Opinion
H045451
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1359497)
A jury convicted defendant Robert Alvarez of murder and three counts of second degree robbery. The jury also found true a felony murder special circumstance allegation, as well as gang allegations attached to the murder count and to one count of robbery. After finding that defendant had suffered two prior strike convictions, the trial court sentenced him to life without parole consecutive to 50 years to life consecutive to six years. On appeal, defendant raises claims of evidentiary error, prosecutorial misconduct, instructional error, insufficiency of the evidence, and cumulative error. He also challenges the constitutionality of the felony murder special circumstance and the constitutionality of his life without the possibility of parole sentence. We shall affirm.
I. BACKGROUND
A. Factual Summary
1. The Events of June 12 and 13, 2013
On the evening of June 12, 2013, sisters Cassandra Reyes and S.M. and their respective boyfriends, defendant and Christopher M., drove to a 7-Eleven in San Jose. At that time, Reyes was 24 years old, S.M. was 16 years old, defendant was 21 years old, and Christopher was 17 years old. Reyes drove the group in her mother's silver Cadillac.
Defendant and Christopher went into the 7-Eleven while the sisters waited in the car. According to Reyes, defendant and Christopher returned with chips, soda, cans of Four Loko, and beer. Reyes knew defendant did not have the money to pay for the items and he confirmed to her that he "took" them. Defendant told Reyes to drive to another 7-Eleven so they could get more beer. She complied. Again, defendant and Christopher went inside while Reyes and S.M. remained in the car. Again, defendant and Christopher returned with beer and Four Loko and told Reyes to drive to another 7-Eleven. Reyes testified that this pattern continued until they had gone to five or six different 7-Elevens. S.M., who testified under a grant of immunity, likewise testified that she, her sister, defendant, and Christopher drove to multiple 7-Elevens; that at each store only Christopher and defendant went inside; and that each time they returned with Four Loko and beer.
Four Loko is a malt beverage that contains 12 percent alcohol by volume. It is sold in 23.5-ounce nonresealable cans.
Just before midnight, defendant and Christopher entered the 7-Eleven owned by Edward N. According to the clerk on duty, R.P., one of the men picked out some beer while the other stood near the door. When R.P. asked the men to pay, the one near the door cursed at him, displayed a 12-inch knife that was hanging by his belt, and threatened to kill R.P. Edward, who was in the back of the store, heard shouting and came to the front. He saw the men leave without paying for the beer. Edward did not try to stop the men because, while he did not see the knife, he nevertheless believed intervening could be dangerous because there were two of them, they were cursing, and they might have been armed. Outside, Edward saw the men get into a four-door gray Cadillac; he wrote down the license plate number and called the police. The license plate number Edward provided to police was 5FLD322. The license plate number on Reyes's mother's Cadillac was 5FLB932. Surveillance video of the incident was played at trial. It shows a male wearing a jersey with the number 18 on it holding a knife and another male holding beer. S.M. testified that on the night of the 7-Eleven robberies, Christopher was wearing a jersey with the number 18 on it.
During the course of the night, defendant drank Four Loko and Christopher drank beer. Both Reyes and S.M. testified that defendant drank at least five cans of Four Loko and became extremely drunk. At one point, defendant opened the door of the car while it was moving at approximately 45 miles an hour and threatened to jump out because he wanted to "rob somebody." Later, defendant said he had to go to the bathroom. Reyes pulled onto Checkers Street to let him out of the vehicle. Christopher got out too.
A defense expert testified that if an average male drank five cans of Four Loko in a two-hour period, he would have a blood alcohol content of .53 percent, a level that would likely kill an inexperienced drinker.
A couple of minutes later, Reyes heard yelling. She drove down Checkers towards the noise. She saw Christopher and defendant assaulting a man who was lying in the street. Christopher was kicking the man and defendant was swinging his arms at the man. When defendant got back in the front passenger seat of the Cadillac, he was holding a bloody knife. Christopher got in the backseat. Reyes testified that he too was holding a knife with blood on it. S.M. denied seeing anything in Christopher's hands; she said that he started crying when he reentered the car.
According to Reyes, during the car ride home, defendant said "fucking scrap," "you bitches better not say anything [or] I'll hurt you," and "I came up." S.M. likewise heard defendant threaten them but denied hearing the phrase "came up." While they were still in the car, defendant showed Reyes a wallet, cell phone, car keys, and a checkbook. Back at Reyes and S.M.'s house, defendant and Christopher washed the knives, removed their clothes and put them in black garbage bags, and attempted to burn the wallet, cell phone, car keys, and checkbook in the backyard.
The following day, Joel M. came to the house. In Reyes's presence, defendant told Joel that he had stabbed somebody and that he needed Joel to get rid of the knife and gloves. Reyes also saw defendant give Joel the bag of clothes and a knife, which Joel wrapped in one of Reyes's T-shirts. Reyes then drove Joel to defendant's residence located at 70 South 21st Street in San Jose.
2. Discovery of the Murder Victim
At about midnight on June 13, 2013, a Checkers Drive resident, K.S., heard somebody outside say, "give me your money." He also heard screaming followed by moaning. K.S. looked out the window. He saw a car accelerate quickly down the street and a man standing in the street holding his side. The man was walking towards a house, so K.S. was not too concerned. However, K.S. continued to hear moaning and, after about 15 minutes, decided to go check on the man. Outside, he found his neighbor lying in a pool of blood. K.S. called 911.
San Jose police were dispatched to the scene of the stabbing at 12:30 a.m. on June 13, 2013. Responding officers discovered a puddle of blood in the street and a trail of blood up to the front door of a residence on Checkers, where they found G.O., who was pronounced dead a short time later at the hospital.
3. The Investigation
Police interviewed Joel on June 14, 2013. That evening, officers searched defendant's residence. In a fenced-in area along the driveway, they found a trash bag containing a knife wrapped in a shirt. The knife had a 10-inch blade, which was partially serrated. At trial, Reyes identified the knife as belonging to defendant. On the deck of defendant's apartment, police found a trash bag containing a knife sheath, a melted blue cellphone, a partially burned checkbook bearing the names of G.O. and his wife, three gloves, and a partially burned white wicker basket.
