, at p. 284,
italics added.) That has been done here. We do not read Franklin as
requiring further periodic update hearings to preserve snapshots of an
41
offender’s rehabilitative progress, evidence of which he will be able to present
at his eventual youth offender parole hearing. (See §§ 3051, subd. (f ), 4801,
subd. (c).)
C. The Jury Instruction on Felony Murder
Birdsall contends that, in light of recent legislative enactments, the
jury instruction given at his trial on “the felony-murder theory of first degree
murder” was prejudicially erroneous, requiring reversal of his first degree
murder conviction and the accompanying special circumstance findings. He
relies on Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437),
which took effect on January 1, 2019, and Senate Bill No. 775 (2021–2022
Reg. Sess.) (Senate Bill 775), effective January 1, 2022. We conclude that,
while Birdsall may seek relief under these enactments in this appeal, he is
not entitled to relief on this record and there is no basis for reversal.
1. Senate Bill 1437
Senate Bill 1437 “ ‘amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’
(Stats. 2018, ch. 1015, § l, subd. (f ).)” (People v. Gentile (2020) 10 Cal.5th
830, 842 (Gentile).)
As outlined by our Supreme Court in Gentile, Senate Bill 1437
furthered that purpose by adding three provisions to the Penal Code:
“First, to amend the felony-murder rule, Senate Bill 1437 added
section 189, subdivision (e): ‘A participant in the perpetration or attempted
perpetration of [qualifying felonies] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent
42
to kill, aided, abetted, counseled, commanded, induced, solicited, requested,
or assisted the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying felony and acted
with reckless indifference to human life, as described in subdivision (d) of
Section 190.2.’ . . . .
“Second, to amend the natural and probable consequences doctrine,
Senate Bill 1437 added section 188, subdivision (a)(3) . . . : ‘Except [for
felony-murder liability] as stated in subdivision (e) of Section 189, in order to
be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.’
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and
probable consequences doctrine to seek relief under the two ameliorative
provisions above.” (Gentile, supra, 10 Cal.5th at pp. 842–843.)
Specifically, as to the third change noted by the Gentile court, under
section 1170.95, the convicted person “may file a petition with the court that
sentenced the petitioner to have the petitioner’s . . . conviction vacated and to
be resentenced on any remaining counts” when certain conditions apply.
(§ 1170.95, subd. (a).)
2. Senate Bill 775
Senate Bill 775 amended section 1170.95 in several respects, including
(1) clarifying that, in some circumstances, the same relief available to
persons convicted of murder is also available to persons convicted of
attempted murder or manslaughter (§ 1170.95, subd. (a); Stats. 2021, ch. 551,
43
§§ 1, subd. (a), 2)18; and (2) addressing various aspects of the petition
procedure, including the petitioner’s right to counsel, the standard for
determining the existence of a prima facie case, the burden of proof at the
hearing to determine whether a petitioner is entitled to relief, and the
evidence a court may consider at that hearing (§ 1170.95, subds. (b)–(d);
Stats. 2021, ch. 551, §§ 1, subds. (b)–(d), 2).
Significantly for the present case, Senate Bill 775 amended
section 1170.95 to provide that a person with a qualifying conviction that is
not final may challenge the validity of that conviction on direct appeal based
on Senate Bill 1437’s changes to the murder statutes. (§ 1170.95, subd. (g);
Stats. 2021, ch. 551, § 2.) Section 1170.95, subdivision (g) states: “A person
convicted of murder, attempted murder, or manslaughter whose conviction is
not final may challenge on direct appeal the validity of that conviction based
on the changes made to Sections 188 and 189 by Senate Bill 1437 . . . .” A
defendant whose conviction is not final is not required to use the petition
procedure set forth in section 1170.95 to seek Senate Bill 1437 relief, but may
instead raise the Senate Bill 1437 claim on direct appeal.19 (Assem. Com. on
18 In an uncodified statement of purpose, Senate Bill 775 states that it
“[c]larifies that persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural and probable
consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1,
subd. (a).)
