Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA060732 Sanjay T. Kumar, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Deputy Attorneys General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Anthony Hernandez of first degree felony murder, robbery and conspiracy to commit robbery and found true special circumstance allegations the murder was committed during a robbery and burglary. The jury also found true special allegations the robbery was committed by Hernandez acting in concert with others. On appeal Hernandez contends the trial court erred in denying his motion to suppress incriminating statements he made during a police interrogation because they were obtained in violation of his Fifth Amendment right to remain silent and privilege against self-incrimination. He also asserts the trial court made several sentencing errors. We modify the sentence to correct errors resulting in an unauthorized sentence. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Hernandez was charged in an amended information with murder (Pen. Code, § 187, subd. (a)), robbery (§ 211) and conspiracy to commit robbery (§§ 182, 211). As to the murder (count 1), it was specially alleged Hernandez had committed the offense while engaged in a robbery and burglary (§§ 190.2, subd. (a)(17)(A), (G)). As to the robbery (count 2), it was specially alleged Hernandez had committed the offense in concert with two or more persons (§ 213, subd. (a)(1)(A)). Hernandez pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
2. The Robbery and Murder of Jose Carrillo
On January 11, 2008 Itzel Gutierrez recruited her friend, Erika Rodriguez, and Rodriguez’s friends, Armando Torrez and Hernandez, to rob Gutierrez’s stepfather, Jose Carrillo, and to split the proceeds of the robbery. Pursuant to the plan they crafted, Gutierrez telephoned Carrillo and told him to check into a local motel in Sylmar, where she promised she would provide him with a prostitute and drugs. After Carrillo checked into the motel, Rodriguez posed as a prostitute and knocked on Carrillo’s door. Carrillo opened the door, and Rodriguez entered the room. Minutes later, Torrez and Hernandez knocked on the door. When Carrillo opened the door, Torrez and Hernandez stormed the room. Hernandez placed Carrillo in a chokehold, and both he and Torrez repeatedly punched him. Hernandez then handed Rodriguez a black bag Carrillo had brought with him to the motel. Rodriguez took Carrillo’s bag and left the room. Later that morning, the motel manager opened the door to Carrillo’s room and found Carrillo’s dead body. Carrillo was lying face down on the floor, “hog-tied” with bed sheets that had been removed from the bed. One of the sheets was knotted around Carrillo’s neck. The Los Angeles County Coroner determined Carrillo died of asphyxia due to strangulation.
3. Hernandez’s Incriminating Statements to Police
Following his arrest Hernandez was advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).) Hernandez waived those rights and told detectives from the Los Angeles Police Department that Gutierrez had recruited him, Rodriguez and Torrez to rob Carrillo. Hernandez said he agreed to the plan because he wanted to obtain money to pay his brother’s lawyer. The plan was for Rodriguez to distract Carrillo while Hernandez and Torrez took his credit cards and car keys. The plan went awry, however, when Torrez tied the bed sheet around Carrillo’s neck while Hernandez was in the bathroom. When Hernandez emerged from the bathroom, he saw Carrillo tied up on the ground. Carrillo appeared weak and was making gagging and choking sounds. Hernandez and Torrez left the room. Neither Hernandez nor Torres meant to kill Carrillo.
4. Hernandez’s Motion To Suppress His Statements to the Police
Prior to trial Hernandez, who was 17 years old at the time he committed the charged offenses, moved to suppress his statements to the police. According to the evidence at the suppression hearing, Hernandez was interrogated by Los Angeles Police Detective John Macchiarella at 11:00 a.m. on January 13, 2008 in an interview room at the Mission Hills Police Station. Macchiarella began the interview by giving Hernandez the prophylactic advisement of rights identified in Miranda, supra, 384 U.S. 436, including his right to remain silent. Hernandez said he understood his rights and proceeded to answer Macchiarella’s questions. At some point close to the end of the 50-minute interview, Hernandez told Macchiarella he was tired and wanted to sleep:
“[Hernandez]: I didn’t want to be here. I just want to go to juvenile hall.