On June 15, 2013, police searched the house where Reyes and S.M. lived. They discovered burnt material in the backyard. In the ground floor bedroom, they found a dresser with wicker drawers, one of which was missing. The partially burned white wicker basket found at defendant's residence appeared to be the same size and shape as the remaining wicker drawers in the dresser.
Police obtained defendant's cell phone records, including his text messages, pursuant to a search warrant. Those records showed that defendant sent Joel the following three text messages on the afternoon of June 13, 2013: "Fuck, some shit happened, and I need you right now"; "K, fa sho, I need your assistance, bro"; and "Please don't flake on me, brother. I need your help. You my only hope at this time." Shortly after midnight on June 14, 2013, defendant texted Joel: "Good lookin' out bro. I appreciate your assistance."
Police took defendant, Christopher, and Reyes into custody on June 15, 2013.
4. Forensic and DNA Evidence
The knife found at defendant's residence had a string tied to the handle. DNA testing identified the victim as a possible contributor to DNA found on that string. The prosecution's DNA expert testified that the odds of obtaining the same DNA profile from a random person in the United States was "1 in 12 billion in the African American population, 1 in 28 billion in the Caucasian population, and 1 in 97 billion in the Hispanic population." While G.O. was Asian, the expert was unable to give a statistical probability for the Asian population due to the lack of an Asian population database. But he opined that the probability that a random individual would share the same DNA profile was at least 1 in 2 billion.
A bloodstain on the Cadillac's front passenger door handle contained G.O.'s DNA. G.O.'s DNA also was found on the front passenger seatbelt.
Dr. Michelle Jorden, Santa Clara County's chief medical examiner, performed an autopsy on G.O. She testified that G.O. suffered six sharp force injuries. The first was "a very large, gaping stab wound . . . on the lower left back." That wound was three-and-a-half inches long and "at least" one-and-a-half inches deep. It included injuries to the left lung, the diaphragm, the liver, and the gallbladder. That wound had a serrated margin consistent with having been inflicted by a serrated blade. The second sharp force injury entered the right side of the abdomen and exited the body, indicating the knife was thrust all the way into the body. That wound measured two-and-a-quarter inches long and five-and-three-quarters inches deep and had a serrated margin. The third sharp force injury was to the lower right abdomen and measured one-and-a-quarter inches long and two-and-a-quarter inches deep. That wound did not have a serrated border. The fourth sharp force injury was a three-and-three-quarters-inch-long wound to the inner right forearm. The fifth sharp force injury was a serrated abrasion to the right elbow crease. The sixth sharp force injury was to the left thigh; it measured three-and-three-quarters inches long and five inches deep and did not have a serrated margin.
Dr. Jorden testified that G.O. also had experienced "marked head trauma." There was a bruise on the top of his head. The autopsy revealed a large area of bleeding under the scalp but on top of the skull, which Dr. Jorden testified is indictive of "significant blunt force" trauma. Dr. Jorden further observed a skull fracture and neuropathic examination revealed traumatic brain injury. Dr. Jorden testified that the victim's head injury was consistent with having been kicked or stomped while lying on the ground.
The cause of death was multiple blunt and sharp force injuries. Dr. Jorden opined that the head trauma alone "probably" would have rendered the victim "greatly incapacitated" and might have been fatal. She further opined that the stab wounds alone would have been fatal absent the head injury.
Dr. Jorden could not determine whether more than one knife inflicted the sharp force injuries because a serrated blade can inflict a wound without serrated margins. At trial, she was shown a picture of the knife found that defendant's residence. She opined that it could have inflicted some or all of the stab wounds.
5. Gang Evidence
a. Norteños
The prosecution's gang expert testified that Norteños are the street-level gang members associated with the Nuestra Familia, a Hispanic prison gang. He opined that the Norteño gang has three or more members and is associated with various symbols, including the number 14, the roman numeral XIV, the letter X (symbolizing 10) followed by the number four, a combination of one dot and four dots, and the color red. He noted that Norteños associate with variations on the number 14 because "N" is the fourteenth letter of the alphabet. The expert also opined that the primary activities of Norteños include committing robbery, assault with a deadly weapon, murder, and grand theft auto. The gang expert testified that Norteños may refer to themselves as "Northerners."
The expert testified that there are Norteño subsets, which frequently are geographically based. But he opined that not all Norteños belong to a subset gang. He also opined that Norteños will socialize and commit crimes with other Norteños, including those in different subsets.
The expert further testified that the Sureños are the Norteños' rivals. Sureños are associated with the color blue and the number 13. The word "scrap" is a derogatory term Norteños use to describe Sureños.
Finally, the gang expert opined that the term "come up" means to commit a crime in order to work one's way up in a gang.
b. Evidence of Defendant's Gang Membership
In 2006, defendant admitted to police that he had vandalized a sidewalk, a street, and a residence by spray painting "ESSJ" and "X4" on those locations. Defendant told a police officer in 2009 that he was a Norteño. During a separate police contact in 2009, defendant said he was a Northerner. At that time, defendant had one dot tattooed on his right elbow and four dots tattooed on his left elbow. In March 2013, defendant again told a police officer that he was a Northerner. That officer observed a tattoo of the Mayan number 14 on defendant's chin.
Defendant suffered a stab wound to the chest in June 2009. He told investigating officers that the suspects were "scraps." Defendant's cell phone records showed that he sent text messages referring to "scraps" in May and June of 2013. Reyes testified that defendant associated with Norteño gang members.
Based on the foregoing evidence, the gang expert opined that defendant was a Norteño gang member.
c. Evidence of Christopher's Gang Membership
In July 2011, San Jose police investigated an incident in which Christopher told an individual "We got a green light on you; I'm from Palmas; Palmas has a green light on you." The investigating officer testified that Palmas refers to a Norteño subset gang (El Hoyo Palmas) and that "green light" means permission from a gang to hurt or kill someone.
Later that same month, San Jose police officers observed a group of people, some of whom were dressed in red, hanging out in a park frequented by Norteño gang members. When the officers approached, several of the individuals ran away. The officers approached one of the individuals who did not flee—Christopher. He was not wearing red; he was wearing a black Oakland A's hat, which the officer testified was associated with the Varrio Azteca Norteño subset. Officers found a video of a blue bandana being burned on Christopher's cell phone.
In February 2013, Christopher and another male were taken into custody in connection with a stolen vehicle. At the time, Christopher was wearing a red bandana around his neck and the other male was wearing a red shirt.