19 Our Supreme Court held in Gentile that “[t]he ameliorative
provisions of Senate Bill 1437 do not apply on direct appeal to nonfinal
convictions obtained before the law became effective. Such convictions may
be challenged on Senate Bill 1437 grounds only through a petition filed in the
sentencing court under section 1170.95.” (Gentile, supra, 10 Cal.5th at
pp. 851–852.) By expressly authorizing defendants whose convictions are not
final to seek relief under Senate Bill 1437 on direct appeal (§ 1170.95,
44
Public Safety, Rep. on Sen. Bill No. 775 (2021–2022 Reg. Sess.) as amended
July 6, 2021, pp. 1–2 [“[T]his bill: [¶] . . . [¶] [(1)] (j) [s]tates that a person
convicted of murder, attempted murder, or manslaughter, whose conviction is
not final, may challenge the validity of that conviction on direct appeal rather
than via the petition.” (Italics added.)]; id. at p. 11; accord, People v. Hola
(Apr. 11, 2022, C087459) ___ Cal.App.5th ___ [2022 Cal.App.LEXIS 303, *11
& fn. 7] [under Senate Bill 775, defendants whose convictions are not final
may raise Senate Bill 1437 claims on direct appeal as an “alternative” to the
petition procedure; further stating, “Nothing in the legislation precludes
defendants who do not seek relief on appeal from seeking relief via the
section 1170.95 petition procedure after the appeal is completed.”].)
Because Birdsall’s murder conviction is not yet final, he may raise his
Senate Bill 1437 claim in this appeal. (See People v. Vieira (2005) 35 Cal.4th
264, 305–306 [conviction is not final while appeal is pending].)
3. Background to Birdsall’s Senate Bill 1437 Claim:
The Trial Court’s Instructions on Murder
The trial court instructed the jury on two theories that could have led
to a first degree murder conviction: (1) premeditated murder, i.e., a killing
with malice aforethought (CALCRIM Nos. 548, 520), elevated to first degree
murder by proof that Birdsall “acted willfully, deliberately, and with
premeditation” (CALCRIM No. 521), and (2) first degree felony murder, i.e., a
killing during a burglary or robbery (CALCRIM Nos. 548, 540A). As to the
felony-murder theory, the court gave an instruction (CALCRIM No. 540A)
permitting conviction if Birdsall, while committing or attempting to commit a
subd. (g), enacted by Stats. 2021, ch. 551, § 2), Senate Bill 775 has abrogated
Gentile.
45
burglary or robbery, “caused the death of another person.”20 The court did
not give the related pattern instruction permitting conviction if a
coparticipant in the underlying felony “caused the death of another person”
(CALCRIM No. 540B).21
Birdsall argues his conviction of first degree murder was based on the
felony-murder theory, which he contends is defective in light of Senate
Bills 1437 and 775.
4. Birdsall Is Not Entitled to Relief
As noted, Birdsall contends the instruction given at his trial on “the
felony-murder theory of first degree murder” (based on CALCRIM No. 540A)
was prejudicially erroneous. Specifically, he argues the instruction was
defective because it “omi[tted]” “essential elements” that now (under Senate
Bill 1437) must be proven to establish felony murder liability, i.e., that he
was the actual killer; or, with the intent to kill, he aided in the commission of
20The court’s instruction stated: “The defendant is guilty of murder
under the theory of felony murder if the People have proved that: [¶] 1. The
defendant committed or attempted to commit burglary or robbery; [¶] 2. The
defendant intended to commit burglary or robbery; [¶] AND [¶] 3. While
committing or attempting to commit burglary or robbery, the defendant
caused the death of another person. [¶] A person may be guilty of felony
murder even if the killing was unintentional, accidental, or negligent.
[¶] The defendant must have intended to commit the felony of burglary or
robbery before or at the time that he caused the death. [¶] If you find that
the defendant is guilty of murder under a theory of felony murder, it is
murder in the first degree.” (Italics added.)