“[Macchiarella]: Okay. So you want to end this?
“[Hernandez]: I want to talk to you.
“[Macchiarella]: Huh?
“[Hernandez]: I want to talk to you.
“[Macchiarella]: Well, Anthony, this is your opportunity to talk to me today. Tomorrow, you might want to talk to somebody else. Monday, you might want to talk to somebody else. This is your opportunity to talk to me today. Okay, I’m your best bet, bro....
“[Hernandez]: I don’t want to be here.
“[Macchiarella]: Look at me, man. Do you want to end this? Are you sure?
“[Hernandez]: Yeah.
“[Macchiarella]: You don’t want to get your side of the story out? Why not?
“[Hernandez]: I want to go to sleep....
“[Macchiarella]: You want to get some sleep and then later talk to me tonight?
“[Hernandez]. Yeah, I want to sleep.
“[Macchiarella]: No, not here. Over at juvenile hall. Do you want me to come back tonight and talk to you?
“[Hernandez]: Will you come talk to me at juvenile hall?
“[Macchiarella]: Yeah. I’ll come talk to you there.”
Just before noon Detective Macchiarella stepped out of the interview room and told Hernandez he would be going to juvenile hall in about an hour. A few minutes later, Detective Gene Parshall began questioning Hernandez. Parshall did not readvise Hernandez of his Miranda rights. During the interview with Parshall, which lasted a little more than one hour, Hernandez made his incriminating statements.
In his motion to suppress his statements, Hernandez acknowledged he had been properly advised of his rights pursuant to Miranda by Detective Macchiarella at the beginning of the interrogation and had initially waived them, but argued that, during the interview, he had invoked his right to remain silent when he stated he wanted to go to sleep and the interrogating officers improperly disregarded the invocation and continued to question him. He also argued Detective Parshall should have readvised him of his Miranda rights prior to resuming the interview.
The trial court denied the motion to suppress, concluding Hernandez had not unequivocally invoked his right to remain silent. The court also ruled that, because the Miranda warnings had been given approximately one hour earlier by Detective Macchiarella at the inception of the interview, and the two interrogations were sufficiently close in time to be relatively contemporaneous, there was no need for Detective Parshall to give renewed Miranda warnings prior to questioning Hernandez.
5. The Verdict and Sentence
The jury convicted Hernandez of first degree felony murder and found true the special circumstance allegations that the murder had been committed while Hernandez was engaged in a robbery and a burglary. The jury also convicted Hernandez of first degree robbery and conspiracy to commit robbery and found true the special allegation that Hernandez had committed the robbery in concert with two or more people. The trial court sentenced Hernandez to life without the possibility of parole for the felony murder with special circumstances (count 1). The court sentenced Hernandez to the “upper term of nine years” for first degree robbery (count 2) to run concurrently with his sentence on the murder count, and imposed and stayed under section 654 a 25-year-to-life term for the conspiracy count (count 3).
The jury was properly instructed that Hernandez could be found guilty of first degree murder under a theory of felony murder if it found beyond a reasonable doubt, “1. The defendant committed or attempted to commit or aided and abetted, or was a member of a conspiracy to commit robbery and/or burglary; [¶] 2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more of the members of the conspiracy commit robbery or burglary; [¶] 3. If the defendant did not personally commit or attempt to commit robbery or burglary, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed or attempted to commit robbery or burglary; [¶] 4. While committing or attempting to commit robbery or burglary the perpetrator did an act that caused the death of another person;[¶] AND [¶] 5. There was a logical connection between the act causing the death and the robbery or burglary or attempted robbery or burglary....” (See CALCRIM No. 540B; § 189.)