In May 2013, police contacted Christopher and a second male. The second male had a tattoo of four dots and, according to the contacting officer, was a member of a Norteño subset gang known as Family on Every Side or FOES.
Based on the foregoing evidence, the gang expert opined that Christopher was a Norteño gang member.
B. Procedural History
Defendant was charged by information with murder (Pen. Code, § 187; count 1) and three counts of second degree robbery (§ 211)—one count each for robbing G.O. (count 2), the 7-Eleven clerk (count 3), and the 7-Eleven owner (count 4). The information alleged that defendant personally used a knife (§ 12022, subd. (b)(1)) in the commission of counts 1 and 2. It further alleged that he committed all counts for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(5)). A felony murder special circumstance (§ 190.2, subd. (a)(17)) also was alleged with respect to count 1. Finally, the information alleged that defendant had two prior strike convictions.
All further statutory references are to the Penal Code unless otherwise noted.
The same information also charged Christopher and Reyes with murder (with a felony murder special circumstance allegation) and three counts of second degree robbery. And it alleged gang allegations as to Christopher and Reyes on all counts, as well as that Christopher personally inflicted great bodily injury (§ 2022.7, subd. (a)) and personally used a knife (§ 12022, subd. (b)(1)) in the commission of counts 1 and 2.
Christopher's case later was transferred to juvenile court. Reyes entered into a negotiated plea agreement approximately one month before trial. Pursuant to that agreement, the information was amended to charge Reyes with voluntary manslaughter (§ 192, subd. (a)) with a gang allegation (§ 186.22, subd. (b)(1)(C)). Reyes pleaded no contest to voluntary manslaughter and two counts of second degree robbery and admitted the associated gang allegations. She also agreed to testify against defendant and Christopher. On the People's motion, the court dismissed the murder charge and the remaining second degree robbery charge against Reyes.
The case against defendant proceeded to trial in June 2017. After deliberating for approximately one day, the jury returned guilty verdicts on all counts. The jury also found the special circumstance allegation true as well as the gang allegations attached to counts 1 and 2. The jury found not true allegations that defendant personally used a knife in the commission of counts 1 and 2 and the gang allegations attached to counts 3 and 4.
Following a bench trial, the trial court found the prior conviction allegations true.
The trial court sentenced defendant to life without parole consecutive to 50 years to life consecutive to six years on November 22, 2017. The court imposed a 25-years-to-life sentence on count 3 pursuant to the Three Strikes law, a consecutive 25-years-to-life sentence on count 4 pursuant to the Three Strikes law, a consecutive term of life without parole on the special circumstance murder charged in count 1, and 25 years to life on count 2 plus the 10-year gang enhancement, stayed pursuant to section 654. The court also imposed a consecutive six-year term in a separate case, in which defendant pleaded guilty to assault with a deadly weapon in jail.
Defendant timely appealed.
II. DISCUSSION
A. Claims of Evidentiary Error
At trial, defendant sought to admit out-of-court statements Christopher made to police and to S.M. pursuant to the hearsay exception for statements against the declarant's interest. The trial court excluded the statements on grounds they were not against Christopher's penal interest. Defendant says that was reversible error.
1. Legal Principles and Standard of Review
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) The declaration against interest exception to the hearsay rule provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
"As applied to statements against the declarant's penal interest, in particular, the rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.]" (People v. Grimes (2016) 1 Cal.5th 698, 711, fn. omitted (Grimes).) To demonstrate that an out-of-court declaration is admissible as a declaration against penal interest, the proponent of the evidence must show (1) that the declarant is unavailable, (2) that the declaration was against the declarant's penal interest when made, and (3) that the declaration was sufficiently reliable to warrant admission despite its hearsay character. (Ibid.)
In determining whether a statement is truly against the declarant's interest, courts consider the statement itself, the circumstances under which it was made, the declarant's motivation, and the declarant's relationship to the defendant. (People v. Dalton (2019) 7 Cal.5th 166, 207.) Context is important. A facially inculpatory statement may prove to be " ' "merely [an] attempt [ ] to shift blame or curry favor" ' " or otherwise exculpatory when considered in context. (People v. Gallardo (2017) 18 Cal.App.5th 51, 71.) "[A] statement is more likely to satisfy the against-interest exception when the declarant accepts responsibility and denies or diminishes others' responsibility, . . . as opposed to attempting to assign greater blame to others, as in the example, ' "I did it, but X is guiltier than I am." ' [Citation.]" (Grimes, supra, 1 Cal.5th at p. 716.)
"We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion." (Grimes, supra, 1 Cal.5th at p. 711.)
2. Exclusion of Christopher's Statement to Police
a. Christopher's Statement to Police
Police interviewed Christopher on June 15, 2013. His version of events changed dramatically over the course of the interview. He began by claiming that he and S.M. had stayed in on the night of the robberies and the killing. Next, he admitted that he, S.M., Reyes, and defendant went out that night and that "a guy died." He explained that they "got beer" and were drinking and driving around until defendant said to stop the car. Christopher said that he and defendant got out of the car and that defendant stabbed a man. Christopher denied any involvement in the attack and denied that defendant kicked the victim. He said that defendant took the victim's wallet and phone and later burned them.
Police shifted gears, asking about how the group had obtained beer. Christopher claimed he stayed in the car while defendant went into a 7-Eleven. Later, Christopher admitted that he and defendant took beer from two 7-Elevens without paying. Eventually, Christopher acknowledged that they took beer from numerous 7-Elevens.
Upon further questioning about the stabbing, Christopher said that he and defendant got out of the car to go to the bathroom and the victim "was right there." Defendant approached the victim and asked for money, the victim ran, and defendant chased and stabbed him. Christopher maintained that he did not touch the victim. The detective told Christopher that "the house across the street had a camera" and that the video "shows more than [defendant stabbing the victim]. It wasn't just [the defendant]." Christopher responded by asking "What did I do?" Eventually, Christopher admitted that he had a knife but said that he did not stab the victim. Christopher said that he was the one who asked the victim, "What you got in your pockets?" He reiterated that the victim ran and defendant chased, stabbed, and robbed him. Christopher continued to deny that he hit or stabbed the victim. The detective again referenced the supposed video, saying "So you're telling me the video lied? The video was wrong?" After more back and forth, Christopher said that he hit the victim twice with his fist, but did not stab him.