21 In addition to instructing on felony murder as a basis for a first
degree murder conviction (CALCRIM No. 540A), the court instructed on the
felony-murder special circumstance (CALCRIM No. 730). That instruction,
too, required the jury to find “[t]he defendant did an act that caused the death
of another person.” (Italics added.) Birdsall does not challenge the
correctness of the court’s instruction on the felony-murder special
circumstance.
46
first degree murder; or, as a major participant in the underlying burglary
and/or robbery, he acted with reckless indifference to human life. (§§ 188,
subd. (a)(3), 189, subd. (e)(1)–(3); see People v. Merritt (2017) 2 Cal.5th 819,
824 (Merritt) [failure to instruct on some of the elements of a charged crime is
constitutional error].) The Attorney General partially accepts this premise,
stating, “[w]e agree with [Birdsall] that under his assertions, the new
statutes [i.e., Senate Bills 1437 and 775] essentially insert ‘omitted element’
error into this record,” although the Attorney General argues the error was
harmless. We agree any error was harmless.
a. The Framework for Determining Whether There Was Error and,
If So, Whether the Error Was Prejudicial
When a trial court instructs on a theory of guilt that “is legally
erroneous at the time it was given,” a reviewing court “normally assess[es]
whether the error was harmless beyond a reasonable doubt under Chapman
v. California (1967) 386 U.S. 18, 24. [Citation.] We ‘must reverse the
conviction unless, after examining the entire cause, including the evidence,
and considering all relevant circumstances, [we] determine[] the error was
harmless beyond a reasonable doubt.’ ” (Gentile, supra, 10 Cal.5th at p. 851.)
The Chapman standard applies both to “alternative-theory error” (i.e.,
instruction on multiple theories of guilt, one of which is legally erroneous)
and to other errors involving the omission or misdescription of elements of a
charged offense. (People v. Aledamat (2019) 8 Cal.5th 1, 3, 9 (Aledamat).)22
22 Birdsall briefly suggests that a different or higher standard applies
in the context of alternative-theory error, and that reversal is required here
unless this court can determine beyond a reasonable doubt that the jury
based its verdict on the legally valid theory of malice-premeditation, rather
than the allegedly invalid felony-murder theory. Our Supreme Court rejected
this view in Aledamat, holding “that no higher standard of review applies to
alternative-theory error than applies to other misdescriptions of the
47
Here, of course, Birdsall does not contend the felony-murder instruction
given at his 2015 trial was legally erroneous “at the time it was given.”
(Gentile, supra, 10 Cal.5th at p. 851.) He argues the instruction is erroneous
in light of Senate Bill 1437’s changes to the law of murder (specifically,
§§ 188 and 189), which took effect on January 1, 2019. As noted, prior to the
enactment of Senate Bill 775, such claims could only be presented by filing a
section 1170.95 petition in the sentencing court. (Gentile, supra, 10 Cal.5th
at pp. 851–852.) But now, pursuant to Senate Bill 775, a person in Birdsall’s
situation (i.e., a person whose murder conviction is not final) may contend on
direct appeal that the conviction is invalid based on Senate Bill 1437’s
changes to the law of murder. (§ 1170.95, subd. (g), as amended by
Stats. 2021, ch. 551, § 2.)
We agree with the parties that, in light of Senate Bill 775, an
appropriate method for analyzing Birdsall’s claim in this direct appeal is to
include Senate Bill 1437’s changes to the law of murder as part of the body of
law against which the correctness of the trial court’s felony-murder
instruction is measured. If the instruction omitted or misdescribed the
elements that now must be proven to establish felony murder as a basis for a
first degree murder conviction, we will treat the instruction as having been
“legally erroneous at the time it was given” (Gentile, supra, 10 Cal.5th at
p. 851),23 and we will proceed to “assess whether the error was harmless
elements.” (Aledamat, supra, 8 Cal.5th at p. 9; id. at p. 13 [“An examination
of the actual verdict may be sufficient to demonstrate harmlessness, but it is
not necessary.”].)