DISCUSSION
1. The Trial Court Did Not Err in Denying Hernandez’s Motion to Suppress
a. Standard of review
When reviewing a trial court’s decision denying a motion to suppress statements purportedly obtained in violation of the defendant’s Fifth Amendment rights, we defer to the court’s resolution of disputed facts if supported by substantial evidence. (People v. Smith (2007) 40 Cal.4th 483, 502; People v. Stansbury (1995) 9 Cal.4th 824, 831.) Based on those facts, as found, and the undisputed facts, we independently review the trial court’s legal rulings. (Smith, at p. 502; People v. Weaver (2001) 26 Cal.4th 876, 918.)
b. Governing law
“As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that ‘he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.’” (People v. Martinez (2010) 47 Cal.4th 911, 947 (Martinez), quoting Miranda, supra, 384 U.S. 436, 479.) Once a suspect invokes his right to remain silent, law enforcement must “‘scrupulously honor[]’” the invocation and cease questioning him or her. (Michigan v. Mosley (1975) 423 U.S. 96, 103 [96 S.Ct. 321, 46 L.Ed.2d 313]; accord, Berghuis v. Thompkins (2010) ___ U.S. ___ [130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098] (Berghuis).)
The invocation of the right to remain silent, like the invocation of the right to counsel, must be both unambiguous and unequivocal. (Berghuis, supra, ___ U.S. at p. ___ [130 S.Ct. at p. 2259]; Martinez, supra, 47 Cal.4th at pp. 947-948.) As the United States Supreme Court recently explained, “There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and... provide[s] guidance to officers’ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.] Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. [Citations.] Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’ [Citation.] But, ‘as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.’” (Berghuis, at p. ___ [130 S.Ct. at p. 2260]; accord, Martinez, at pp. 947-948 [“‘[i]n order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect “must unambiguously” assert his right to silence...’”]; People v. Stitely (2005) 35 Cal.4th 514, 535 [“It is not enough for a reasonable police officer to understand that the suspect might be invoking his right. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required... either to ask clarifying questions or to cease questioning altogether.”].)
c. Hernandez did not unambiguously invoke his right to remain silent
Hernandez contends he unambiguously invoked his right to remain silent when, in response to Detective Macchiarella’s question, “Do you want to end this?” he said, “yeah, ” “I want to go to sleep.” Although Hernandez acknowledges that he also told Macchiarella at the same time that he “wanted to talk to him, ” he contends his statements, taken together and in context, plainly evinced an intent to exercise his Fifth Amendment right to remain silent and terminate the interrogation.
Hernandez advances exclusively a Fifth Amendment challenge in accordance with Miranda, supra, 384 U.S. 436 and does not argue (nor did he argue to the trial court) that his confession was coerced in violation of his federal due process rights. (See, e.g, Dickerson v. United States (2000) 530 U.S. 428, 433-434 [120 S.Ct. 2326, 147 L.Ed.2d 405] [admission at trial of a defendant’s statements made involuntarily to government officials violates defendant’s due process rights].) Accordingly, we do not consider that question.
A request for a break from interrogation, whether due to fatigue or frustration, is not the functional equivalent of an unambiguous invocation of the right to remain silent. (See People v. Rundle (2008) 43 Cal.4th 76, 115 [defendant’s request to return to his jail cell due to a headache, coupled with expressions of desire to resume interview when headache went away, did not constitute invocation of Fifth Amendment right to remain silent] (Rundle), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Martinez, supra, 47 Cal.4th at pp. 951-952 [“I don’t want to talk anymore right now” was not unequivocal invocation of right to remain silent; defendant’s statement could reasonably be construed as desire not to discuss the matter at that moment, rather than a bar to further questioning, (italics added)].)