This apparently was a ruse; we are aware of no video of the stabbing.
In his next description of the incident, Christopher said that he swung his knife at the victim once but missed. Subsequently, he said that he stabbed the victim "[p]robably like two times," but denied that there was any blood on the knife when he got back in the car. Christopher then said that defendant stabbed his whole knife into the victim. Christopher told the detective that he felt like he had to stab the victim because defendant, who was drunk and had a knife, looked at him and asked "ain't you gonna do nothing?" Christopher told the detective that there were two knives, both of which belonged to defendant.
Next, the detective told Christopher that "[s]omebody hit [the victim] over the head with something." Christopher denied knowing anything about that or seeing defendant hit the victim over the head. The detective then told Christopher that "[s]omebody was kicking him in the head" and asked who it was. Christopher responded that defendant kicked the victim in the head after stabbing and robbing him.
Christopher described the incident a final time. He said that he and defendant got out of the car and went to the bathroom in a bush in someone's front yard. When they were done, they saw the victim and defendant suggested that they rob him. They ran up to the victim. Christopher said something and the victim tried to run away. Defendant and Christopher chased him and "we stabbed him." Defendant continued to stab the victim until Christopher told him to "chill." Defendant then searched the victim's pockets. Christopher started to walk away. He looked back and saw defendant kicking the victim in the head "like . . . [he] wanted to kill the guy."
b. Motion to Introduce Excerpts of Christopher's Statement to Police
Defendant sought to advance a defense that Christopher alone stabbed and killed G.O. In support of that defense, he moved under Evidence Code section 1230 to admit 19 excerpts of Christopher's statement to police in which Christopher incriminated himself. Defendant maintained that the remainder of the statement, in which Christopher incriminated defendant, was inadmissible. The prosecutor argued that Christopher's statements did not qualify for admission under Evidence Code section 1230. The trial court agreed, characterizing the statement as a whole as "saying, 'I did it, but [defendant] is guiltier than I am.' " The court excluded the evidence.
c. The Trial Court Did Not Abuse its Discretion
It is undisputed that Christopher was unavailable as a witness, as required by Evidence Code section 1230, having exercised his Fifth Amendment right not to incriminate himself. At issue is whether Christopher's statements to police were against his penal interest at the time they were made.
Defendant argues that the excerpts he sought to admit were "totally against [Christopher's] interest. They said nothing about [defendant]." That argument ignores our Supreme Court's guidance that "context matters in determining whether a statement or portion thereof is admissible under the against-interest exception." (Grimes, supra, 1 Cal.5th at p. 717.) Indeed, "a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect." (People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) For example, context may reveal a facially inculpatory statement to be an attempt to " 'shift blame or curry favor' " with the authorities. (Ibid.)
The trial court did not abuse its discretion by concluding that, in context, Christopher's statements were not "truly self-inculpatory, [but] rather . . . attempts to shift blame or curry favor" with police. (Williamson v. United States (1994) 512 U.S. 594, 603.) Christopher incriminated himself only after the detective employed a ruse designed to make him believe that police already had sufficient evidence to link him to the murder and robbery of G.O. And, as defendant himself acknowledges in his opening brief, even after admitting culpability, "[Christopher] continued to claim that [defendant] was mostly responsible." Christopher "may have believed . . . he had little to lose and perhaps something to gain by admitting his role while attempting to minimize his participation and shift primary responsibility to [defendant]." (Duarte, supra, 24 Cal.4th at p. 617; see Advisory Committee Notes to Fed. Rules Evid., rule 804 ["a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest"].)
Federal Rule of Evidence Rule 804(b)(3) sets forth the federal hearsay exception for declarations against interest.
On reply, defendant offers a new interpretation of Christopher's statement. He says that, by the end of the interview, Christopher "effectively recanted all his earlier accusations that [defendant] did any stabbing" and "effectively admitted that he[, Christopher,] was the one holding the knife." We disagree with that characterization of Christopher's police statement. In Christopher's final version of events, it was defendant's idea to rob the victim; they both chased and stabbed the victim; defendant continued to stab the victim after Christopher stopped and until Christopher told him to "chill"; defendant went through the victim's pockets; and defendant kicked the victim in the head.
In sum, the trial court did not abuse its discretion in concluding that Christopher's statements were not truly against his penal interest.
3. Exclusion of Christopher's Out-of-Court Statement to S.M.
At the same time police interviewed Christopher, they also separately interviewed S.M. In the middle of Christopher's interview, police allowed Christopher and S.M. to talk alone in an interview room. Prior to speaking with S.M., Christopher had admitted to stealing beer from two 7-Elevens but had not made any inculpatory statements about the stabbing and robbery of G.O. The conversation between Christopher and S.M. was recorded. During that conversation, S.M. said to Christopher: "I told them that you didn't do it and you said you did." Christopher responded, "yeah." The remainder of their conversation is not in the record.
The parties do not direct us to any transcript of the recorded conversation in the record and we have not found one. We rely on defense counsel's in-court recitation of the relevant statements, as do the parties on appeal. Defense counsel described the statements outside the presence of the jury while memorializing for the record a prior exchange among defense counsel, the prosecutor, and the trial court during a side bar.
Defense counsel sought to introduce S.M.'s statement and Christopher's response under Evidence Code section 1230. The trial court excluded those statements. Defendant says that was error because Christopher's statement that "yeah" he "did it" was a declaration against penal interest.
The trial court did not abuse its discretion in concluding otherwise. As noted, " '[w]hether a statement is self-inculpatory or not can only be determined by viewing the statement in context.' " (Grimes, supra, 1 Cal.5th at p. 716.) Here, we do not have the requisite context. The statement itself—apparently confirming that Christopher told police he did "it"—is vague. The entirety of the conversation, which might elucidate the meaning of "it," is not in the record. Given the facts of the case, "it" could refer to any number of criminal or noncriminal acts. In short, the trial court did not abuse its discretion in concluding that defendant failed to carry his burden of showing that the declaration was against Christopher's penal interest.
B. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in his closing argument by knowingly arguing a false inference—namely, that only defendant, and not Christopher, stabbed G.O. Defendant says Christopher's excluded police statement, of which the prosecutor was aware, shows that inference to be false. Defendant concedes he did not object below and says that if that failure to object forfeited the claim, then trial counsel was ineffective in failing to object. We conclude that defendant suffered no prejudice, which defeats his claim regardless of the outcome of the forfeiture analysis.