23See People v. Chun (2009) 45 Cal.4th 1172, 1201, footnote 8 (“When
we say the trial court erred, we mean, of course, only in light of our
reconsideration of past precedents. As of the time of trial, . . . , ample
authority supported the trial court’s decision to instruct on felony murder.”).
48
beyond a reasonable doubt” under Chapman. (Gentile, supra, at p. 851;
Aledamat, supra, 8 Cal.5th at p. 9; see People v. Hola, supra, ___ Cal.App.5th
___ [2022 Cal.App.LEXIS 303, at p. *22 & fn. 14] [reversal may be warranted
“when there is a change in the law during an appeal that invalidates a
previously valid legal theory relied upon by prosecution,” but “[r]eversal
would not be warranted where the error is harmless beyond a reasonable
doubt”].)
b. The Alleged Error
As to the alleged error here, Birdsall contends the court’s instruction
was defective because it did not state the rule in section 189, subdivision (e)
(added by Senate Bill 1437) that a participant in an enumerated felony in
which a death occurs is liable for murder “only if one of the following is
proven”: (1) “[he] was the actual killer,” (2) “[he] was not the actual killer,
but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder
in the first degree,” or (3) “[he] was a major participant in the underlying
felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.” (§ 189, subd. (e), italics added.)
We note initially that the statute sets forth three alternative bases for
imposing felony murder liability, only some of which might be appropriately
included in an instruction in a given case, depending on the evidence
presented and the theories pursued by the prosecution. (§ 189, subd. (e) [“one
of the following” must be proven]; see CALCRIM Nos. 540A, 540B [allowing
presentation of fewer than all theories of liability].) To the extent Birdsall
suggests that all three of these separate grounds for conviction are “essential
elements” that must be included in a felony-murder instruction, we disagree.
But he is correct that the felony-murder instruction given at his trial
(CALCRIM No. 540A) did not present, in the current language of the statute,
49
any of the three grounds that can now form the basis for a felony-murder
conviction.
CALCRIM No. 540A as given by the court did state that, to convict
Birdsall of felony murder, the jury had to find that, “[w]hile committing or
attempting to commit burglary or robbery, the defendant caused the death of
another person.” (Italics added.) We need not address the parties’ arguments
(which they present indirectly as part of their discussion of prejudice) about
whether this or similar language sufficiently conveys the current rule that a
defendant may be guilty of felony murder if he is “the actual killer.”24 (§ 189,
subd. (e)(1); see People v. Garcia (2020) 46 Cal.App.5th 123, 149, 155
[prosecutor argued felony-murder special circumstance should apply to
defendant as an “actual killer” if he handed a roll of duct tape to a
coperpetrator; appellate court held the instruction on the special
circumstance (CALCRIM No. 730) should have required that “the prosecution
prove[] beyond a reasonable doubt that [the defendant] ‘personally killed’ [the
victim],” rather than requiring “only that the prosecution . . . prove that [the
defendant] ‘did an act that caused the death of another person,’ ” italics
added] (Garcia).)25 Even assuming the challenged instruction did not
24 As noted, the court did not instruct on the alternative theory that a
coparticipant in the underlying felony caused the victim’s death (CALCRIM
No. 540B). That instruction has since been modified to describe the grounds
for felony-murder liability for nonkillers, i.e., that the defendant acted with
the intent to kill and aided the commission of first degree murder, or was a
major participant in the underlying felony who acted with reckless
indifference to human life. (§ 189, subd. (e)(2)–(3); see CALCRIM No. 540B,
as revised Apr. 2020 and Sept. 2020; see also CALCRIM No. 540C, as revised
Apr. 2020 [felony murder where victim’s death resulted from “other acts”].)