Hernandez insists his language amounted to much more than a request for a break. Seizing on an observation made by the Supreme Court in Michigan v. Mosley, supra, 423 U.S. 96 that a defendant, through the exercise of his or her Fifth Amendment right to remain silent, “can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation” (id. at p. 104, italics added), Hernandez contends his Fifth Amendment right to remain silent essentially encompasses the right to define the temporal boundaries in which the interrogation occurs. To some extent, as the Supreme Court recognized in Mosley, that is true: By virtue of exercising his or her Fifth Amendment right to remain silent, a defendant controls whether or not the interrogation continues. (See ibid.) The question raised here, however, is not whether Hernandez had the right to terminate the interrogation by exercising his right to remain silent, but whether he actually, unambiguously, invoked that right.
In claiming his statements amounted to an unequivocal invocation of his Fifth Amendment rights, Hernandez likens his remarks to those made by the defendant in People v. Peracchi (2001) 86 Cal.App.4th 353 (Peracchi), in which, in response to questions made directly following Miranda advisements, the defendant stated, “I do not want to discuss it right now.” The Court of Appeal found that the defendant’s statement amounted to an unambiguous refusal to waive his Fifth Amendment rights and that further questioning as to the reasons defendant did not want to talk violated his right to remain silent. (Peracchi, at pp. 359-361.)
Conspicuously missing from Hernandez’s analogy, however, is any mention of Martinez, supra, 47 Cal.4th 911, in which the Supreme Court found a similar statement, “I do not want to talk anymore right now, ” when taken in context, fell short of an unambiguous invocation of the defendant’s right to remain silent. In Martinez, the defendant, Tommy Martinez, waived his Miranda rights and participated in a lengthy interview. At some point close to the end of the session, the interrogating police officer pointed out the inconsistencies in Martinez’s version of events and told Martinez he would “let him take a break” to “think about it.” The officer stopped the audiotape of the interrogation, preparing for a brief interruption. At that point, Martinez stated, “I don’t want to talk anymore right now.” The police officer told Martinez he did not have to continue to talk right then; they were going to take a break and again suggested Martinez “think about it.” Martinez responded, “Okay.” When the interrogation resumed later that afternoon, Martinez was asked whether he had “thought about” things. Martinez responded “not really.” Later, he made incriminating statements. (Id. at pp. 945, 951.)
In distinguishing the statement in Martinez from the very similar statement in Peracchi, the Court observed Peracchi’s remark was made at the inception of the interview, unfettered by surrounding statements that, in context, could render it ambiguous, while Martinez’s statement was made toward the end of a lengthy interview: “Although defendant’s statement here is similar to the one uttered in Peracchi, the context in which it was uttered is markedly different. Peracchi involved a Miranda waiver, not an invocation during the course of an interrogation. ‘Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.’ [Citation.] The defendant in Peracchi invoked his right to silence at the outset of the interrogation, making clear he did not wish to waive his right to silence at that time. Defendant in the present case made the statement after a lengthy interrogation session and after the detective made clear the session was over. The resumption of questioning later that day did not, as in Peracchi, amount to a failure to heed a suspect’s clear refusal to waive his right to silence.” (Martinez, supra, 47 Cal.4th at p. 951.)
Here, as in Martinez, supra, 47 Cal.4th 911 and Rundle, supra, 43 Cal.4th 76, the statements in question were made after Hernandez had waived his Fifth Amendment rights and participated in a lengthy interview. Although Hernandez emphasizes he not only expressed fatigue but asked to go to juvenile hall to sleep and was assured he could after an hour, those facts, in context, do not alter our analysis. Like the defendant in Rundle who requested to return to his jail cell to nurse his headache, but did not otherwise evince an unwillingness to talk to his interrogators, Hernandez did not unambiguously invoke his right to remain silent. Accordingly, Hernandez’s interrogators were under no obligation to cease questioning him. (See Berghuis, supra, __ U.S. at p. __ [130 S.Ct. at p. 2259].)