1. Factual Background
In closing, the prosecutor argued: "What happens next is that the assault occurs, the victim goes down to the ground. Christopher . . . is kicking the victim. The defendant is punching the victim, which we now know is stabbing the victim." Defense counsel did not object. Elsewhere in his closing argument, the prosecutor twice argued that jurors could conclude that defendant stabbed the victim "three times or six times," based on the medical examiner's testimony that there were six knife wounds, three of which were serrated.
2. Legal Standards
a. Prosecutorial Misconduct
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established.' " (People v. Hill (1998) 17 Cal.4th 800, 819.) " 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
"[T]he prosecution has broad discretion to state its views regarding which reasonable inferences may or may not be drawn from the evidence." (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) "The prosecutor, however, may not mislead the jury," including by asking "the jurors to draw an inference that they might not have drawn if they had heard . . . evidence the judge had excluded." (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758; see United States v. Reyes (9th Cir. 2011) 660 F.3d 454, 462 [" 'it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt . . . .' "].)
"A defendant must timely object and request a curative instruction in order to preserve a claim of prosecutorial misconduct." (People v. Monterroso (2004) 34 Cal.4th 743, 785.)
Prosecutorial "[m]isconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127 [applying the standard for prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
b. Ineffective Assistance of Counsel
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
3. Analysis
Taken as a whole, the prosecutor's closing argument invited jurors to infer that defendant inflicted some or all of the victim's stab wounds. We are not convinced that the prosecutor knew an inference that defendant was the sole stabber to be false. While it is true that Christopher admitted to "probably" stabbing the victim twice, the veracity of that admission could reasonably be doubted. But we need not decide whether the prosecutor committed misconduct because even if he did, defendant suffered no prejudice. The jury found not true the allegation that defendant used a knife in the commission of the crimes against G.O. From that finding, we can deduce that jurors either concluded that Christopher was the sole stabber or were unable to unanimously agree as to whether defendant inflicted any of the stab wounds. In any event, the jury did not infer that defendant was the sole stabber. That is, to the extent the prosecutor encouraged jurors to make a potentially incorrect inference, they did not do so. In these circumstances, it is not reasonably probable that a result more favorable to the defendant would have been reached absent any suggestion by the prosecutor that defendant was the sole stabber. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, if the prosecutorial misconduct claim was preserved, any misconduct does not merit reversal. And, if it was not, the ineffective assistance of counsel claim fails for lack of prejudice. (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [the Watson standard is "substantially the same as the prejudice prong of Strickland"].)
C. Instruction with CALCRIM No. 373
The trial court instructed the jury with CALCRIM No. 373 as follows: "The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this trial. You must not speculate about whether those other persons have been or will be prosecuted. [¶] Your duty is to decide whether the defendant on trial here committed the crimes charged." CALCRIM No. 373 also includes the following optional language, in brackets: "[This instruction does not apply to the testimony of __________ <insert names of testifying coparticipants>.]" The jury was not instructed with that optional language.
Defendant contends the court had a sua sponte duty to give the above bracketed language to inform jurors that the instruction did not apply to Reyes and S.M. He says the court's failure to carry out that sua sponte duty constituted prejudicial error because, as given, the instruction precluded the jury from considering an aspect of his defense—that S.M. escaped prosecution and Reyes negotiated a favorable plea agreement by falsely implicating him.
1. Legal Principles and Standard of Review
When the trial court chooses to instruct on a particular legal point, it must do so correctly. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) "We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
2. Analysis
Defendant relies on the Bench Notes to CALCRIM No. 373, which provide: "If other alleged participants in the crime are testifying, this instruction should not be given or the bracketed portion should be given exempting the testimony of those witnesses. (People v. Carrera (1989) 49 Cal.3d 291, 312; People v. Sully (1991) 53 Cal.3d 1195, 1218; People v. Williams (1997) 16 Cal.4th 153, 226-227.) It is not error to give the first paragraph of this instruction if a reasonable juror would understand from all the instructions that evidence of criminal activity by a witness not being prosecuted in the current trial should be considered in assessing the witness's credibility. (People v. Fonseca (2003) 105 Cal.App.4th 543, 549-550.)" As discussed below, the foregoing Bench Notes do not support the conclusion that the jury instructions given in this case were prejudicially erroneous.
In the cases cited by the Bench Notes—Carrera, Sully, and Williams—CALCRIM No. 373 was not given. Instead, the jurors in those cases were instructed with a version of CALJIC No. 2.11.5 that precluded them from "discuss[ing] or giv[ing] any consideration as to why the [potential] other [perpetrator] is not being prosecuted in this trial or whether he or she has been or will be prosecuted." (People v. Carrera, supra, 49 Cal.3d at p. 312, fn. 9; People v. Sully, supra, 53 Cal.3d at p. 1218; People v. Williams, supra, 16 Cal.4th at p. 225, fn. 5.) By contrast, here, jurors were instructed only that they "must not speculate about whether those other persons have been or will be prosecuted." (Italics added.) It is not reasonably likely that jurors understood that instruction as precluding them from considering S.M.'s grant of immunity and Reyes's plea deal in assessing the credibility of those witnesses.
Moreover, the jury instructions as a whole made clear that jurors could consider the benefits S.M. and Reyes received for testifying in assessing their credibility. Specifically, the court instructed jurors with CALCRIM No. 226, regarding witness credibility, as follows: "[i]n evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Among the factors that you may consider are: . . . Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? . . . Was the witness promised immunity or leniency in exchange for his or her testimony?" Because "a reasonable juror, considering the whole of his or her charge, would understand that evidence of criminal activity by a witness not being prosecuted in the current trial should be considered in assessing the witness's credibility," the trial court did not err by failing to give the bracketed portion of CALCRIM No. 373. (People v. Fonseca, supra, 105 Cal.App.4th at p. 550.)
D. Challenges to the Sufficiency of the Evidence
1. Standard of Review
"[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.)