25 We note the current versions of CALCRIM Nos. 540A (felony murder
as a basis for a first degree murder conviction) and 730 (felony-murder
special circumstance), like the versions of these instructions that were given
50
sufficiently convey this rule (or the other alternative bases for imposing
felony murder liability under current law), we conclude below that the error
was harmless beyond a reasonable doubt.
c. Prejudice
As noted, applying the Chapman standard to the alleged instructional
error here, we “must reverse the conviction unless, after examining the entire
cause, including the evidence, and considering all relevant circumstances,
[we] determine[] the error was harmless beyond a reasonable doubt.”
(Aledamat, supra, 8 Cal.5th at p. 13.) In Merritt, our Supreme Court applied
the Chapman standard where the trial court failed to instruct on several
elements of the charged crime of robbery. (Merritt, supra, 2 Cal.5th at
pp. 822, 824–825, 831–832; see Aledamat, supra, at p. 9.) The Merritt court
found the instructional error harmless based on several circumstances,
including that defense counsel conceded the two charged robberies occurred
(contesting only the defendant’s identity as the perpetrator); there was
overwhelming evidence the robberies occurred; and the jury was properly
instructed on, and resolved, several key issues, including the defendant’s
identity as the perpetrator, and that he acted with the required mental state
for robbery and used a firearm during the offense. (Merritt, supra, 2 Cal.5th
at pp. 831–832.)
Similarly, here, we conclude the alleged instructional error was
harmless. As discussed, under current law, a proper ground for a conviction
of felony murder is that Birdsall “was the actual killer.” (§ 189, subd. (e)(1).)
It is clear beyond a reasonable doubt that a rational jury would have adopted
at Birdsall’s trial, include as an element that the defendant “caused,” or “did
an act that caused,” “the death of another person.” (CALCRIM No. 540A, as
revised Sept. 2019; CALCRIM No. 730, as revised Mar. 2021.)
51
this theory, and thus would have found Birdsall guilty of felony murder, even
absent the purported error. (Merritt, supra, 2 Cal.5th at pp. 827, 831.)
Birdsall’s trial counsel stated at the outset of her closing argument that
she was “not contesting that Ms. Latiolais was killed, the manner in which
she was killed, what happened.” Counsel stated she was “only here to talk to
you about why it happened, and what was going on in Christian Birdsall’s
mind”; as noted, counsel argued Birdsall was in a dissociated state and did
not form the required mental states for conviction. Counsel’s decision not to
contest the prosecution’s account of how Latiolais was killed was virtually
compelled by the overwhelming evidence on that point in the form of
Birdsall’s confession, in which he described in detail how he and Nicosia
assaulted and strangled Latiolais.26
“ ‘[W]here a reviewing court concludes beyond a reasonable doubt that
the omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless.’ ” (Merritt,
supra, 2 Cal.5th at p. 832, quoting Neder v. United States (1999) 527 U.S. 1,
17.) In light of the overwhelming and uncontested evidence as to how
Latiolais was killed (by an attack in which Birdsall and Nicosia used
chokeholds and then jointly strangled her to death with a rope), we are
persuaded beyond a reasonable doubt that a rational jury instructed under
current law would have found Birdsall was “the actual killer” (§ 189,
26 In his supplemental brief on the Senate Bill 1437 issue, Birdsall
reiterates his argument that his confession should have been suppressed, and
he suggests the confession therefore should not be considered in assessing
whether the alleged instructional error was prejudicial. We have concluded
in part II.A., ante, that the confession was properly admitted.
52
subd. (e)(1)), because he and Nicosia “ ‘personally killed’ ” Latiolais. (Garcia,
supra, 46 Cal.App.5th at pp. 151–152.)27
Birdsall asserts in a footnote that the evidence here “does not
necessarily establish that Birdsall, as opposed to [Nicosia], killed Latiolais.”