In his motion to suppress his statements, Hernandez also argued he should have been given new Miranda advisements prior to the “second” interview with Detective Parshall. In denying the motion, the trial court ruled a second advisement was not required. (See People v. Smith (2007) 40 Cal.4th 483, 504 [“Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and ‘the subsequent interrogation “is reasonably contemporaneous” with the prior knowing and intelligent waiver.’”].) Hernandez has abandoned that argument on appeal.
2. Hernandez’s Sentence for Robbery Must Be Modified To Comply with Section 654’s Proscription Against Multiple Punishment
Hernandez was sentenced to a term of nine years for first degree robbery, to run concurrently with his life sentence without the possibility of parole for the felony murder with special circumstances. Hernandez asserts, and the People concede, the trial court should have stayed his sentence for robbery pursuant to section 654, which prohibits punishment for both felony murder and the underlying felony. (See People v. Holt (1997) 15 Cal.4th 619, 692 [terms for underlying felony properly stayed under § 654 when defendant was also convicted of felony murder]; People v. Wader (1993) 5 Cal.4th 610, 670 [term imposed for robbery properly stayed when defendant also convicted of felony murder based on commission of that offense]; see generally People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may modify unauthorized sentence even absent objection in trial court “because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)
Section 654 provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....”
3. Hernandez’s Sentence for Conspiracy Must Be Modified To Comport with the Crime Charged and the Jury’s Findings
The trial court sentenced Hernandez to an indeterminate term of 25 years to life for conspiracy pursuant to People v. Hernandez (2003) 30 Cal.4th 835, 870, which held, in accordance with section 182, subdivision (a), that conspiracy to commit murder has the same punishment as first degree murder without special circumstances. However, Hernandez was not charged with conspiracy to commit murder; and the jury did not find him guilty of that offense. Instead, as the People acknowledge, Hernandez was charged with, and convicted of, conspiracy to commit robbery of an unspecified degree.
As a modified sentence for conspiracy to commit robbery, Hernandez contends he should receive no more than a five-year determinate term, the upper term for second degree robbery, because the jury made no findings as to the degree of the robbery planned by the conspirators. (See §§ 182, subd. (a) [When two or more persons conspire to commit a felony, “they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree”]; 213, subd. (a)(2) [prescribing sentencing triad of two, three or five years for second degree robbery].)
The People, on the other hand, urge the sentence be corrected to impose a nine-year term, the upper term for first degree robbery of an inhabited dwelling when a defendant acts in concert with two or more persons. (§ 213, subd. (a)(1)(B).) Emphasizing the jury’s finding Hernandez committed robbery of an inhabited dwelling, thereby making the robbery first degree, the People insist the jury’s finding necessarily includes a finding that first degree robbery was the object of the conspiracy. However, Hernandez was not charged with conspiracy to commit first degree robbery, and the jury was never asked to affix the degree of the robbery that was the object of the conspiracy. While the jury may well have concluded Hernandez conspired to commit first degree robbery of an inhabited dwelling had it been asked, those findings cannot be inferred simply from its conviction of Hernandez for first degree robbery. (See, e.g., People v. Swain (1996) 12 Cal.4th 593, 599-600 [“Conspiracy is an inchoate crime.... ‘As an inchoate crime, conspiracy fixes the point of legal intervention at [the time] of the agreement, ’” not at the time of the target offense.]; id. at p. 600 [“‘[t]o sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended tocommit the elements of that offense’”]; see generally People v. Dewberry (1959) 51 Cal.2d 548, 556 [degree of offense must be proved beyond reasonable doubt].)
Although some of the overt acts alleged in the information indicate the conspirators planned to commit a first degree residential robbery (see § 212.5), not all of the alleged overt acts connote the robbery of an inhabited dwelling. For example, it was alleged, “Armando Torrez, Itzel Gutierrez, Erika Rodriguez and the defendant met together in person to plan the robbery of the victim.” Because the jury was properly instructed it need only find one of the participants engaged in one of the enumerated overt acts, we cannot conclude beyond a reasonable doubt the object of the conspiracy was intended to be first degree robbery.