2. Count 4
Defendant says there was insufficient evidence to support his conviction for robbing Edward, the 7-Eleven owner, because Edward did not see the knife during the robbery and there was no other evidence of the use of force or fear.
a. Legal Principles
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear." (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)
"The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.) " 'To establish a robbery was committed by means of fear, the prosecution "must present evidence '. . . that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.' " ' [Citation.] Thus, the fear element is subjective in nature. [Citation.] However, the victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury. [Citation.] 'The fear is sufficient if it facilitated the defendant's taking of the property. Thus, any intimidation, even without threats, may be sufficient.' [Citations.]' " (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) "All that is necessary is that the record show ' " 'conduct, words, or circumstances reasonably calculated to produce fear. . . .' " ' [Citation.]" (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
b. Analysis
Edward testified that he did not try to stop defendant and Christopher from leaving with the stolen beer because it was dangerous given that there were two of them, they were cursing, and they might have been armed. Reasonable jurors could have inferred from Edward's testimony that he viewed defendant and Christopher's verbal aggression as carrying an implicit threat of harm if he resisted. Such jurors further could have inferred that Edward was afraid of being injured and that he did not try to regain the beer because of that fear. Thus, there was sufficient evidence that defendant and Christopher's conduct (e.g., cursing and working as a team) was reasonably calculated to produce fear, that Edward was afraid, and that such fear allowed the crime to be accomplished.
3. Gang Enhancements
Jurors found true the allegations that defendant carried out the murder and robbery of G.O. for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(5)). Defendant challenges those true findings as unsupported by sufficient evidence.
a. Legal Principles
The section 186.22, subdivision (b) gang sentence enhancement applies where the prosecution proves two things: (1) the underlying crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang" and (2) the underlying crime was committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b).) We shall refer to the first prong as "the gang-related prong" and the second prong as "the specific intent prong." (People v. Rios (2013) 222 Cal.App.4th 542, 564.) Defendant contends there was insufficient evidence as to the gang-related prong.
Section 186.22 defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission" of one or more enumerated offenses, "having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Section 186.22 defines the phrase "pattern of criminal gang activity" to mean "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" predicate offenses by two or more persons on separate occasions within certain time periods. (§ 186.22, subd. (e).) Defendant maintains there was insufficient evidence of the existence of a criminal street gang because all the predicate offenses were committed by juveniles, which he maintains violates his Sixth Amendment right to a jury's determination of every fact necessary to his guilt, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
b. Gang-Related Prong
The parties dispute whether there was sufficient evidence that the robbery and murder of G.O. were committed for the benefit of or in association with a criminal street gang. For the reasons set forth below, there was substantial evidence to support an inference that defendant and Christopher committed the crimes in association with the Norteño gang. We do not reach the question whether there also was substantial evidence the crimes were committed for the benefit of that gang.
A crime is committed in association with a gang if the "defendants relied on their common gang membership and the apparatus of the gang in committing" them. (People v. Albillar (2010) 51 Cal.4th 47, 60.) "A trier of fact can rationally infer a crime was committed 'in association' with a criminal street gang within the meaning of section 186.22, subdivision (b) if the defendant committed the offense in concert with gang members." (People v. Leon (2016) 243 Cal.App.4th 1003, 1021.)
Defendant says there was insufficient evidence that he and Christopher belonged to the same gang, such that the crimes cannot be said to have been committed in association with a criminal street gang. According to defendant, the gang expert testified that Christopher belonged to two Norteño subsets—El Hoyo Palmas and FOES—and testified that defendant belonged to the umbrella Norteño gang.
We disagree with defendant's characterization of the record. There was evidence that in July 2011, Christopher said he was from Palmas. And there was evidence that police contacted Christopher with a member of FOES in May 2013. The gang expert did not opine that Christopher was a member of Palmas or FOES at the time of the underlying crimes. Rather, he testified that Christopher's association and affiliation with different Norteño subsets over time "[s]trengthen[ed]" his opinion that Christopher is a Norteño gang member because "Norteño gang members commonly will associate or hang out and commit crimes with other Norteño gang members. It's not limited to only one specific subset or hood or gang that you are involved in." The expert's opinion, which was based on Christopher's various police contacts, constituted substantial evidence that Christopher was a member of the umbrella Norteño gang.
The gang expert also opined that the robbery and murder were committed in association with the Norteño gang because they were committed by two Norteños, defendant and Christopher, acting together. That opinion, along with the evidence that Christopher and defendant committed the robbery and murder of G.O. in concert, is sufficient to support the jury's conclusion that the crimes were gang-related, as required by section 186.22, subdivision (b).
c. Predicate Offense Evidence
Section 186.22, subdivision (e) expressly provides that "sustained juvenile petition[s]" constitute evidence of predicate offenses for purposes of establishing the requisite pattern of criminal gang activity. The prosecutor introduced the following evidence to establish a pattern of criminal gang activity: (1) Christopher's juvenile adjudication for assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)); (2) defendant's juvenile adjudication for assault on a peace officer by means likely to produce great bodily injury (§ 245, subd. (c)); (3) defendant's juvenile adjudication for robbery (§ 211); and (4) defendant's juvenile adjudication for vehicle theft (Veh. Code, § 10851, subd. (a)).
Defendant contends that the use of juvenile adjudications as predicate offenses violates Apprendi. There, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) Defendant maintains that a juvenile adjudication is not a "prior conviction," for Apprendi purposes, because there is no right to a jury trial in juvenile court proceedings.
As defendant acknowledges, our Supreme Court has held that "Apprendi does not bar the use of a constitutionally valid, fair, and reliable prior adjudication of criminal conduct to enhance a subsequent adult sentence simply because the prior proceeding did not include the right to a jury trial." (People v. Nguyen (2009) 46 Cal.4th 1007, 1025 [considering the use of juvenile adjudications as strikes under the Three Strikes law].) A majority of the federal circuits likewise has concluded that Apprendi does not bar the use of a juvenile adjudication to enhance a sentence, reasoning that juvenile adjudications provide sufficient procedural safeguards to ensure the reliability that Apprendi requires. (See United States v. Jones (3d Cir. 2003) 332 F.3d 688, 696; United States v. Wright (4th Cir. 2010) 594 F.3d 259, 264; United States v. Crowell (6th Cir. 2007) 493 F.3d 744, 750; Welch v. United States (7th Cir. 2010) 604 F.3d 408, 426; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033; United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1191.) The Ninth Circuit alone has concluded that "Apprendi's narrow 'prior conviction' exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt," such that it "does not include nonjury juvenile adjudications." (United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194-1195, fn. omitted.) Nguyen, which is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), compels us to reject defendant's contention that Apprendi bars the use of juvenile adjudications as predicate offenses for purposes of proving the gang enhancements.