We are not persuaded by this undeveloped argument. As discussed, based on
Birdsall’s own uncontested account of the murder, we conclude beyond a
reasonable doubt that a rational jury would have found Birdsall (along with
Nicosia) personally killed Latiolais. (See Garcia, supra, 46 Cal.App.5th at
p. 150 [“under the facts of this case, only the person (or people) who placed the
duct tape on [the victim’s] mouth were actual killers” (italics added) under
the special circumstance statute, § 190.2].)
Also of significance here, the court correctly instructed on the
remaining elements of felony murder. The court instructed that, to find
Birdsall guilty of first degree murder on a felony-murder theory, the jury had
to find (1) he “committed or attempted to commit burglary or robbery,” (2) he
“intended to commit burglary or robbery,” and (3) “[w]hile committing or
attempting to commit burglary or robbery, [Birdsall] caused the death of
another person.” The court also instructed on the elements of burglary and
robbery and on attempt. To adopt the felony-murder theory of first degree
murder, the jury would have had to find these elements to be true. (See
Merritt, supra, 2 Cal.5th at p. 832 [proper instructions and findings on
27 Because the jury would have found Birdsall guilty of felony murder
as an actual killer, we need not consider the parties’ arguments as to whether
the jury also would have found him guilty on one of the alternative grounds
permitted under current law (i.e., as a direct aider and abettor of first degree
murder who had the intent to kill, or as a major participant in the underlying
felony who acted with reckless indifference to human life). (§ 189,
subd. (e)(2)–(3).) We also need not address the parties’ arguments as to
whether the alleged error was harmless on other grounds.
53
contested elements supported conclusion that omission of other elements was
harmless].)
In his supplemental appellate brief, Birdsall emphasizes that, at trial,
his mental state (including whether he acted with malice) was a contested
issue. But that does not affect our conclusion the jury would have found
Birdsall liable as an actual killer under current law. Under sections 188 and
189 as amended, if a death occurs during a burglary or a robbery, an actual
killer is guilty of first degree felony murder without the need to prove he
acted with express or implied malice. (§§ 188, subd. (a)(3) [“Except as stated
in [§ 189, subd. (e)],” malice is now required for a murder conviction], 189,
subd. (e)(1) [actual killer is liable if death occurs during specified felony].)
We also note that, as to the mental state element that the prosecution
did have to prove, i.e., that Birdsall intended to commit burglary or robbery,
the court instructed on that point, and the jury found it to be true, as
reflected in the true findings on the felony-murder special circumstances. It
is clear the jury rejected the defense view that, due to dissociation, Birdsall
did not form those mental states.28
D. Cumulative Prejudice
Birdsall argues in his supplemental brief that reversal is required due
to cumulative prejudice flowing from (1) the allegedly erroneous admission of
his confession, and (2) the failure to instruct on the post-Senate Bill 1437
elements of felony murder. We have concluded in part II.A., ante, that
28 In addition, although it is not necessary to our conclusion as to
prejudice, the Attorney General correctly notes the jury’s true finding on the
lying-in-wait special circumstance establishes the jury found Birdsall acted
with the intent to kill. The instruction on the lying-in-wait special
circumstance (CALCRIM No. 728) required the jury to find Birdsall
“intentionally killed” Latiolais and that he “intended to kill [Latiolais] by
taking [her] by surprise.”
54
Birdsall’s confession was properly admitted, and in part II.C., ante, that the
purported instructional error was harmless. There are not multiple errors
here that could combine to support a claim of cumulative prejudice.
III. DISPOSITION
The judgment is affirmed.
STREETER, Acting P. J.
WE CONCUR:
BROWN, J.
ROSS, J.*
*Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
55
Trial Court: Superior Court of California, County of Alameda
Trial Judges: Hon. Rhonda Burgess and Hon. Jon Rolefson
Counsel: Waldemar D. Halka, by appointment of the Court of Appeal
Under the First District Appellate Project, for Defendant
and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Donna M. Provenzano, Supervising
Deputy Attorney General, David H. Rose, Deputy
Attorney General, for Plaintiff and Respondent.
People v. Birdsall A159555