Based on the court’s pronouncements at sentencing expressly stating an intent to impose the upper term, we agree with Hernandez in theory that his sentence for conspiracy to commit robbery should have been five years (see § 213, subd. (a)(2)). However, any sentence on the conspiracy count, as the trial court recognized, is properly stayed pursuant to section 654. (See People v. Lewis (2008) 43 Cal.4th 415, 539 [under § 654 a “defendant may not be punished for both the underlying crimes and the conspiracy” when “there was no showing that the object of the conspiracy was any broader than the commission of the underlying crimes”]; In re Romano (1966) 64 Cal.2d 826, 828-829 [same].)
Because the abstract of judgment correctly notes imposition of sentence for conspiracy was stayed pursuant to section 654, there is no need to modify it.
4. Hernandez’s Sentence of Life Without the Possibility of Parole for First Degree Felony Murder Is Not Cruel and Unusual Punishment
The Eighth Amendment’s ban on cruel and unusual punishment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In Graham v. Florida (2010) __ U.S. __ [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham), the Supreme Court recognized that punishments prohibited as unconstitutionally disproportionate to the offense generally fall in two classifications: Those that are categorically prohibited, and those that are prohibited based on the facts of a particular case. (Id. at pp. 2021-2022.) The Court then held life sentences without the possibility of parole for juvenile offenders who committed nonhomicide offenses fell into the first category and were categorically prohibited by the Eighth Amendment. (Id. at pp. 2022-2023.)
Relying on Graham, supra, __ U.S. __ [130 S.Ct. 2011], and emphasizing his status as a juvenile at the time the offenses were committed, as well as the undisputed evidence it was Torrez who wrapped bed sheets around Carrillo’s neck resulting in Carrillo’s asphyxiation, Hernandez contends his sentence of life without the possibility of parole for felony murder with special circumstances violates the Eighth Amendment. Graham, however, expressly limited its categorical prohibition to sentences of life without the possibility of parole imposed on juveniles who had committed nonhomicide offenses. (See id. at p. 2023 [“Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide.... The instant case concerns only those juvenile offenders sentenced to life without parole solely for nonhomicide offenses.”].) Here, Hernandez’s conviction for special circumstances felony murder required findings he was a major participant in the robbery and either intended to kill or acted with reckless disregard for human life. This was a “homicide offense”; and Graham is inapplicable.
There is no prohibition on sentences of life without the possibility of parole for juvenile offenders convicted of special circumstances felony murder. (See, e.g., People v. Guinn (1994) 28 Cal.App.4th 1130, 1147 [imposition of life sentence without possibility of parole on 17-year-old for felony murder was not “cruel and unusual” punishment even though the defendant was not the killer].)
Generally, when an Eighth Amendment challenge has been made, we would also consider whether the defendant’s sentence is unconstitutionally disproportionate based on the particular facts of his or her case. However, because Hernandez solely relies on the categorical prohibition stated in Graham, supra, __ U.S. __ [130 S.Ct. 2011], and did not advance, either here or in the trial court, an “as applied” challenge to his sentence, that issue is forfeited. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must be raised in trial court because they require fact-specific determinations about the offense and the offender]; People v. Kelley (1997) 52 Cal.App.4th 568, 583; see also People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very [appellate] brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’”].)
5. The Parole Revocation Fine Must Be Stricken
The trial court imposed a $200 parole revocation fine pursuant to section 1202.45. (See § 1202.45 [“[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount....”].) Because Hernandez was properly sentenced only to an indeterminate term of life without the possibility of parole, and not to any determinate terms, imposition of a parole revocation fine is not proper. (See People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1097; see People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
DISPOSITION
The judgment is modified to stay imposition of sentence for first degree robbery and conspiracy to commit robbery pursuant to section 654 and to strike the $200 parole revocation fine. As modified the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J., ZELON, J.