E. Constitutionality of the Felony-Murder Special Circumstance
Defendant next challenges the constitutionality of the felony-murder special circumstance. He contends that recent changes to the felony-murder rule eliminated any distinction between the felony-murder special circumstance and the felony-murder offense for nonkiller accomplices. In his view, the absence of any distinction between the two means that the felony-murder special circumstance no longer performs the constitutionally required narrowing of death-eligible murders.
1. Legal Principles
a. Eighth Amendment Narrowing of Death-Eligible Murders and the Felony-Murder Special Circumstance
"The Eighth Amendment to the United States Constitution, which prohibits the infliction of 'cruel and unusual punishments,' imposes various restrictions on the use of the death penalty as a punishment for crime. One such restriction is that any legislative scheme defining criminal conduct for which death is the prescribed penalty must include some narrowing principle that channels jury discretion and provides a principled way to distinguish those cases in which the death penalty is imposed from the many cases in which it is not. A death-eligibility criterion that fails to meet this standard is deemed impermissibly vague under the Eighth Amendment." (People v. Bacigalupo (1993) 6 Cal.4th 457, 462.) In California, "special circumstances" set forth in section 190.2 perform the constitutionally required "narrowing" function. (Bacigalupo, supra, at p. 468.)
One such special circumstance is the felony-murder special circumstance set forth in section 190.2, subdivision (a)(17). It applies where the murder "was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit" one of various enumerated felonies (§ 190.2, subd. (a)(17)), including robbery (§ 190.2, subd. (a)(17)(A)). The felony-murder special circumstance applies to a nonkiller only if he or she "aid[ed], abet[ted], counsel[ed], command[ed], induce[d], solicit[ed], request[ed], or assist[ed] . . . in the commission of murder" "with the intent to kill" (§ 190.2, subd. (c)), or he or she "aid[ed], abet[ted], counsel[ed], command[ed], induce[d], solicit[ed], request[ed], or assist[ed] in the commission of [the underlying] felony" "with reckless indifference to human life and as a major participant . . ." (§ 190.2, subd. (d)).
b. Felony Murder
Prior to 2019, section 189 defined first degree felony murder as "[a]ll murder . . . which is committed in the perpetration of, or attempt to perpetrate" certain enumerated felonies including robbery. (Stats. 2010, ch. 178, § 51.) "The mental state required [was] simply the specific intent to commit the underlying felony . . . ." (People v. Cavitt (2004) 33 Cal.4th 187, 197.) Under the felony murder rule as stated in former section 189, "[l]iability for felony murder . . . extend[ed] to [nonkiller accomplices] who knowingly and purposefully participate[d] in the underlying felony even if they [took] no part in the actual killing." (People v. Dominguez (2006) 39 Cal.4th 1141, 1159.)
Senate Bill 1437, which became effective on January 1, 2019, "was enacted to 'amend 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, § 1, subd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds . . . section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' (§ 1170.95, subd. (a).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Following the enactment of Senate Bill 1437, section 189 continues to define first degree felony murder as "[a]ll murder . . . that is committed in the perpetration of, or attempt to perpetrate" certain enumerated felonies including robbery. (§ 189, subd. (a).) Newly added section 189, subdivision (e) now limits liability for felony murder to: (1) actual killers; (2) nonkillers who, "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"; and (3) nonkillers who were "major participant[s] in the underlying felon[ies] and acted with reckless indifference to human life . . . ."
c. Nature of the Challenge
In this case, the government did not seek the death penalty, and defendant was not sentenced to death. Accordingly, he lacks standing to assert an Eighth Amendment challenge to the felony murder special circumstance. (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907.) Instead, he asserts a vagueness challenge under the Due Process Clause. "Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk. Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." (Maynard v. Cartwright (1988) 486 U.S. 356, 361; see People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309 [same].)
2. Analysis
Before Senate Bill 1437, a nonkiller accomplice could be guilty of murder under the felony-murder doctrine even if he or she neither acted with intent to kill nor was a major participant in the underlying felony who acted with reckless indifference to human life. And only a subset of nonkillers convicted of felony murder was death eligible—namely, those who acted with intent to kill and those who were major participants in the underlying felony who acted with reckless indifference to human life. After Senate Bill 1437, a nonkiller accomplice can be guilty of felony murder only if he or she either acted with intent to kill or was a major participant in the underlying felony who acted with reckless indifference to human life. According to defendant, all nonkillers convicted of felony murder are now death eligible. In his view, it follows that the felony-murder special circumstance no longer narrows the class of people eligible for the death penalty. We reject defendant's claim for the following reasons.
We express no opinion as to the retroactivity of Senate Bill No. 1437, an issue that was not briefed by the Attorney General and that is currently pending before the California Supreme Court. (People v. Gentile (2019) 35 Cal.App.5th 932, review granted and depublication ordered Sept. 11, 2019, S256698.)
Defendant's challenge rests on the premise that a special circumstance that duplicates the underlying theory of murder is unconstitutional. Precedent from both the United States Supreme Court and the California Supreme Court compels us to reject that premise as flawed. State death penalty laws must narrow the class of death-eligible defendants from "every defendant convicted of a murder . . . to [some] subclass [or subclasses] of defendants convicted of murder." (Tuilaepa v. California (1994) 512 U.S. 967, 972.) The section 190.2 special circumstances do just that. Section 190.2, subdivision (a)(17) in particular accomplishes the required narrowing, as not every defendant convicted of murder is convicted of felony murder. Defendant suggests that the constitution compels a further narrowing of death-eligible defendants based on the underlying theory of murder. That is, in his view, it is unconstitutional for all defendants convicted under a particular theory of murder to be death eligible. But no such additional narrowing requirement exists. Indeed, the Supreme Court rejected a similar argument in Lowenfield v. Phelps (1988) 484 U.S. 231. There, the court considered the constitutionality of Louisiana's capital sentencing scheme, under which an individual found guilty of first degree murder was eligible for the death penalty only if the jury found at least one statutory aggravating circumstance existed. (Id. at p. 242.) In Lowenfield, the jury found a single aggravating circumstance, which "duplicated one of the elements of the [underlying] crime" of first degree murder. (Id. at p. 246.) The Supreme Court concluded that the scheme was constitutional despite that duplication.
California courts have relied on Lowenfield to hold that it is not unconstitutional for a special circumstance to duplicate elements of the conviction offense. (See People v. Rodriguez (1998) 66 Cal.App.4th 157, 164 [citing Lowenfield for the proposition that defendant's suggestion "that section 190.2(a)(21) contains a constitutional infirmity simply because it duplicates the elements which defined defendant's murder as . . . first degree murder . . . has already been decided to have no merit"]; People v. Catlin (2001) 26 Cal.4th 81, 158 ["first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment"]; People v. Edelbacher (1989) 47 Cal.3d 983, 1023, fn. 12 ["We do not understand defendant to contend that the lying-in-wait special circumstance is constitutionally infirm because it duplicates an element of first degree murder. As defendant no doubt recognizes, a contention to this effect would be meritless," citing Lowenfield].) We similarly conclude that, assuming section 190.2, subdivision (a)(17) duplicates the elements of felony murder for nonkiller accomplices, that duplication does not render it unconstitutional. (See People v. Johnson (2016) 62 Cal.4th 600, 636 [if lying-in-wait special circumstance were "identical to lying-in-wait first degree murder," it nevertheless "would satisfy federal constitutional requirements for death eligibility"].)
F. Cruel and Unusual Punishment
Defendant was 21 years old at the time he committed the charged crimes. He maintains that, given his relative youth, the imposition of a life without parole (LWOP) sentence constituted cruel and unusual punishment in violation of the federal and state constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
1. Defendant's Claims Are Forfeited
Defendant did not object below that his LWOP sentence was cruel and unusual. "A defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Accordingly, defendant has forfeited the claim that his sentence constitutes cruel and unusual punishment.
For the first time on reply, defendant contends trial counsel's failure to object to the sentence as cruel and unusual constituted ineffective assistance of counsel. That claim is waived, having been omitted from the opening brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [declining to resolve an ineffective assistance claim raised for the first time in defendant's reply brief.)
2. Defendant's Eighth Amendment Claim Fails on the Merits
Even if defendant's Eighth Amendment claim had been preserved, it would fail on the merits.
"The Eighth Amendment's prohibition of cruel and unusual punishment 'guarantees individuals the right not to be subjected to excessive sanctions.' [Citation.] That right . . . 'flows from the basic "precept of justice that punishment for crime should be graduated and proportioned" ' to both the offender and the offense. [Citations.]" (Miller v. Alabama (2012) 567 U.S. 460, 469 (Miller).) " '[T]he concept of proportionality is central to the Eighth Amendment,' " and is viewed "less through a historical prism than according to ' "the evolving standards of decency that mark the progress of a maturing society." ' [Citations.]" (Ibid.)
In Miller, the United States Supreme Court held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. (Miller, supra, 567 U.S. at p. 470.) The court reasoned that juveniles "are constitutionally different from adults for purposes of sentencing . . .[b]ecause juveniles have diminished culpability and greater prospects for reform, [making them] . . . 'less deserving of the most severe punishments.' [Citation.]" (Id. at p. 471.) The court noted "three significant gaps between juveniles and adults. First, children have a ' "lack of maturity and an underdeveloped sense of responsibility," ' leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children 'are more vulnerable . . . to negative influences and outside pressures,' including from their family and peers; they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child's character is not as 'well formed' as an adult's; his traits are 'less fixed' and his actions less likely to be 'evidence of irretrievabl[e] deprav[ity].' [Citation.]" (Ibid.)
Defendant urges us to extend Miller's reasoning to this case on the theory that 21-year-olds—like juveniles—lack of maturity, have an underdeveloped sense of responsibility, and are particularly vulnerable to negative influences. He points to research (from outside the appellate record) showing that the brain continues to develop beyond the age of 18, such that even people in their early twenties lack full neurological maturity.
The Supreme Court acknowledged similar points in Roper v. Simmons (2005) 543 U.S. 551, 574, noting that "[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach." Nevertheless, the court concluded that "a line must be drawn" for purposes of the Eighth Amendment and the court drew that line at "the point where society draws the line for many purposes between childhood and adulthood"—age 18. (Roper v. Simmons, supra, at p. 574.) Decisions of the United States Supreme Court on questions of federal constitutional law are binding on this court. (People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6.) Accordingly, we are compelled to reject defendant's argument that mandatory LWOP sentences for 21-year-olds violate the Eighth Amendment. (See People v. Perez (2016) 3 Cal.App.5th 612, 617 [declining to extend reasoning of Miller to 20-year-old defendant].)
3. Defendant's Claim Under the California Constitution is Waived
Article I, section 17 of the California Constitution prohibits a punishment that is "grossly disproportionate to the offense for which it is imposed." (People v. Dillon (1983) 34 Cal.3d 441, 478, fn. omitted, superseded by statute on another ground as stated in People v. Chun (2009) 45 Cal.4th 1172, 1186.) In determining whether a sentence is cruel or unusual, California courts use three "techniques": (1) considering the nature of the offense and the offender; (2) comparing the challenged punishment to those imposed by the same jurisdiction for more serious crimes; and (3) comparing the challenged punishment to those imposed by other jurisdictions for the same crime. (In re Lynch (1972) 8 Cal.3d 410, 425-427, superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Defendant does not assert that his sentence is disproportionate under any of the techniques described in Lynch. Nor does he cite any cases applying the state standard. The one case he cites, People v. Caballero (2012) 55 Cal.4th 262, was decided under the Eighth Amendment and did not discuss the state constitution's prohibition on cruel or unusual punishment. Given defendant's failure to furnish any " 'legal argument with citation of authorities' " in support of his claim that his sentence violates the state constitution's prohibition against cruel or unusual punishment, we " 'treat [that claim] as waived, and pass it without consideration.' " (People v. Stanley (1995) 10 Cal.4th 764, 793.)
G. Cumulative Error
Defendant contends that the cumulative effect of the errors he asserts was to deprive him of his due process rights. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) We have assumed a single error—that the prosecutor committed misconduct by urging a false inference—so there are no errors to cumulate.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
BAMATTRE-MANOUKIAN, J.